[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3421-S3439]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        USA FREEDOM ACT OF 2015

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.R. 2048, which the clerk will report.
  The senior assistant legislative clerk read as follows:

       A bill (H.R. 2048) 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.

  Pending:

       McConnell/Burr amendment No. 1449, in the nature of a 
     substitute.
       McConnell amendment No. 1450 (to amendment No. 1449), of a 
     perfecting nature.
       McConnell amendment No. 1451 (to amendment No. 1450), 
     relating to appointment of amicus curiae.
       McConnell/Burr amendment No. 1452 (to the language proposed 
     to be stricken by amendment No. 1449), of a perfecting 
     nature.
       McConnell amendment No. 1453 (to amendment No. 1452), to 
     change the enactment date.

  Mr. DURBIN. Mr. President, I ask unanimous consent to speak for 2 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


 Remembering Hadiya Pendleton and Commemorating National Gun Violence 
                             Awareness Day

  Mr. DURBIN. Mr. President, on January 29, 2013, Hadiya Pendleton was 
gunned down while standing in a park on the South Side of Chicago. 
Hadiya was a talented, beautiful, caring young woman with a bright 
future ahead of her. She was 15 years old, a sophomore honor student at 
King College Prep. Her family described her as a spectacular source of 
joy and pride for them.
  One week before her death, Hadiya was here in Washington with her 
school band, performing for President Obama's second inauguration. She 
was thrilled by that opportunity. But a few days later, she was gone, 
murdered by men who mistook her and friends for members of a rival 
gang.
  What a senseless tragedy to lose children to gun violence. It happens 
every day in America. Overall, on average, 88 Americans are killed by 
gun violence every day.
  Today, June 2, 2015, would have been Hadiya Pendleton's 18th 
birthday. Today also marks the first annual National Gun Violence 
Awareness Day. It is an idea that was inspired by Hadiya's family and 
friends in Chicago. They decided they would ask us to wear something 
orange today. It is a color that hunters use when they are in the woods 
to make sure that no one shoots them.
  All across the Nation, Americans are wearing orange in tribute to 
Hadiya Pendleton, in tribute to the tens of thousands of other 
Americans killed by gun violence every year, and in support of a simple 
goal: Keep our kids safe. I am proud to join them in wearing orange 
today. I want to commend Hadiya's parents--my friends--Nate and Cleo, 
her brother Nate, Jr., and her friends who have turned their pain into 
purpose.
  They are working to reduce the scourge of gun violence and to spare 
other families and loved ones what they have gone through. I hope 
lawmakers here in Washington and throughout the Nation will pay 
attention and commit themselves to do something about these terrible 
shootings and deaths. We need to do all that we can to keep guns out of 
the hands of those who would misuse them and, especially, keep our 
children safe.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, in the aftermath of the terrorist attacks 
on our country on 9/11/2001--terrorist attacks that killed some 3,000 
people--I authored legislation, along with former Senator Joe Lieberman 
of Connecticut, to implement the recommendations of the 9/11 Commission 
to reform and restructure the intelligence community, to improve its 
capabilities, and also to increase accountability and oversight.
  Now, this law is different and distinct from the PATRIOT Act. Our law 
established the Office of the Director of National Intelligence to 
coordinate all of the agencies involved in intelligence gathering so 
that we would reduce the possibility of the dots not being connected 
and to allow terrorist attacks and plots to be detected and thwarted.
  Our legislation also created the National Counterterrorism Center, 
which helps to synthesize the information across government and share 
it with State and local governments to help keep us safer. Our bill 
created the Privacy and Civil Liberties Oversight Board, and it 
installed privacy officers in the major intelligence agencies.
  But our law, the Intelligence Reform and Terrorism Protection Act, 
shared the common goal of the PATRIOT Act of better protecting our 
Nation from terrorist attacks because none of us who lived through that 
terrible day

[[Page S3422]]

ever wanted to see Americans die again because our Nation failed to use 
the tools and capabilities it had to prevent terrorist attacks.
  We have had terrorist attacks since that time. The Boston Marathon is 
an example of a terrorist attack that occurred despite our best 
efforts, but we have been able to thwart and uncover and detect and 
stop terrorist attacks--both here and abroad--due to the important 
tools and capabilities our government has. Like the Presiding Officer, 
I serve on the Senate Select Committee on Intelligence. I have sat 
through countless hours of briefings, I have asked the hard questions 
about our intelligence programs, and I have challenged those who have 
come before us.
  I wish to explain how the current program works at NSA because I 
believe there is so much misinformation about this important program. 
One of the most egregious misinformation points that have been made is 
that the NSA is listening to the content of calls made by American 
citizens to other American citizens. That is simply not true.
  Let me tell you how this program works. First, it starts with a call, 
a phone number from a foreign terrorist or a foreign terrorist 
organization. When we get a foreign terrorist's--who is based 
overseas--telephone number, the NSA is allowed to query a database to 
see if that foreign-based terrorist is calling someone in our country. 
Why is that important? Well, we know ISIS and other terrorist groups 
have been recruiting Americans and trying to train them to attack our 
country. That is why it is important.
  Only 34 highly trained, vetted Federal employees are allowed to query 
that database, and even then they are allowed to do so only if a 
Federal judge finds that a standard has been reached to allow that 
query to be made. Even if that query is approved by that Federal judge, 
the analyst can only see the phone numbers called by the terrorist, the 
date, the time, and the duration of the call.
  If there is a match, then the case is turned over to the FBI for 
further investigation. The FBI must get a court order to wiretap the 
phone of the American who is talking to that foreign terrorist.
  Last month, during a Senate Appropriations Committee hearing, I asked 
the Attorney General whether there have ever been any privacy 
violations regarding that telephone data. She replied no.
  I am truly perplexed that anyone would argue that telephone data are 
better protected in the hands of 1,400 telecom companies and 160 
wireless carriers than in a secure NSA database that only 34 carefully 
vetted and trained employees are allowed to query under the supervision 
of a Federal judge.
  Under the USA FREEDOM Act--the House bill--when we get the telephone 
number of an overseas terrorist, we potentially are going to have to go 
to each one of those 1,400 telecom companies, 160 wireless carriers, 
which potentially will involve thousands of people. The privacy 
implications are far greater if we have the telecoms control the data, 
far greater.
  Moreover, we know private sector data is far more susceptible to 
hackers, to criminals. Look at all the breaches of sensitive data that 
have occurred during the past year alone. Plus, I simply don't think 
the system will work without a data-retention requirement now that most 
carriers have flat-rate telephone plans that don't require detailed 
call data records. The telecom companies have made very clear they will 
oppose any bill with a data-retention requirement, and there will be a 
race to the bottom to market the data in a way that says to people: 
Sign up with us and your data will be safe from the government.
  That kind of demagoguery--even though the commerce committee has done 
an excellent study that shows the data broker companies sell our 
personal data, including our names, our phone numbers, our addresses to 
the highest bidder for telemarketing and other purposes, and some of 
that data ends up in the hands of con artists.
  So I don't see how vesting the authority in the telecom 
communications companies increases the privacy of our data, safeguards 
it. I think just the opposite is the case. It is going to be less 
secure because it is going to be more exposed to hackers and criminals 
who will attempt to do data breaches and have successfully done so. It 
is going to be less secure because instead of 34 people having access 
to just the phone numbers and call duration data, we are going to have 
potentially thousands of people who are going to be asked to query 
their database. The system is going to be less effective because there 
is absolutely no guarantee this data will be retained by the telecom 
companies and the wireless carriers.
  Finally, I am persuaded by the cautions given to us, by the direct 
warnings of former Director of the FBI Robert Mueller and the former 
Deputy Director of the CIA Mike Morell, who tell us that had this 
program been in place prior to 9/11, it is likely that terrorist plot 
would have been uncovered and thwarted.
  The fact is the House bill substantially weakens a vital tool in our 
counterterrorism efforts at a time when the terrorist threat has never 
been higher. The current program has never been abused. The government 
cannot listen to your phone calls or read your emails unless there is a 
court order--because you are directly communicating with an overseas 
terrorist--and then it goes to the FBI for investigation.
  It is a false choice that we have to choose between our civil 
liberties and keeping our country safe. There are actions we can and 
should take to strengthen the privacy protections in the NSA program. 
Several were included in the bipartisan bill reported by the 
Intelligence Committee last year. Unfortunately, the USA FREEDOM Act 
provides a false sense of privacy at the expense of our national 
security.
  For these reasons, while I will support the amendments today to try 
to make modest improvements to the House bill, I simply cannot support 
the bill on final passage.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, I ask unanimous consent to speak for an 
additional 7 minutes, to be divided between Senator Leahy and myself.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I thank the Senator from Utah for his 
courtesy.
  The fact is the USA FREEDOM Act that was passed overwhelmingly in the 
House of Representatives--that has strong bipartisan support here--is 
supported by the Director of National Intelligence. It is also 
supported by our Attorney General. It is supported by our intelligence 
community. And it is a step forward because, ultimately, the 
legislation protects the privacy of individuals.
  I agree with the Senator from Maine that we have strong restrictions 
at the NSA on the information. However, they were not strong enough, of 
course, to stop Edward Snowden from walking off with all the 
information that was there.
  We had six public hearings on these issues in the Senate Judiciary 
Committee last Congress. The original USA FREEDOM Act was introduced by 
Senator Lee and me and Congressman Jim Sensenbrenner in the other body.
  We all knew section 215, the roving wiretap authority, and ``lone 
wolf'' provision, would expire June 1, 2015. That is why we started 
working to change it. We are also well aware of the Second Circuit 
Court of Appeals decision that made part of the program illegal.
  I think what we have in the USA FREEDOM Act is a carefully crafted 
bill by both Republicans and Democrats in the House and the Senate. 
That is why it passed 338 to 88 in the House. If we start amending it, 
we don't know how much longer it is going to take and we end up with no 
protections. I think that is not a choice we want to make.
  On Sunday night, with only a few hours before the sunset of section 
215 and the other two expiring FISA authorities, Republican leadership 
in the Senate finally agreed to begin debate on the USA FREEDOM Act.
  For nearly 2 years, I have been working on a bipartisan basis with 
members in both the Senate and the House to address these matters. As 
chairman of the Senate Judiciary Committee last Congress, I convened 
six public hearings to examine the NSA's bulk collection program and 
consider reforms to

[[Page S3423]]

section 215 and other surveillance authorities.
  In October 2013, I introduced the original USA FREEDOM Act with 
Congressman Jim Sensenbrenner, Senator Lee, and others. We introduced 
an updated version of the USA FREEDOM Act in 2014 and pushed for the 
Senate to pass that bill last November, months before Sunday's 
expiration date.
  The American people were demanding meaningful reforms, but the 
intelligence community also needed operational certainty.
  We all knew that section 215, the roving wiretap authority, and the 
lone wolf provision would expire on June 1. That is why I started 
working months ago with Members of Congress from both parties and both 
Chambers to forge a compromise that protects both Americans' privacy 
and our national security.
  We were able to reach agreement on a bill that certainly does not go 
as far as I would like, but that definitively ends the NSA's bulk 
collection of phone records, improves transparency and accountability, 
and includes other important reforms. Our bill--the USA FREEDOM Act of 
2015--is a carefully crafted bill that has now earned the support of 
the intelligence community, privacy and civil liberties groups, 
librarians, the tech industry, and a bipartisan super-majority of the 
Republican-led House of Representatives. Our bill represents 
significant progress toward real surveillance reform.
  Unfortunately, the Republican leadership in the Senate has tried to 
block this progress at every turn. They blocked the Senate from 
debating the USA FREEDOM Act last November. They again blocked the 
Senate from debating the bill 2 weeks ago, despite knowing full well 
that failure to swiftly consider the House-passed bill would lead to 
expiration of these critical surveillance authorities. This 
brinksmanship is not a responsible way to govern.
  The expiration of the PATRIOT Act provisions on Sunday night was 
entirely avoidable, and the unfortunate consequence of a manufactured 
crisis. The Senate must now act responsibly and swiftly. It is time to 
pass the USA FREEDOM Act, which would restore the expired provisions 
and add much needed improvements and reforms.
  I hope that we will invoke cloture and then quickly dispense with any 
germane amendments so that we can move to passage of the bill. The 
House passed the USA FREEDOM Act almost 3 weeks ago by an overwhelming 
338 to 88 vote.
  Senator Lee and I sought an open amendment process in the Senate, but 
we were blocked. Now, we simply do not have any time to spare. The 
Senate must pass this bill without any amendments so that the President 
can sign it into law immediately and restore these expired provisions 
today.
  A vote for any amendment is a vote to prolong the expiration of the 
surveillance authorities that ended on Sunday. If the Senate changes 
the underlying bill in any way, it must go back to the House for its 
consideration, and there are no guarantees that it will pass the new 
bill.
  In fact, Chairman Goodlatte of the House Judiciary Committee, Ranking 
Member Conyers, Congressman Sensenbrenner, and Congressman Nadler 
warned that ``[t]he House is not likely to accept the changes proposed 
by Senator McConnell. Section 215 has already expired. These amendments 
will likely make that sunset permanent.''
  Let us have no more unnecessary delay or political brinksmanship. It 
is time to do our jobs for the American people--to protect their 
privacy and maintain our national security. Now is not the time to seek 
unnecessary changes to this bill. If Senators believe that the Senate 
should consider some of these changes, we can consider them after we 
pass the USA FREEDOM Act.
  I urge Senators to vote for cloture because we need to move forward. 
We cannot afford to waste any more time. The USA FREEDOM Act includes 
important reforms, and we need to give the intelligence community the 
tools they need to keep us safe. That means we must pass the USA 
FREEDOM Act without change and without any more unnecessary delay.
  Mr. President, I yield to the Senator from Utah.
  Mr. LEE. Mr. President, I first want to thank my friend and 
colleague, the senior Senator from Vermont, for his tireless work on 
this issue. Senator Leahy and I, along with Senator Heinrich and so 
many others who are participating in this process, have worked together 
to develop a legislative strategy that is both bicameral and 
bipartisan. This legislation we are about to vote on today was passed 
with an overwhelming supermajority in the House of Representatives--338 
votes to 88 votes. This is a testament to the fact that in so many 
instances there is more that unites us than divides us in today's 
political environment. This is an example of the type of win-win 
situation we can develop.
  This bill protects America's national security, and it does so in a 
way that is respectful of the privacy interests and both the letter and 
the spirit of the Fourth Amendment.
  The American people understand intuitively that it is none of the 
government's business whom they are calling, when they are calling 
them, who calls them, and how long their calls last. The American 
people intuitively understand what graduate researchers have confirmed, 
which is that this type of calling data--even just the data itself, not 
anything having to do with recorded conversations, just the data--
reveals a lot about an individual, about his or her political 
preferences, religious views, marital status, the number of children 
the person may have, and all kinds of interests that are none of the 
government's business.
  Moreover, the way this data is collected is inconsistent with the way 
our government is supposed to operate. Rather than going out and 
demonstrating some type of connection between the data set requested 
and a particular investigation, under the current system the government 
simply issues orders saying: Send us all of your data. Send us all your 
data on all calls made by all of your customers. We want all of it. If 
that means 300 million phone numbers, we want all of that regardless of 
its connection to any suspected terrorist operation.
  That is wrong. Our bill would change that, and it would change it 
quite simply by requiring the government to request information 
connected to a particular phone number--a phone number that is itself 
suspected of being involved in some type of terrorist activity.
  This bill represents a good compromise. This bill represents reason. 
This bill would protect America's national security while also 
protecting privacy. This bill, in so doing, recognizes that our privacy 
is not and ought not ever be deemed to be in conflict with our 
security. Our privacy is, in fact, part of our security.
  We are, unfortunately, considering this bill with too little time 
left. In effect, we are considering this bill after the PATRIOT Act 
provisions at issue have expired. This is unfortunate. It was 
unnecessary, and it represents a longstanding bipartisan problem within 
the Senate--a problem pursuant to which we establish cliffs. We 
establish these artificially designed deadlines.
  We have known about this particular deadline for 4 years. For 4 
years, we knew these provisions were going to expire. We should have 
taken up these provisions far in advance of now. Many of us tried. We 
did so unsuccessfully. Senator Leahy and I and others have been working 
on this legislation for years. We have been ready, willing, eager, and 
anxious to do so, and we haven't been able to do so until very 
recently. Now, because of the fact that these provisions have expired, 
it is incumbent upon us to move these things forward in all deliberate 
speed.
  Whatever the outcome of this vote and of those votes which will 
follow later today, the American people deserve better than this. Vital 
national security programs that touch on our fundamental civil 
liberties deserve a full, open, honest, and unrushed debate. This 
should not be subject to cynical, government-by-cliff brinksman-
ship. If Members of Congress--particularly Republican Members of 
Congress--ever want to improve their standing among the American 
people, then we must abandon this habit of political gamesmanship.
  Finally, it is time for us to pass this bill--this bill which passed 
overwhelmingly in the House of Representatives, this bill which 
carefully balances important interests the American people care deeply 
about.

[[Page S3424]]

  I urge my colleagues to support this legislation.
  Mr. President, this week the Senate will consider the USA FREEDOM Act 
of 2015, H.R. 2048. I am proud to have introduced the Senate companion 
to this bill, S. 1123, along with Senator Patrick Leahy, ranking member 
of the Senate Judiciary Committee. We have worked closely with our 
partners in the House of Representatives, House Judiciary Committee 
Chairman Bob Goodlatte, Ranking Member John Conyers, and Congressmen 
Jim Sensenbrenner and Jerrold Nadler.
  Since revelations in June 2013 that the National Security Agency was 
secretly and indiscriminately collecting Americans' telephone records, 
Senator Leahy and I have worked together on legislation to end this 
mass surveillance program and to enact greater transparency and 
oversight over the government's intelligence gathering operations. The 
USA FREEDOM Act of 2015 is the result of that 2-year collaboration, and 
it contains strong reforms. Most importantly, it would definitively end 
the NSA's bulk collection of Americans' telephone metadata and ensure 
that the Foreign Intelligence Surveillance Act pen register statute and 
the national security letter statutes cannot be used to justify bulk 
collection.
  On May 13, 2015, the House passed the USA FREEDOM Act by an 
overwhelming, bipartisan 338-to-88 vote. More than 80 percent of House 
Republicans and 75 percent of House Democrats voted for the bill, 
including the chairmen and ranking members of the House Judiciary and 
Intelligence Committees, as well as the leadership of both parties.
  The resounding vote in the House is a direct result of the 
commonsense and meaningful reforms contained in the bill. It is also a 
testament to the will of the American people, who have been unequivocal 
in their demand for reform and their demand that the NSA stop the 
indiscriminate collection of their private records.
  As our colleagues in the Senate consider the USA FREEDOM Act of 2015, 
Senator Leahy and I want to detail the extensive legislative process 
undertaken to develop this bill and provide additional clarity on the 
bill's provisions.
  Senator Leahy, I know that you have a long history of pushing for 
meaningful oversight and transparency of our government's intelligence 
gathering operations.
  Mr. LEAHY. I thank the Senator from Utah for his advocacy on behalf 
of Americans' privacy rights and for his dedicated efforts to end the 
NSA's illegal program.
  In June 2013, Americans learned for the first time that section 215 
of the USA PATRIOT Act has for years been secretly interpreted to 
authorize the collection of Americans' phone records on an 
unprecedented scale. And they learned that the NSA has engaged in 
repeated, substantial legal violations in its implementation of section 
215 and other surveillance authorities.
  Since that time, Congress and the American public have been engaged 
in an important debate about the breadth of government surveillance 
powers and the legal rationale used to authorize the collection of 
Americans' data. Under my chairmanship last Congress, the Senate 
Judiciary Committee held six open and public hearings that sharpened 
the committee's thinking and furthered the public dialogue on these 
important issues. Senator Lee, Congressman Jim Sensenbrenner, 
Congressman John Conyers, and I introduced bicameral, bipartisan 
legislation, the USA FREEDOM Act of 2013, S. 1599/H.R. 3361, on October 
29, 2013, to end bulk collection and reform our surveillance laws. The 
President announced his support for ending the bulk collection of 
Americans' phone records in March 2014. The House of Representatives 
passed a new version of the USA FREEDOM Act in May 2014, and after 
lengthy discussions with the executive branch, the technology industry, 
privacy advocates, and other stakeholders, Senator Lee and I introduced 
the USA FREEDOM Act of 2014, S. 2685, on July 29, 2014. On November 18, 
2014, the full Senate failed to invoke cloture on the motion to proceed 
to the USA FREEDOM Act of 2014, by a vote of 58 to 42.
  Despite falling two votes shy last Congress, Senator Lee and I knew 
that the May 31, 2015, expiration date was approaching, and we 
continued to work on a bill to reform these authorities. Senator Lee, 
can you explain the process we have undertaken this year?
  Mr. LEE. Since November 2014, Senator Leahy and I have been engaged 
in conversations with House Judiciary Committee Chairman Goodlatte, 
Ranking Member Conyers, and Congressmen Sensenbrenner and Nadler to 
develop a new version of the USA FREEDOM Act. After extensive 
negotiations with the administration, intelligence community officials, 
privacy and civil liberties groups, the technology industry, and other 
stakeholders, we introduced the USA FREEDOM Act of 2015, S. 1123/H.R. 
2048, on April 28, 2015.
  Of course, the USA FREEDOM Act of 2015 was not introduced in a 
vacuum. Nearly 2 years ago, on June 5, 2013, the Guardian newspaper 
published an article and posted a classified FISA Court order revealing 
that the U.S. Government had been engaging in the bulk collection of 
Americans' telephone metadata. One day later, on June 6, 2013, the 
Washington Post published an article and posted further classified 
information about a separate government surveillance program called 
PRISM involving the collection of the contents of Internet 
communications. The administration subsequently acknowledged that the 
NSA's bulk collection of telephone metadata was being conducted 
pursuant to section 215 of the USA PATRIOT Act. The NSA's PRISM program 
to collect the contents of Internet communications of certain overseas 
targets was being conducted pursuant to section 702 of FISA, which was 
enacted as part of the FISA Amendments Act.
  Once these programs were revealed, then-Chairman Leahy convened a 
number of hearings so that the American people could better understand 
what the NSA was doing.
  Senator Leahy, can you remind us of the Judiciary Committee's 
activities in the 113th Congress?
  Mr. LEAHY. As I mentioned, during the last Congress, the Senate 
Judiciary Committee held six open, public hearings to examine the legal 
basis, effectiveness, and impact of these programs on Americans' 
privacy rights and civil liberties. We heard testimony from a wide 
range of government officials, legal scholars, technologists, and 
outside experts as the Committee sought to understand and evaluate the 
numerous issues raised by these activities.
  On July 31, 2013, I chaired the first full Judiciary Committee 
hearing to examine government surveillance programs with administration 
officials and outside experts. At the hearing, the NSA Deputy Director 
confirmed that the NSA's bulk telephony program did not help to thwart 
dozens of terrorist plots, as some administration officials defending 
the program had been contending. He confirmed that section 215 was only 
uniquely valuable in thwarting one terrorist ``plot''--the case of 
Basaaly Moalin, a Somali immigrant who was convicted of material 
support for sending $8,500 to al-Shabaab in Somalia.
  As a result of continued public debate about the government's 
surveillance activities, on August 9, 2013, President Obama announced 
that he was ordering the Director of National Intelligence, DNI, to 
establish a group of outside experts to review the government's 
intelligence and communications technologies and provide 
recommendations on possible reforms to surveillance authorities. He 
also announced the public release of additional documents, including a 
Department of Justice white paper outlining the legal justification for 
the section 215 bulk collection program.
  Over the course of the following months, the DNI declassified and 
released a host of documents related to activities conducted under 
section 215 of the USA PATRIOT Act and section 702 of FISA. The 
released documents detailed serious incidents of noncompliance and 
violations of law in implementing both of these programs. For example, 
the documents revealed that for several years, the NSA was unlawfully 
collecting thousands of wholly domestic emails and other electronic 
communications as part of its section 702 collection. In addition, FISA 
Court orders relating to the section 215 program revealed significant 
compliance problems and were highly critical of the NSA's oversight and 
operation of the program.

[[Page S3425]]

  On October 2, 2013, I chaired a second full Judiciary Committee 
hearing on government surveillance authorities. NSA Director Alexander 
revealed for the first time that the NSA had previously conducted a 
pilot program to test its capability of handling location data as part 
of the section 215 phone records program, although he emphasized that 
it was only a test. The second panel of witnesses at the hearing 
testified about the government's legal justification for the collection 
of telephone records under section 215. A technologist and computer 
scientist provided testimony to illustrate the power of metadata and 
the blurring distinction between content and metadata in the digital 
age.
  Shortly after that hearing, on October 29, 2013, I joined with 
Senator Lee, Congressman Sensenbrenner, and Congressman Conyers to 
introduce the bipartisan, bicameral USA FREEDOM Act of 2013 to 
comprehensively reform a range of surveillance authorities. This 
legislation served as the basis for many of the reforms Congress is now 
debating.
  On November 13, 2013, Senator Franken chaired a Judiciary Committee 
subcommittee hearing on legislation that he had introduced, the 
Surveillance Transparency Act of 2013, components of which were 
included in the USA FREEDOM Act. Government witnesses testified about 
executive branch efforts to promote greater transparency of 
surveillance activities. In addition, several outside witnesses, 
including representatives from the U.S. technology industry, spoke 
about the economic harm and damage to American technology companies as 
a result of revelations of government surveillance activities. These 
witnesses testified that American businesses stand to lose billions of 
dollars in the coming years as a result of revelations about U.S. 
surveillance activities.
  On November 18, 2013, the DNI declassified and released a host of 
documents related to a previously classified program that collected 
bulk Internet metadata. The documents included a FISA Court opinion 
authorizing the bulk collection of Internet metadata under the FISA pen 
register and trap and trace device authority. As with the section 215 
telephone metadata program, the declassified documents revealed that 
the bulk Internet metadata collection program also encountered major 
compliance problems during its operation. In 2011, the program was 
ended by the government because it was not meeting operational 
expectations.
  On December 9, 2013, eight leading technology companies--AOL, Apple, 
Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo!--wrote an 
open letter to President Obama and Congress laying out five 
surveillance reform proposals. The companies called for a prohibition 
on the bulk collection of Internet data and argued that governments 
should limit surveillance to specific, known users for lawful purposes. 
The companies also urged stronger checks and balances, including an 
adversarial process at the FISA Court.
  On December 11, 2013, the Judiciary Committee held its fourth hearing 
on these issues. At the hearing, government witnesses discussed the 
possibility of placing a privacy advocate at the FISA Court, the 
recently declassified documents about the bulk collection of Internet 
metadata, and the scope of collection that is permitted under 
traditional section 215 orders. We learned that the problems with the 
Internet metadata program were so severe that the FISA Court suspended 
the program entirely for a period of time before approving its renewal. 
But then, in 2011, the government ended this Internet metadata program 
because, as Director Clapper explained, it was no longer meeting 
``operational expectations.'' However, senior government lawyers 
testified that under the statute, there was no legal impediment to 
restarting this bulk Internet data collection program. If the executive 
branch--or a future administration--wanted to do so, it would simply 
apply for an order from the FISA Court.
  On December 18, 2013, the President's Review Group on Intelligence 
and Communications Technology publicly released its final report, which 
included 46 recommendations and findings to reform government 
surveillance activities. The review group members included Richard 
Clarke, former counterterrorism adviser to Presidents George H.W. Bush, 
Bill Clinton, and George W. Bush; Michael Morell, former Acting 
Director of the CIA; Geoffrey Stone, professor at the University of 
Chicago Law School; Cass Sunstein, Harvard Law School professor and 
former senior OMB official in the Obama administration; and Peter 
Swire, a professor at the Georgia Institute of Technology and former 
adviser to Presidents Obama and Clinton. They concluded that the 
section 215 phone records program had not been essential to national 
security, saying: ``The information contributed to terrorist 
investigations by the use of section 215 telephony meta-data was not 
essential to preventing attacks and could readily have been obtained in 
a timely manner using conventional section 215 orders.'' The review 
group further stated that ``Section 215 has generated relevant 
information in only a small number of cases, and there has been no 
instance in which NSA could say with confidence that the outcome would 
have been different without the section 215 telephony meta-data 
program.''
  This sort of massive surveillance presents significant privacy 
implications in the digital age, and the review group's report provided 
valuable insights. The report explained that keeping a record of every 
phone call an individual has made over the course of several years 
``can reveal an enormous amount about that individual's private life.'' 
The report further explained that in the 21st century, revealing 
private information to third party services ``does not reflect a lack 
of concern for the privacy of the information, but a necessary 
accommodation to the realities of modern life.'' And the report 
questioned whether we can continue to draw a rational line between 
communications metadata and content. This is a critically important 
question given that many of our surveillance laws depend upon the 
distinction between the two.
  The review group also addressed the national security letter, NSL, 
statutes. Using NSLs, the FBI can obtain detailed information about 
individuals' communications records, financial transactions, and credit 
reports without judicial approval. Recipients of NSLs are subject to 
permanent gag orders. The review group report made a series of 
important recommendations to change the way national security letters 
operate. I have been fighting to impose additional safeguards on this 
controversial authority for years--to limit their use, to ensure that 
NSL gag orders comply with the First Amendment, and to provide 
recipients of NSLs with a meaningful opportunity for judicial review.
  Following release of the review group's report, the Judiciary 
Committee then held its fifth hearing on the NSA's programs and called 
the members of the review group to testify. On January 14, 2014, the 
members of the review group testified before the Senate Judiciary 
Committee and explained that in light of changing technology and the 
creation of more and more data, it recommended transitioning to a 
system where the government does not hold massive databases of 
Americans' metadata. Rather, metadata could be held by providers or a 
third party, and could be searched by the government only with advance 
judicial approval. The five members of the panel made clear that while 
we must always consider ongoing threats to national security, 
policymakers should consider all of the risks associated with 
intelligence activities: the risk to individual privacy, to free 
expression and freedom of association, to an open and decentralized 
Internet, to America's relationships with other nations, to trade and 
commerce, and to maintaining the public trust.
  Following the review group's report, in January 2014, President Obama 
took an important step to restore American's privacy and civil 
liberties by embracing the growing consensus that the section 215 phone 
records program should not continue in its current form. During a 
speech at the Department of Justice, the President announced that he 
had directed the intelligence community to develop alternatives to the 
program and asked the Justice Department to seek advance judicial 
approval from the FISA Court to query the section 215 phone call 
database. Additionally, he ordered the

[[Page S3426]]

government to limit searches of the section 215 database to two 
``hops,'' instead of three. He also recommended reforms to the secrecy 
surrounding national security letters.
  A January 23, 2014, report by the Privacy and Civil Liberties 
Oversight Board, PCLOB, added to the growing chorus calling for an end 
to the government's dragnet collection of Americans' phone records. On 
February 12, 2014, the Judiciary Committee held its sixth public 
hearing, this time with the members of the PCLOB to explain the 
conclusions in their report. As with the President's review group, the 
PCLOB report likewise determined that the section 215 program has not 
been effective, saying: ``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. 
Moreover, we are aware of no instance in which the program directly 
contributed to the discovery of a previously unknown terrorist plot or 
the disruption of a terrorist attack.''
  The PCLOB report also provided the public with a detailed 
constitutional and statutory analysis of this program and concluded 
that the program ``lacks a viable legal foundation under Section 215'' 
and ``implicates constitutional concerns under the First and Fourth 
Amendments.'' The PCLOB report further revealed that although the FISA 
Court first authorized this program in 2006, it did not issue an 
opinion setting forth a full legal and constitutional analysis of the 
program until 2013.
  In March 2014, after consulting with the intelligence community, 
President Obama announced that his administration would work with 
Congress to pass legislation to end the NSA's section 215 bulk phone 
records collection program and to transition to a new program in which 
the data is not held by the government. Ending bulk collection is a key 
element of what I, Senator Lee, and others have included in the various 
iterations of the USA FREEDOM Act.
  After the President's announcement, the House of Representatives took 
action. Senator Lee, would you like to expand on what transpired in the 
House?
  Mr. LEE. On May 5, 2014, House Judiciary Committee Chairman Goodlatte 
announced that he had agreed with Representatives Sensenbrenner and 
Conyers on a new version of the USA FREEDOM Act. On May 7, 2014, the 
House Judiciary Committee voted unanimously to report this revised USA 
FREEDOM Act. The next day, the House Permanent Select Committee on 
Intelligence convened a markup to consider the version of the bill 
reported by the House Judiciary Committee and voted unanimously to 
report the bill to the full House.
  Following action by the House Judiciary and Intelligence Committees, 
further changes to the text of the reported bill were considered and a 
substitute amendment to the USA FREEDOM Act was unveiled on May 20, 
2014, when the House Rules Committee adopted a rule for floor 
consideration. Following the release of the substitute amendment, some 
concerns were raised that the substitute amendment did not effectively 
prohibit bulk collection, even though that was clearly its intent. On 
May 22, 2014, the House of Representatives passed the amended version 
of the USA FREEDOM Act by a vote of 303 to 121. Many of those who voted 
no on the bill did so because they were concerned that its reforms did 
not go far enough.
  After the House passed its version of the USA FREEDOM Act, Senator 
Leahy and I worked hard to build on that legislation.
  Senator Leahy, can you talk about what led to the USA FREEDOM Act of 
2014, S. 2685?
  Mr. LEAHY. Immediately following passage of the House version in May 
2014, Senator Lee and I began working to address concerns that the text 
of the House bill, although clearly intended to end bulk collection, 
did not do so effectively. We spent several months in discussions with 
the intelligence community and a wide range of stakeholders, including 
other Senators, privacy and civil liberties groups, and the U.S. 
technology industry, to build on the framework established by the 
House-passed bill.
  Those negotiations led to the introduction of the USA FREEDOM Act of 
2014, S. 2685, on July 29, 2014. More than 50 organizations, interest 
groups, trade associations, and technology companies from across the 
political spectrum publicly endorsed the bill. On September 2, 2014, 
the Attorney General and DNI wrote a letter in support of the USA 
FREEDOM Act of 2014. The letter noted that the bill preserved the 
intelligence community's capabilities while also enhancing privacy and 
civil liberties and increasing transparency. Likewise, members of the 
President's review group wrote a letter to myself and Senator Grassley, 
explaining that the USA FREEDOM Act of 2014 was consistent with the 
recommendations contained in their December 2013 report.
  On November 12, 2014, Senator Reid filed cloture on the motion to 
proceed to the USA FREEDOM Act of 2014. A few days later, on November 
17, 2014, the Obama administration released a Statement of 
Administration Policy on the USA FREEDOM Act of 2014 strongly 
supporting passage.
  Despite the wide-ranging support for these commonsense reforms, on 
November 18, 2014, the full Senate failed to invoke cloture on the 
motion to proceed to the USA FREEDOM Act of 2014, by a vote of 58 to 
42. I was extremely disappointed that the Republican leadership in the 
Senate decided to use a procedural vote to block debate and amendments 
on such an important piece of legislation.
  With the start of the 114th Congress, Senator Lee and I began 
discussions with the House to develop a new version of the USA FREEDOM 
Act. We knew that the June 1, 2015, sunset of several surveillance 
authorities, including section 215 of the USA PATRIOT Act, would come 
up fast. For several months, we engaged in conversations with House 
Judiciary Committee Chairman Goodlatte, Representative Sensenbrenner, 
and House Judiciary Committee Ranking Member Conyers, as well as 
officials from the administration, intelligence community, privacy and 
civil liberties groups, the technology industry, and other stakeholders 
on a path forward. Those extensive deliberations produced another set 
of bipartisan, bicameral surveillance reforms to end the bulk 
collection of Americans' phone records and amend other surveillance 
laws.
  On April 28, 2015, Senator Lee and I introduced the USA FREEDOM Act 
of 2015, S. 1123, and Representatives Sensenbrenner, Goodlatte, 
Conyers, Nadler, and others in the House introduced the House 
companion, H.R. 2048. The Senate version of the bill was originally 
cosponsored by Senators Heller, Durbin, Cruz, Franken, Murkowski, 
Blumenthal, Daines, and Schumer. It has also received the support of 
the administration, privacy groups, and the technology industry.
  On May 11, 2015, the Attorney General and Director of National 
Intelligence wrote a letter in strong support of the USA FREEDOM Act of 
2015. The letter notes that the legislation ``is a reasonable 
compromise that preserves vital national security authorities, enhances 
privacy and civil liberties and codifies requirements for increased 
transparency.'' The Obama administration also issued a Statement of 
Administration Policy on May 12, 2015, in strong support of the USA 
FREEDOM Act of 2015.
  In early May, as the House and Senate were preparing to consider the 
USA FREEDOM Act of 2015, the Second Circuit issued a decision 
confirming what we knew all along.
  Senator Lee?
  Mr. LEE. It did. On May 7, 2015, a three-judge panel from the U.S. 
Court of Appeals for the Second Circuit unanimously concluded that the 
NSA's bulk collection program is illegal. The court held that section 
215 of the USA PATRIOT Act does not authorize bulk collection of 
Americans' private records and roundly rejected the argument that all 
of our phone records can be ``relevant'' to any particular authorized 
investigation.
  In ACLU v. Clapper, the Second Circuit provided a detailed statutory 
and legal analysis of section 215 and the bulk collection program. It 
stated that the government's ``expansive'' interpretation of 
``relevance'' in the context of Section 215 ``is unprecedented and 
unwarranted.'' The court further stated:

       The interpretation that the government asks us to adopt 
     defies any limiting principle. The same rationale that it 
     proffers for the ``relevance'' of telephone metadata cannot 
     be cabined to such data, and applies

[[Page S3427]]

     equally well to other sets of records. If the government is 
     correct, it could use Sec. 215 to collect and store in bulk 
     any other existing metadata available anywhere in the private 
     sector, including metadata associated with financial records, 
     medical records, and electronic communications (including e-
     mail and social media information) relating to all Americans.
       Such expansive development of government repositories of 
     formerly private records would be an unprecedented 
     contraction of the privacy expectations of all Americans.

  The court also rejected the government's attempt to compare the NSA's 
section 215 orders for bulk collection of telephony metadata to grand 
jury subpoenas, citing the expansive scope and breadth of the 
information requested. The court correctly noted:

       The sheer volume of information sought is staggering; while 
     search warrants and subpoenas for business records may 
     encompass large volumes of paper documents or electronic 
     data, the most expansive of such evidentiary demands are 
     dwarfed by the volume of records obtained pursuant to the 
     orders in question here. . . . The government can point to no 
     grand jury subpoena that is remotely comparable to the real-
     time data collection undertaken under this program.

  While the Second Circuit held that the NSA bulk collection program 
was illegal, it did not issue a preliminary injunction to enjoin the 
program. The Second Circuit remanded the case with instructions for the 
district court to consider whether an injunction was appropriate in 
light of the upcoming June 1, 2015, expiration of section 215 and 
ongoing efforts in Congress to enact legislation before the sunset.
  As both Senator Leahy and I have mentioned, the USA FREEDOM Act of 
2015 passed the House of Representatives less than a week later by an 
overwhelming and bipartisan vote of 338 to 88.
  In order to aid Senators' consideration of this bill, and to prevent 
misinterpretations of Congress's intent, we want to state clearly that 
we agree with the section-by-section analysis contained in House Report 
114-109, ``UNITING AND STRENGTHENING AMERICA BY FULFILLING RIGHTS AND 
ENSURING EFFECTIVE DISCIPLINE OVER MONITORING ACT OF 2015,'' to 
accompany H.R. 2048 as adopted by the House Judiciary Committee on May 
8, 2015. There are a few additional matters that Senator Leahy and I 
should take an opportunity to clarify. Senator Leahy?
  Mr. LEAHY. The core of this legislation is its prohibition on the 
bulk collection of records under section 215 of the USA PATRIOT Act, 
the FISA pen register and trap-and-trace device statute, and the 
national security letter statutes. Though there are some minor wording 
changes, these provisions are substantively identical to the version in 
the USA FREEDOM Act of 2014. For section 215 and the FISA pen register 
and trap and trace device statutes, under the bill the government must 
use a ``specific selection term'' to limit its collection and 
demonstrate reasonable grounds to believe that the records sought are 
relevant to the underlying investigation, which cannot be a threat 
assessment. These requirements are independent of each other, and both 
must be satisfied.
  The USA FREEDOM Act of 2015 is being considered with full knowledge 
of the Second Circuit's decision in ACLU v. Clapper and its 
interpretation of the term ``relevant,'' which rejects the prior 
reading of the Foreign Intelligence Surveillance Court. According to 
the Second Circuit, information that the government seeks to obtain 
must be presently relevant to the specific underlying investigation. 
The Second Circuit correctly noted:

       ``Relevance'' does not exist in the abstract; something is 
     ``relevant'' or not in relation to a particular subject. 
     Thus, an item relevant to a grand jury investigation may not 
     be relevant at trial. In keeping with this usage, Sec. 215 
     does not permit an investigative demand for any information 
     relevant to fighting the war on terror, or anything relevant 
     to whatever the government might want to know. It permits 
     demands for documents ``relevant to an authorized 
     investigation.'' The government has not attempted to identify 
     to what particular ``authorized investigation'' the bulk 
     metadata of virtually all Americans' phone calls are 
     relevant. Throughout its briefing, the government refers to 
     the records collected under the telephone metadata program as 
     relevant to ``counterterrorism investigations,'' without 
     identifying any specific investigations to which such bulk 
     collection is relevant. . . . Put another way, the government 
     effectively argues that there is only one enormous ``anti-
     terrorism'' investigation, and that any records that might 
     ever be of use in developing any aspect of that investigation 
     are relevant to the overall counterterrorism effort. The 
     government's approach essentially reads the ``authorized 
     investigation'' language out of the statute. Indeed, the 
     government's information-gathering under the telephone 
     metadata program is inconsistent with the very concept of an 
     ``investigation.''

  The USA FREEDOM Act of 2015 reauthorizes section 215, but it does so 
in light of the understanding of how the Second Circuit interprets 
``relevance.''
  Mr. LEE. I agree that the new requirement for a ``specific selection 
term'' in the USA FREEDOM Act of 2015 is separate from the requirement 
of ``relevance.'' I would like to clarify one last point. Section 104 
of the bill authorizes the FISA Court to impose additional, 
particularized minimization procedures for information obtained under 
section 501 of FISA. That section provides that the FISA Court may 
impose additional procedures related to ``the destruction of 
information within a reasonable time period.'' That provision therefore 
provides authority for the FISA Court to specify a time period within 
which the government must destroy information.
  Mr. LEAHY. I have been proud to work with Senator Lee for nearly 2 
years to develop the legislation that we have been discussing. It has 
involved many hours of hard work over many months. The result is a 
solid bill with a set of commonsense reforms that has overwhelming 
support. The Senate should pass it today.


                             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 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, John Cornyn, Ron Johnson, Dean Heller, 
           Steve Daines, Cory Gardner, Johnny Isakson, Richard 
           Burr, Tim Scott, James Lankford, Jeff Flake, Mike Lee, 
           Lisa Murkowski, John Barrasso, Thom Tillis, Chuck 
           Grassley, Richard C. Shelby.

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair now directs 
the clerk to call the roll to ascertain the presence of a quorum.
  Mr. LEAHY. Mr. President, I ask unanimous consent that we waive the 
mandatory quorum.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The question is, Is it the sense of the Senate that debate on 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?
  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 Missouri (Mr. Blunt) and the Senator from South Carolina 
(Mr. Graham).
  Mr. DURBIN. I announce that the Senator from Virginia (Mr. Warner) is 
necessarily absent.
  The PRESIDING OFFICER (Mrs. Fischer). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 83, nays 14, as follows:

                      [Rollcall Vote No. 197 Leg.]

                                YEAS--83

     Alexander
     Ayotte
     Baldwin
     Bennet
     Blumenthal
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Coats
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cruz
     Daines
     Donnelly
     Durbin
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Gillibrand
     Grassley
     Hatch
     Heinrich
     Heitkamp

[[Page S3428]]


     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kaine
     King
     Kirk
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Perdue
     Peters
     Portman
     Reed
     Reid
     Rounds
     Sasse
     Schatz
     Schumer
     Scott
     Shaheen
     Stabenow
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Vitter
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--14

     Barrasso
     Cotton
     Crapo
     Enzi
     Ernst
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Sanders
     Sessions
     Shelby
     Udall

                             NOT VOTING--3

     Blunt
     Graham
     Warner
  The PRESIDING OFFICER. On this vote, the yeas are 83, the nays are 
14.
  Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The majority whip.
  Mr. CORNYN. Madam President, the Senate will hold a series of votes 
this afternoon on the underlying bill, and I think it is important for 
all of us to understand exactly what those amendments will do.
  The underlying House bill makes some changes in the way the National 
Security Agency operates and uses what the Supreme Court of the United 
States has held is not private information--in other words, the time, 
duration, and number involved in a telephone call that is contained in 
a typical telephone bill.
  The Supreme Court of the United States has said there is no right of 
privacy in that information. As the Senate knows, what the House bill 
does is it leaves these phone records in the possession of the 
telephone company. Then, over a period of 6 months, the National 
Security Agency is supposed to come up with a means of querying those 
records in the possession of the various phone companies.
  Some, like me, have wondered why it is that we are trying to fix a 
system that is not broken, because there is absolutely no documented 
record of any abuse of this information as it is currently retained by 
the NSA. The way it is used is to help the intelligence community 
discover people who have communicated with known or suspected 
terrorists abroad in a way that will help to provide an additional 
piece of data that will hopefully help them prevent terrorist attacks 
from occurring on our home soil.
  The FBI Director has said that in the 56 field offices in the United 
States, every single one of these field offices has an open inquiry 
with regard to potential homegrown terrorist attacks.
  As I mentioned before, in Garland, TX, just a few weeks ago, two men 
traveled from Phoenix, AZ, and obtained full-body armor and automatic 
weapons and were prepared to wreak havoc and murder innocent people in 
Garland, TX, because they were exercising their First Amendment rights 
and were displaying cartoons that these two jihadists felt insulted the 
Prophet Muhammad.
  Thanks to the good police work of a Garland police officer, both of 
those people were taken out of action before they could kill anybody 
there at that site. But why in the world would we want to take away 
from our intelligence authorities the ability to detect whether 
individuals, such as these two jihadists from Phoenix who traveled to 
Garland, had been communicating with known terrorist telephone numbers 
in Syria or anywhere else in the world? These are foreign telephone 
numbers that are matched up and provide an essential link and, really, 
a tripwire for the intelligence community.
  What the amendments that we will vote on this afternoon would do is 
to slow the transition from NSA storage to the telephone company 
stewardship from the 6 months prescribed in the underlying bill. For 
those who believe that the underlying bill is the correct policy, I do 
not know why they would object to a little bit of extra time so we can 
make sure that this is going to work as intended.
  Indeed, the second amendment does relate specifically to that. It 
would require a certification by the Director of National Intelligence 
that the software is actually in place that will allow the National 
Security Agency to query the phone records in the possession of the 
telephone companies.
  Another amendment would provide that the Foreign Intelligence 
Surveillance Court, which is a group of experienced Federal judges who 
review the requests from the FBI and other law enforcement authorities, 
would be able to query these telephone records. It would establish a 
panel of experts, so to speak, to argue against the government's case 
in front of the Foreign Intelligence Surveillance Court. As somebody 
who used to be a judge for some time, this is a rather strange 
provision because what it does, essentially, is to put a defense 
attorney in the grand jury room and create an adversarial process at 
the early stages of an investigation, which may or may not lead up to 
an indictment in that case.
  The final amendment would require the phone companies to notify 
Congress if they are going to change their policy for retaining 
customer records. This is a serious concern because it could well be 
that some telephone companies will start marketing to potential 
customers that they will not retain any records, thus eliminating an 
important tool which helps keep Americans safe and has absolutely zero 
threat to civil liberties.
  There has been so much misrepresentation about what this so-called 
metadata program has done. I think that is one of the reasons we find 
ourselves here today. Many who believe the program is useful are 
reluctant to even talk about it in public because, as we know, so much 
of what is done to protect our country is classified. So rather than 
have a public debate and actually correct the misstatements of fact and 
the demagoguery that unfortunately attends this subject, many people 
are simply confused about what exactly is going on and what Congress is 
doing. But I would just point out that oversight of these programs is 
absolutely rigorous. It is executive, judicial, and legislative 
oversight. It is not a matter of trust as to whether these programs 
work the way they are supposed to; it is actually verified on a regular 
basis, universally verified.

  Also, we have to go before these Federal judges known as a FISA 
Court--a Foreign Intelligence Surveillance Court--in order to make our 
case. Unless we can make our case to these judges that there is reason 
to continue the investigation, they will shut it down.
  One of the things I think we have forgotten is that we want to treat 
intelligence gathering and prevention as we do ordinary law 
enforcement. What I mean by that is that ordinarily, in the criminal 
law context, government doesn't get involved in a case unless something 
bad has already happened. If there has been an explosion or a murder or 
a bank robbery or something like that, it is after the fact that we try 
to figure out what happened and then, if we can, to identify the 
perpetrator and to bring them to justice. That satisfies an important 
need in our society to enforce our criminal law, but that is far 
different from what our intelligence community is supposed to be doing 
because they are supposed to be detecting threats and intervening in 
those ongoing schemes and stopping them before they ultimately occur.
  That is the important lesson we learned on 9/11. Unfortunately, it 
has been so long ago now that many people have simply forgotten or they 
don't feel as though this is an imminent threat. But when Director 
Comey says they have open inquiries in all 56 FBI field offices about 
the potential threat of homegrown terrorists, I take that very 
seriously. I believe it is absolutely reckless for us to take any 
unnecessary chances.
  There are some who say this underlying bill is important because 
instead of the National Security Agency collecting these telephone 
numbers, we are going to leave the data with the telephone companies. 
But none of the people who are going to be querying these records at 
the phone companies have security clearances. One can just imagine the 
potential for abuse at the phone companies of these phone records once 
they receive some sort of request from the government.
  We know the current system as run at the National Security Agency is 
subject to rigorous oversight, as I mentioned. In addition to the 
executive, judicial, and legislative oversight, we actually have a 
private and civil liberties

[[Page S3429]]

oversight board which makes sure that we strike the right balance. 
Nobody wants to see the privacy rights of American citizens undermined, 
but we all are adult enough to know that there has to be a balance and 
that in order to provide for security and to avoid terrorist attacks 
such as occurred on 9/11, we are going to have to take some actions to 
reach the right balance, and I believe the current law does that.
  Unfortunately, we have a traitor such as Edward Snowden who 
selectively leaked certain portions of this program, and it has created 
an uproar. I think that unfortunately, as a result of his leaks and the 
ensuing political environment after that, America is at greater risk, 
and that is a terrible shame.
  So I think it is reckless to take a chance. We have been fortunate 
that there have been no terrorist attacks on our homeland since 9/11. 
Well, I take that back. Five years ago, at Fort Hood, MAJ Nidal Hasan 
killed 13 people and injured 30-something more. Of course, we know now 
that he had been in constant communication over the Internet with Anwar 
al-Awlaki, who subsequently was killed in a drone strike--even though 
he was an American citizen--overseas. He was overseas because he was 
recruiting people to Islamic extremism, including Nidal Hasan, who 
killed 13 people at Fort Hood 5 years ago.
  It is simply a fact that the Fourth Amendment of the U.S. 
Constitution involving searches and seizures doesn't apply to foreign 
terrorists; it applies to Americans. Under the procedures used under 
current law, all requests for additional information are subject to 
Federal court supervision and permission.
  So we will vote on a number of amendments this afternoon. I can tell 
my colleagues, after talking to a number of our colleagues, many of 
them have said they don't really have any disagreement over the content 
or the policy of these amendments. Actually, these amendments are 
designed to try to strengthen the underlying House bill.
  We all understand that the House is going to prevail in the basic 
structure of the underlying piece of legislation, but since when did 
the U.S. Senate outsource its decisionmaking to the other body across 
the Capitol? We have a bicameral legislature--a Senate and a House--for 
a reason. We know we make better decisions when we have consultation 
between the two branches of the legislature--not capitulation but 
consultation. The Senate should not be a rubberstamp for the House or 
vice versa.
  I have heard some of our colleagues say that if the Senate were to 
change a period or a comma or a dash in the underlying legislation, it 
would be a poison pill, that the House would reject it and we would 
have nothing to show for our efforts. But I have great faith that if 
the Senate will do its job and vote to pass these underlying amendments 
and strengthen this underlying bill, the House will take up the bill 
and vote on it and it will pass. So if my colleagues feel as though 
these amendments would actually strengthen the underlying House bill 
and represent good policy, why in the world would they vote against 
these amendments because of some fantasy that the House will simply 
reject any changes at all? Why would they essentially capitulate any of 
their prerogatives as U.S. Senators to represent their constituents in 
this body? We all know we make better decisions in consultation with 
other people.
  Certainly I think it is true that the House's bill is not holy writ. 
It is not something we have to accept in its entirety without any 
changes. I think where the policy debate should go would be to embrace 
these amendments and to say that we understand the House wants to 
change the current custody policy of these phone records and leave them 
with the phone company, but we sure need to know the new system will 
actually work. Doesn't that make sense? That is why the certification 
from the Director of National Intelligence is so important. It makes 
sense to provide a little bit more time--from 6 months to a year--in 
order to make sure this transition goes smoothly.
  I know no Member of the Senate and no Member of the House and no 
American wants to look back on our hasty treatment of this underlying 
legislation and say: If we were just a little more careful, if we had 
just taken a little bit more time, if we had just been a little more 
thoughtful, a little more deliberative, and talked about the facts as 
they are and not some misrepresentation of the facts, we could have 
actually prevented a terrorist attack on our home soil.
  Unfortunately, by increasing the risk to the American people, as I 
believe this underlying legislation will do, we may not find out about 
that until it is too late. I hope and pray that is not the case, but 
why should we take the risk to the homeland? Why should we risk anyone 
being injured or potentially killed as a result of a homegrown 
terrorist attack on our own soil because we have simply blinded 
ourselves in a significant way to the risks? Not that this is a 
panacea, not that this is some litmus test, but it is one essential 
piece of information that will help law enforcement make the case to 
not just prosecute crimes after they occur but to prevent them from 
occurring in the first place through the good and sound use of 
constitutional intelligence gathering in a way that respects the 
privacy of all Americans but lives up to our first and foremost 
responsibility, and that is to keep the American people safe.
  Madam President, I yield to the distinguished ranking member.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, nobody disputes that we all want to keep 
America safe. We all agree on that. We also want to make sure that we 
keep Americans free and that their constitutional freedoms are 
protected. None of us would think that we were making the country safer 
if we were to try to pass a law that said law enforcement or anybody 
else can walk into our homes at any time they want and go through any 
files we have, follow us anywhere they wanted just on a whim. We would 
be totally opposed to that. But some would say that in the aftermath of 
9/11, in some of the aspects of the PATRIOT Act, we did just that.
  Congressman Armey, who was the Republican leader, the majority leader 
of the House at the time--a very conservative Republican--he and I 
joined together after consultation to put into the PATRIOT Act sunset 
provisions which would require us to have the debate we are having 
right now.
  We talk about consultation. The fact is that there have been hours 
and days and weeks and months of consultation between the House and the 
Senate on the USA FREEDOM Act. We had a bill before us last year that 
was filibustered. It still got 58 votes. That was done in consultation 
with the House. The majority leader of the House has already said--the 
Republican leader--he has warned the Senate not to move ahead with 
planned changes to the House bill because it could bring real 
challenges in getting the USA FREEDOM Act passed through the House 
again.
  The fact is that we have had so much consultation. Senator Lee, I, 
Republicans and Democrats have met continuously for months--even a 
year--with House Republicans and House Democrats to get the bill that 
is before us now. That is probably why it passed by such a lopsided 
margin in the House of Representatives.
  My distinguished friend from Texas says these are minor changes. 
Well, actually, they are not. One would weaken the FISA Court amicus 
authority. We know that for years the FISA Court secretly 
misinterpreted section 215. As a result, after the program leak, that 
is the only time the FISA Court finally heard the government's 
argument. Before that, they only heard the government. Once a legal 
reason justifying this program became public, challenges were brought, 
and the Second Circuit last month ruled unanimously that the program 
was unlawful.
  Having amicus in there is not having a defense attorney in a grand 
jury room at all. Amicus on questions of law can be invited by the 
court to step in. This could be a relatively rare case, completely in 
the discretion of the court. It is hard to talk about weakening that 
further, especially when we are talking about a secret court.
  I oppose the amendment to extend the current bulk collection program 
in place for a full year. We have a 180-day transition period. And the 
Director of

[[Page S3430]]

the NSA said: ``We are aware of no technical or security reason why 
this cannot be tested and brought online within the 180-day period.'' I 
think the NSA Director is as knowledgeable about this subject as 
anybody in this Chamber, and he says we can go forward with it.

  I think all of these amendments that are talked about would simply 
delay passing an excellent piece of legislation, one that has been 
worked on by Republicans and Democrats for months and even years. Let's 
pass it today.
  We hear about stopping terrorism attacks. We all want to do that. But 
I remember some of the statements made by a former NSA Director that 
this had stopped 54 terrorist attacks. When he was pressed on that 
claim, it came out that the bulk collection program was only important 
after the fact in one case--and that was not a terrorist attack.
  We also know that 9/11 could have been avoided. The evidence was 
there. The information was there. But the dots had not been connected. 
Everybody was frantically taking information they already had--
recordings they already had after 9/11--and saying: We ought to get 
around to translating what is in these things. We know that in 
Minnesota, the FBI warned that people were taking flight lessons and 
there was no good reason. That warning was ignored. They basically were 
told: We know better.
  I remember the day or so after the attack, at FBI Headquarters, 
people were calling in with information from different field offices. 
Somebody would write it down and would hand it to somebody else who 
would rewrite it and hand it to somebody else who would put it in a 
file. They would charter planes to bring photographs around to 
different places so our offices could see them. And I said: Well, why 
don't we just email the photographs? They would say: Well, we don't 
have the ability to do that. I said: Well, my 11-year-old neighbor 
could do it for you if that would help.
  The fact of the matter is we had the information prior to our own new 
laws, and it didn't make us safer--any more safer than when we voted 
for $2 to $3 trillion to go into Iraq because, as the Vice President 
and others were saying, they were about to attack us with nuclear 
weapons, and they were implying they were involved in 9/11.
  Mr. WYDEN. Will the distinguished ranking member yield?
  Mr. LEAHY. Yes.
  Mr. WYDEN. I think the ranking member has made a number of very 
important points here.
  The fact of the matter is that we are all here because the majority 
leader wasn't able to defeat the surveillance reform. So instead, he 
has chosen to introduce amendments designed to water it down. I am 
disappointed by this. I will oppose all of these amendments, and I want 
to have a colloquy briefly with the ranking minority member.
  The ranking minority member and our colleague from Connecticut, 
Senator Blumenthal, have done very good reform work with respect to the 
FISA Court. In particular, what the distinguished Senator from Vermont 
has done, with the help of the Senator from Connecticut, is to bring 
some very important sunshine and transparency to the court. As my two 
colleagues have pointed out on the Judiciary Committee, we really meet 
on the major questions--not all of them, as the Senator from Vermont 
has just said--but what is really needed is to make sure that both 
sides get a chance to be heard, not just the government side.
  So what troubles me--and I am interested in the reaction of my 
colleague from Vermont, and I want to praise him and my colleague from 
Connecticut--is that it seems to me that what the Senate majority 
leader wants to do is basically to take us back to the days of secret 
law.
  What is important, as we get into this, and particularly with this 
amendment, is that there is a difference between secret operations and 
secret law. Operations always have to be kept secret.
  I see my friend Chairman Burr here. We serve on the Intelligence 
Committee together. The two of us feel so strongly about making sure 
secret operations are kept secret because otherwise Americans are going 
to die. We can't have secret operations splayed all hither and yon in 
the public square.
  But the law always ought to be public. As Senator Leahy has pointed 
out for some time--and I warned about it here on the floor--what we 
would see is, if you live in Connecticut or Vermont, the PATRIOT Act 
talked about collecting information relevant to investigation. Nobody 
thought that meant millions and millions of records on law-abiding 
people. That decision was made in secret. It was made without the 
reforms advocated by the Senator from Connecticut and the Senator from 
Vermont.
  So I would be interested in my colleague from Vermont's reaction to 
the majority leader's amendment to scale back your very constructive 
reforms on the FISA Court. And my sense is that what the majority 
leader's approach would do would take us back to the days of secret 
law. I think that is a mistake, and I would be curious about the 
reaction of my colleague from Vermont on this.
  Mr. LEAHY. I would say to my friend from Oregon that the American 
people want to know how the laws are being interpreted. They want to 
know what the courts are doing.
  As to secret operations, of course, you have had briefings on those. 
I have had briefings on those. I have been in places I will not name 
here. They are places overseas where I was there in the operations 
center as operations were taking place and being briefed on what they 
did, where they got the information, and what they were going to do 
next. Of course, none of that you want to be reading in the press or 
seeing in real time.
  But I also know that when we are dealing with Americans and with 
their lives and with their sense of privacy, we have to protect them. 
The USA FREEDOM Act makes very simple changes to the FISA court. The 
bill provides the FISA Court with the authority to designate 
individuals who have security clearances to be able to serve as an 
amicus or a friend of the court. It is triggered in only relatively 
rare cases involving a novel or significant issue of law, and the 
decision of appointment is left entirely up to the court. That is about 
as narrowly drawn as you can get. But I think we have to have this 
ability to know what the court is doing because we have known for years 
that the FISA Court secretly misinterpreted Section 215 to allow for 
the dragnet collection of Americans' phone records.
  I would be happy to yield to the Senator from Connecticut, who has 
worked so hard on this and is a former attorney general of his own 
State.
  My own experience in getting search warrants for phone records or 
anything else as a prosecutor--and I realize it is not of the 
complexity of what we have today, but I realize we had to follow the 
law--is that, ultimately, that protects us more than anything else. I 
do not want this administration or any other administration to have the 
ability just to go anywhere they want. I am not encouraged by those who 
say this is so carefully maintained. We were given information earlier 
that just a small number of people can have access to those records. I 
guess it is one less since Edward Snowden walked out the door with all 
of it.
  I will yield to the Senator from Connecticut if he would like to 
speak on this subject.
  The Senator from Oregon has been such a strong and passionate leader 
on this, and I know from what I hear from the people of my State and 
when I am down in his State that people want us to be safe, but they 
also want their privacy protected.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Connecticut.
  Mr. BLUMENTHAL. I thank the Chair.
  Mr. President, I am very grateful for the opportunity to follow my 
distinguished colleague from Vermont and to emphasize some of the 
points that he has just made. But first let me thank Senator Wyden for 
his leadership and his courage on this issue of foreign intelligence 
surveillance reform. He has helped to lead this effort, long before I 
was in the Senate, in favor of more transparency and accountability. 
Those are among the overarching objectives here.
  My colleague from Vermont, who shares with me a background as a 
prosecutor, rightly makes a point that warrants and other means of 
surveillance when prosecutors seek them are sought

[[Page S3431]]

ultimately from judges. I want to speak to some of the myths and 
misconceptions here that endanger this key reform.
  Our colleague from Texas, whom I greatly respect, has argued that the 
FISA Court is like a grand jury. In fact, he has said that an amicus 
should not be appointed, in effect, to intervene with a body that is 
like a grand jury. Well, the Foreign Intelligence Surveillance Court is 
not a grand jury, as my colleague from Oregon has said very well. The 
FISA Court makes law. It interprets the law in ways that are binding as 
legal precedents. Far from being like a grand jury, as a truly 
investigative tool of the court, the Foreign Intelligence Surveillance 
Court is a court. In fact, it is composed of article III judges who do 
as they do on their own district courts or appellate courts; that is, 
they interpret law and thereby, in effect, make law.
  To keep that law secret is a disservice to the American people and to 
our legal system. To have only one side represented skews and, in 
effect, impedes the operations of that court because we know that 
judges make better decisions when they hear both sides and rights are 
better protected. Even so, the FISA Court needs to hear from that 
amicus panel only when it chooses to do so, ultimately.
  It has the discretion under the statute, as it exists now, to decide 
to appoint an amicus in any particular matter. It is required to 
appoint an amicus in novel or significant cases unless--and the word 
``unless'' is in the statute--it issues a finding that the appointment 
is not appropriate. It can make that finding whenever it wishes to do 
so. So the discretion is for the FISA Court in whether to hear from an 
amicus, even under the bill that the USA FREEDOM Act is now. It can 
permit the amicus to address privacy, technology or any other area 
relevant to the matter before the court--not just constitutional 
rights. And that leads to the second misinterpretation, if I may say 
so, in the remarks made by my colleague from Texas.
  The bill does not direct an amicus to oppose intelligence activity or 
to oppose the government's view or position. In fact, it is to 
enlighten the court. In some instances it may oppose the government, 
but it is as part of that process of constructively arriving at the 
correct legal interpretation--not as a kind of knee-jerk reaction to 
oppose the government.
  Again, I stress, a novel or significant issue in the discretion of 
the court may be addressed by the amicus. What the amendment does is to 
deprive the amicus or expert panel of the access it needs to facts and 
law to be the best that it can be in interpreting, arguing, and 
protecting rights. It, in effect, bars access to past precedents of the 
court, to briefings from intelligence experts, to facts that may be 
known to the Department of Justice or intelligence agencies. That 
hampering and hobbling of the amicus in no way serves the cause of 
justice. It in no way serves the cause of intelligent intelligence 
activities--in fact, it undermines that activity.

  It undermines trust and confidence in the court. This court has 
operated in secret. It has heard arguments in secret. It has issued 
opinions in secret. It is the kind of court our Founders would have 
found an anathema to their vision of democracy and freedom. We may need 
such a court now to authorize surveillance activities that must be kept 
secret, but we need to strike a balance that protects very precious 
constitutional rights and liberties.
  After all, what does our surveillance and intelligence system protect 
if not these fundamental values and rights of privacy and liberties 
that have lasted and served us well because we respect them?
  More than a physical structure that we seek to protect through this 
system, it is those values and rights that are fundamentally paramount 
and important. So this FISA Court reform goes to the core of the 
changes--constructive changes that we seek to make. I hope my 
colleagues will defeat amendment 1451, along with all of the other 
amendments, because the practical effect of adopting amendments is it 
further delays implementation of the USA FREEDOM Act at a time when our 
country may be at risk from the expiration of the PATRIOT Act. We 
cannot afford for this country----
  Mr. WYDEN. Will my colleague yield for a question on that point?
  Mr. BLUMENTHAL. I will be happy to yield.
  Mr. WYDEN. Because I think, again, my colleague from Connecticut has 
spoken to what the stakes are here. For the last decade, intelligence 
officials have been relying on secret interpretations of their 
authorities that have been very different from the plain reading of 
public law. The public has seen the consequences of that, and they are 
angry because the American people know we can have policies that 
promote both security and liberty.
  I would just like to ask a question of my colleague with the respect 
to what the implications would be of hollowing out the good work you 
and Senator Leahy have done with respect to having more transparency 
and both sides making a case on key questions with respect to the FISA 
Court. I would like to note that the majority leader's second amendment 
delays implementation of other important reforms that you all have 
dealt with.
  For example, one question I was asked about at a townhall meeting 
just this past weekend in Tillamook, OR, where I was, is people were 
concerned about what would we do to protect our Nation when there was 
an emergency. You all, in your good work, have, in effect, said you 
would strengthen the language to make sure that when there was an 
emergency--government officials already can issue an emergency 
authorization to get the business records and you would then seek court 
approval, and you all strengthen that.
  All of you on the Judiciary Committee said: We are going to provide 
another measure of security for the American people; in other words, we 
are going to protect their liberty and we are going to strengthen their 
security. It looks to me like the combination of the majority leader's 
two amendments scaling back the reforms, the transparency reforms in 
the FISA Court, and delaying the strengthening of emergency authorities 
that can protect the American people without jeopardizing their liberty 
would really roll back the kind of reforms the American people want.
  I would be interested in my colleague's reaction to that.
  Mr. BLUMENTHAL. I am happy for that very pertinent and important 
question from my colleague from Oregon. In fact, the majority leader's 
amendments would not only scale back and roll back the protections for 
the American people in the event of exigent or urgent situations, they 
would also undermine the confidence and trust of the American people in 
this system to protect the homeland.
  Delaying these kinds of reforms undermines the goal of protecting our 
national security as well as preserving our fundamental constitutional 
rights. Delay is an enemy here. Uncertainty is an adversary. We owe it 
to the American people not only to restore their trust and confidence 
and sustain the faith of the American people in the intelligence 
agencies but also to make it more transparent, where it can be made so 
without compromising security and increasing accountability.
  That is what the FISA Court reforms do. That is why the Director of 
National Intelligence as well as the Attorney General, the Privacy and 
Civil Liberties Oversight Board, the President's Review Group, at least 
two former FISA Court judges, civil rights advocates, and 
representatives of many of the most informed and able in our 
intelligence community all support these reforms.
  The Director of National Intelligence and the Attorney General said 
in 2014, ``The appointment of an amicus in selected cases as 
appropriate need not interfere with the important aspects of the FISA 
process, including the process of ex parte consultation between the 
court and the government.''
  Ex parte communication, in effect, secret conversation or 
consultation, can continue to go forward under this bill. The amendment 
would not alter that fact. The amendment simply makes the amicus less 
effective by depriving that amicus of access to facts and law that are 
necessary to do its job. So, in my view, these amendments fundamentally 
undermine the purpose of reforms that a vast bipartisan majority of 
this body has already approved today. It is an increasingly large 
margin that has voted for these

[[Page S3432]]

reforms, recognizing what I hear from Connecticut, what my colleagues 
hear in their States; that people want to believe the Foreign 
Intelligence Surveillance Court is, in fact, operating as a court, 
hearing both sides, keeping secrets but at the same time increasing 
public access to facts and laws that are important to them without 
compromising our national security.
  I hope my colleagues will vote to reject these amendments. As the 
Senator from Oregon has said, adopting them will simply serve to delay 
reforms that are necessary.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, there are always two sides of every picture, 
two sides of every story. I have tremendous affection for Ranking 
Member Leahy. We are friends. We look at this issue differently. I have 
deep respect for Senator Blumenthal, Senator Wyden.
  The fact is I look at history a little bit differently and I look at 
the future a little bit differently because I think what the American 
people want to believe is that America is doing everything possible to 
keep them safe. I think, at the end of the day, that is the single most 
important issue: Are we doing everything we can to keep America safe?
  Now, Senator Wyden opposes section 215. He talked about changes. He 
is opposed to section 215. He is a member of the committee. I know 
exactly where he stands, and I respect it. The fact is that 215 is a 
very effective program. My colleagues are right. It was not a public 
program until Eric Snowden, a traitor to the United States, published a 
lot of information about what the intelligence community does. This was 
one small piece. Eric Snowden put the lives of Americans and foreigners 
at risk in what he released.
  You cannot put the genie back in the bottle, but you also cannot hide 
from the fact that this program enabled us to thwart terrorist attacks 
here and abroad. I quoted the four of them yesterday. This program 
itself was what we were able to use post the Boston Marathon bombing to 
figure out whether the Tsarnaev brothers had an international 
connection that directed that horrific event at that marathon.
  Yes, the FISA Court operates in secret. Why? It is the same reason 
the Senate sometimes clears the Galleries, shuts the doors, cuts off 
the TV, and as an institution only cleared people here--classified and 
top secret information--can make decisions. Therein describes the FISA 
Court. They always deal with classified and top secret documents. They 
are called on a minute's notice. No other court in the world responds 
like that. There is a FISA judge on the bench 24/7, 365 days a year. It 
rotates. These are the best of the best of the judicial system around 
the country, picked by the Chief Justice of the Supreme Court.
  Could it be open? Sure. But we would then expose either classified 
and top secret documents or we could not use the documents to make the 
case to the FISA Court that we have a suspected individual of terrorism 
and we need the authority to see who that person is. Well, we have 
heard a lot about the FISA Court. A lot of it is true.
  The people who serve on the bench are heroes because they take the 
toughest cases America is presented with, and they rule on them in the 
most judicial way they possibly can, demanding, over 25 percent of the 
time, that an application be resubmitted after changes because they did 
not think it had met the threshold.
  Much has been focused on the changes to the amicus language or the 
``friend of the court.'' This is not a normal court. When the choice is 
to go to the FISA Court, it is because we are concerned. We are 
concerned about an imminent threat.
  Let me explain, once again, for my colleagues and for the American 
people what the section 215 program is. It is a program where at the 
NSA we collect raw telephone numbers from telephone companies--numbers, 
not names.
  We have a number that does not have a person's name with it. They are 
deidentified. We collect a number, the date the call was made, and the 
duration of the call. For us to trigger any search or we call it query 
of that database, we have to have a foreign telephone number that we 
know is a telephone number used by a terrorist.
  Those are all the components of the section 215 program. That is it. 
We can have a database, but without a foreign terrorist telephone 
number, we cannot search the database. If we have a foreign terrorist 
telephone number and no database, which is where we are moving to--I 
concede this legislation is going to move, and we are going to 
transition over to hundreds of telephone companies.
  Now, rather than have a number of people controlled and supervised 
within the NSA to carry out these queries, we are going to have 
telephone company employees carry out a query with a known foreign 
terrorist's telephone number against all of the numbers in their 
database. Again, hopefully, they will not tie a person's name to it. We 
do not even get a person's name at the NSA.
  The only people who should be worried are Americans who have actually 
had a communication with a known terrorist abroad. Now, I think when 
the American people hear me talk about this, up to this point they are 
saying: That is a good thing. We want to know if somebody here has 
talked to a terrorist because we want to be kept safe.
  Well, not only are we shifting the database out of the NSA over to 
the telephone companies, which means our response time is going to be 
delayed--let me remind everybody that whether we search the meta 
database at NSA or whether we search the database at the telephone 
company, we first have to go to the FISA Court and get a court order 
that says: You have the authority to do this based upon what you have 
presented the court.
  Now we have to go to the telephone companies, and in a timeframe that 
is conducive to them, they are going to search their database for a 
known terrorist's cell phone number, and now we are relying on hundreds 
of companies to search their database in a timely fashion and get back 
to us because we are trying to be in front of a threat versus behind a 
threat. In front of a threat, it is called intelligence; behind a 
threat, it is called an investigation.

  When we thwarted the New York City subway bombing, we were in front 
of the threat. That was intelligence. When we reacted to the Boston 
Marathon, that was an investigation led by the FBI, not the NSA.
  So when you inject this new requirement for a friend of the court--
and I would disagree with my colleagues. This is not a voluntary thing 
for the FISA Court. It is something that is available to the FISA Court 
today if they choose to have somebody come in to counsel them on 
something. This is mandatory. In the legislation, it says ``shall.'' 
The court shall set up a panel. The court shall choose a friend of the 
court. A friend of the court is not there to facilitate a timely 
processing of information.
  Let me remind everybody that we are dealing with the safety of the 
American people. They always stress this at the end of the 
conversation: We want the confidence and trust to be rebuilt that we 
are protecting our homeland. If you are moving a database, you are 
making it slower. Now you are setting up a mechanism inside to slow it 
down even more.
  What we are doing is shifting from intelligence gathering to 
investigations. Nobody knows how long it is going to take from the time 
we present the FISA Court with a foreign terrorist's telephone number 
before we actually complete a search process within this new database.
  I happen to be the one behind a 12-month transition versus a 6-month 
transition, and it was all stimulated off of exactly the same person 
whom Senator Blumenthal or Senator Wyden quoted. They said the Director 
of the NSA said: We think we can do this in 6 months.
  Well, I am telling you, if I am the general public in America and I 
am concerned about my safety and the people who are supposed to be 
protecting me say ``I think I can do this in 6 months''--I would like 
somebody to say ``I am absolutely 100 percent sure I can do it in 6 
months.'' But they think they can do it in 6 months. There is the 
reason for a year. There is the reason for a longer transition period.
  If privacy were really the concern--and everybody has come down and 
said: I want to protect the privacy of the American people. Let me 
point out a couple of things.

[[Page S3433]]

  No. 1, we didn't collect anybody's name in this program. It is hard 
to intrude on somebody's privacy when you didn't collect their name. We 
collected the number, the date of the call, and the duration of the 
call. That is it. Anything else that turns into an investigation is the 
Federal Bureau of Investigation going to a court and saying: We have to 
have more information because we know the President of the Senate is a 
potential threat to us. And then more information can be found out, 
such as his identity and anything else that might be part of the 
investigation. But from the standpoint of the NSA, those are the only 
things we have--a telephone number, a date, and the duration of the 
call.
  If privacy is the concern, I don't think we have breached it. As a 
matter of fact, since this program has been in existence, there has not 
been one case of a breach of anybody's privacy--not one.
  If they were truly concerned about privacy, they would be on the 
floor today with a bill abolishing the CFPB, which is a government 
agency, a government entity that collects every financial transaction 
of the American people by name, by date, by amount, by transaction. But 
they are not down here doing that. Why? Because they don't like the 
fact that the FISA Court operates in secret. They don't think there 
should be classified or top-secret documents. They believe everything 
should be transparent.
  Well, let me say to my colleagues, my friends, and to the American 
people that we have done more over the last month to destroy the 
capacity of this program because of the debate we have had. There is 
not a terrorist in the world now who doesn't understand that using a 
cell phone or a land line is probably a pretty bad thing. It probably 
puts a target on their backs. We have done a great job of chasing 
people to alternative methods of communication, and I would suggest to 
you that is not making America any safer. If anything, maybe we should 
have had this debate in secret simply so we wouldn't give them a 
roadmap as to what we do.
  Therein lies the reason that there are some things on which I think 
there is a determination made by the executive branch and by the 
legislative branch and I think in many cases at the dining room tables 
around America where Americans say: You know, you don't need to share 
everything with me. I am tired of hearing things on the nightly news 
that I think shouldn't be discussed.
  This probably happens to be one of them because it doesn't make us 
more safe, it makes us less safe.
  I will end the same way Senator Blumenthal did. People want to 
believe--question mark. I think people want to believe we are doing 
everything we possibly can to strengthen our national security, to 
eliminate the threat of terrorism here and abroad. My fear, quite 
frankly, is that this bill doesn't accomplish that.
  Again, I have deep affection for those whose names are on the bill 
and for what they believe is the intent. But I think that at the end of 
the day the only responsible thing to do right now is to accept three 
amendments--one, a substitute, and two, a first-degree and a second-
degree amendment.
  Let me say briefly that the substitute incorporates two changes. One 
change is that the telephone companies would be required to notify 6 
months in advance of any change in their retention program--in other 
words, how long they hold the data. I have received calls from both big 
telecom companies today, and they have both said: We have no problem 
with that.
  The second one would have the Director of National Intelligence 
certify at the end of the transition period that technologically we can 
make the transition. I don't find anybody who has really objected to 
that.
  Then there is an amendment that extends the transition period from 6 
months to 12 months. There have been people who object to that. I would 
only tell you we have a difference of opinion. They are willing to 
trust the NSA on their ability to make the transition in 6 months. I 
think that is ironic because the reason we are here having this debate 
is because they have made us believe we can't trust NSA. Yet, they are 
willing to trust the NSA relative to a transition time that is 
sufficient to accomplish the transition.
  Let's err on the side of caution. Let's do it at 12 months. If they 
can do it sooner, then let them petition us, Congress can pass it, and 
we will turn to it sooner. But let's not get to 6 months and be 
challenged with not being ready to make that transition.
  The last one is a change to amicus language. Clearly, that is the 
biggest difference we have. I would say to my colleagues that you 
either vote for the amendment or you vote against it. If you vote for 
it, you will delay the time it will take for us to connect the dots 
between a foreign terrorist's telephone number and a domestic telephone 
number they might have talked to. If that doesn't bother Members and it 
doesn't bother the public, I am all for giving the American people what 
they want. But I think most American citizens sit at home and say: You 
know, the faster you do this, the safer I am. I have a responsibility 
first and foremost to the protection of the American people. It is in 
our oath.
  I also share something with the Presiding Officer and my colleagues 
who are here--to protect the rights and liberties of the American 
people. And as the chairman of the Intelligence Committee, I don't 
think we have in any way infringed on that.
  I am now in year 21. I have come a lot closer to the line than I ever 
dreamed when I came to Congress in 1995. But I also never envisioned an 
event as horrific as 9/11. I never envisioned an enemy as brutal as 
ISIL or Al Qaeda or the Houthis. I could go on and on.
  What has changed since 9/11? On 9/11, we had one terrorist 
organization that had America in its crosshairs. Today, we have tens to 
twenties of organizations that are offshoots of terrorist organizations 
that would like to commit something right here in the United States. 
The threat hasn't become less; it has become more. We are on the floor 
today talking about taking away some of the tools that have been 
effective in helping us thwart attacks. It is the wrong debate to have, 
but we are here.
  I would only ask my colleagues to show some reason. Extend by 6 
months the transition period. Make sure it doesn't take longer to 
search these databases. Make sure we are ready for the telephone 
companies to carry out the searches because there is one certainty on 
which I think I would find agreement from all of my colleagues here: 
The terrorists aren't going away. America is still their target. No 
matter what we say on this floor, we are still in the crosshairs of 
their terrorist acts.
  Only by providing the intelligence community and the law enforcement 
community the tools to carry out their job can they actually fulfill 
their obligation of making sure America is safe well into the future.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cruz). The Senator from South Dakota.
  Mr. THUNE. Mr. President, I hope our colleagues in the Senate and the 
American people are listening to this discussion because there isn't 
anything that is more important than defending our country. The debate 
we are having in the Senate today is really about the tools our 
intelligence community uses to prevent terrorist attacks.
  As we look at and discuss the legislation in front of us, I think it 
is very important that we not forget we are living in dangerous times. 
This is the most dangerous time, literally, since 9/11 in terms of the 
terrorist activity that is out there. As the Senator from North 
Carolina pointed out, we have a big bull's-eye. The United States and 
people in this country, the things we believe in--the terrorists would 
love nothing more than to be able to take out and destroy, through some 
terrorist act, Americans and American interests. So I think it is very 
critical.
  The Senator from North Carolina did a great job. I know the Senator 
from Indiana is going to speak here on the subject in a few minutes. 
But I hope everyone listens carefully because we are on the cusp of 
doing something that does weaken the very tools that have been used, 
the very capabilities that have been used to prevent those terrorist 
attacks.
  The ironic thing about it, as you frame this up, you look at the 
threats that are out there, the dangerous times in which we live, and 
the success of these programs and how effective they have been in the 
past at preventing a terrorist attack, and what is being

[[Page S3434]]

talked about are potential abuses, hypothetical examples of how these 
programs could be abused, but they haven't been. The fact is, they 
haven't been.
  We have a long period of time now in which to examine the 
effectiveness of these tools relative to the arguments that are being 
made about their abuse. They just don't exist. There isn't a documented 
case, in the time these tools have been in existence, of anybody's 
privacy being breached.
  So it is very important that we look at these issues in light of what 
we are up against and what our No. 1 responsibility is; that is, 
defending Americans and Americans' interests. And this discussion is 
critical to that.


                              The Economy

  Mr. President, I wish to speak on another subject this morning, and 
that has to do with the headline of the New York Times from Friday 
morning of last week, which I thought was pretty grim, and that is 
``U.S. Economy Contracted 0.7% in First Quarter.'' Let me repeat that. 
Not only did our economy fail to grow in the first quarter of 2015, it 
actually shrank.

  That is pretty discouraging news for millions of Americans still 
struggling in the Obama economy, and the Obama administration didn't 
offer them any consolation. Too often the administration has met 
stories of economic woe with excuses: uncertainty in the eurozone, not 
enough foreign demand, the Japanese tsunami, too much snow, too many 
congressional Republicans, and of course the Obama administration's 
favorite excuse, the Bush administration.
  This time, among other things, the administration is blaming the 
measurements themselves. The administration claims the Bureau of 
Economic Analysis is not accurately measuring economic growth from 
quarter to quarter. Now, of course, the Department of Commerce should 
always be looking for ways to modernize our measurements and adjust for 
seasonal changes, but no arithmetical sleight of hand can disguise the 
fact that our underlying economy is so weak that isolated events can 
shut down economic growth altogether and actually push our economy into 
the red.
  Economic growth has averaged an abysmal 2.2 percent under this 
administration since the end of the recession. That is one of the 
weakest economic recoveries in the past 70 years. If the Obama recovery 
had met the average economic growth experienced in all post-World War 
II recoveries, our economy would be $1.9 trillion larger than it is 
today.
  If you look at the President's record, it is easy to see why our 
economy is still sputtering along: a failed $1 trillion stimulus, $1.6 
trillion in new taxes, the President's health care law, which raised 
premiums for families and increased costs for small businesses, 2,222 
new regulations costing more than $653 billion in new compliance costs, 
a Federal debt that has doubled on the President's watch, a financial 
reform bill that has overreached and is stifling community banks and 
lending across the country, and a runaway EPA that wants to increase 
electricity rates on families who are already struggling with stagnant 
wages and now--now--wants to regulate ditches and ponds in farm fields 
across the country.
  All of this has led some economists to wonder if 2 percent growth is 
the new normal. If it is, it is very bad news for American families who 
will face a future that is less prosperous with less economic 
opportunity and mobility.
  During the entire postwar period, from 1947 to 2013, our Nation 
averaged 3.3 percent growth. At that pace, the standard of living in 
America almost doubles every 30 years. Incomes rise, financial security 
increases, and more people are able to afford homes, take vacations, 
and save for higher education. At the pace of growth we have seen since 
2007, on the other hand, it will take closer to 99 years for the 
standard of living to double.
  Unfortunately, our recent weak economic growth shows every sign of 
continuing. The Congressional Budget Office projects our economy will 
grow at an average pace of 2.5 percent through 2018 and just 2.2 
percent from 2020 through 2025.
  That is not good news for American families. For generations, 
individuals have clung to the promise America has always held out: If 
you work hard, you could build a better life for yourself and an even 
better one for your children. But after years of economic stagnation, 
that promise is now in jeopardy.
  A survey released last September reported that nearly half of 
Americans over 18 believe their children will be worse off financially 
than they are. A similar percentage of Americans no longer believe if 
you work hard you will get ahead.
  Their disillusionment is not surprising. The weak economic growth we 
have experienced over the past several years has left families 
struggling to make ends meet. Americans are struggling to make health 
care costs and to make mortgage payments. They are no longer sure they 
can put their children through college and retire comfortably. Some 
have even lost their homes. Good-paying jobs are few and far between.
  The U.S. Census Bureau reports that for the time since the government 
began tracking the number, more businesses are closing each year than 
are being opened. Think about that. More businesses are closing. There 
are more business deaths than there are business births in this country 
today.
  Millions of Americans are unemployed, and millions more are being 
forced to work part time because they can't find full-time work. Forty 
percent of unemployed Americans have become so disillusioned with the 
lack of opportunity, they have given up entirely looking for work--40 
percent. That is a staggering number. If the unemployment rate were 
changed to reflect the number of unemployed who have given up looking 
for work, our current unemployment rate would be well over 9 percent.
  The good news is that things don't have to stay that way. We can 
enact progrowth policies that will return our economy to a more 
prosperous path in the 21st century. According to former CBO Director 
Douglas Holtz-Eakin, the differences between 2.5 percent growth and 3.5 
percent growth would have a major impact on the quality of life for 
low- and middle-income families.
  If our economy grows at a rate that is just 1 percentage point faster 
than what is projected, we will have 2\1/2\ million more jobs and 
average incomes will be $9,000 higher. Average incomes would be $9,000 
higher if we grow just 1 percentage point faster than what is 
projected. For a lot of Americans, that is the difference between 
owning your home and renting one. It is the difference between being 
able to send your kids to college or forcing them to go deeply into 
debt to pay for their education. It is the difference between a secure 
retirement and being forced to work well into old age.
  Additionally, the CBO estimates that for every additional one-tenth 
percent increase in economic growth, it reduces our deficits by $300 
billion over the next 10 years. That means an additional percentage 
point in economic growth will reduce our deficits by $3 trillion over 
the next 10 years, and that in turn--reducing deficits--would further 
enhance economic growth.
  Senate Republicans have laid out a number of policies to help grow 
the economy and open up opportunities for low- and middle-income 
Americans. We proposed energy policies that will expand domestic energy 
development which will help drive down energy prices. We are advancing 
trade policies that will help create more opportunities for American 
workers here at home by increasing the market for U.S. goods and 
services abroad. We have proposed tax reform that will simplify our 
outdated Tax Code and make our businesses more competitive, which will 
open up new jobs and opportunities for American workers. We have laid 
out entitlement reforms that will keep our promises to our seniors 
while protecting our economy by reducing our long-term deficits. We are 
pushing for regulatory reforms that will rein in the out-of-control 
government bureaucracies that are stifling economic growth.
  Years and years of government overspending, burdensome taxation, 
massive government programs--many of which don't work--and excessive 
regulation have taken their toll on our economy, but we can still undo 
that damage. For generations, America has held out the promise of hope 
and opportunity, and Republicans are committed to ensuring it does so 
again. We invite

[[Page S3435]]

our colleagues to join us because we can have a better, brighter, and 
more prosperous future for future generations of Americans by changing 
directions, changing the policies, doing away with the regulations, the 
overreaching government that has made it so difficult for so many 
Americans to get ahead.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, we are fortunately moving forward on this 
issue of extreme importance to the security of the American people. 
These are necessary procedures we should take to do everything we can 
to ensure our safety, to publicly discuss and debate the issue of 
terrorist threat and the measures the people's government is taking to 
defend our country and to defend each individual American from being a 
victim of terrorism.
  As Senator Burr, chairman of the Intelligence Committee, just 
related, the threat to our certain security and to our safety has never 
been stronger, never been more threatening, with the proliferation of 
terrorist organizations, the unfortunate proliferation of the 
inspiration that is being provided through social media to any number 
of American citizens--and those who may not be citizens but are 
residing in this country--to take up arms or to create a bomb or bring 
harm to Americans in the name of support for jihad, in the name of 
ISIS, in the name of Al Qaeda, in the name of support for the extreme 
fundamentalist activities of terrorists that are prevailing not only 
through the Middle East but affecting the world in various places.
  We know through intelligence gathering and through public statements, 
the United States has been put in the crosshairs. ``Kill Americans, no 
matter how you do it, take it up. We will learn today, if we haven't 
learned already,'' something that has just come across the wires of 
someone who was attempting to do just that, and we just see more and 
more references to these types of attacks.
  Unfortunately, we are in a period of time when one of the methods we 
had to try to detect these threats is no longer in operation. It is not 
in operation because the authorization for going forward with this 
program, described as section 215 of the PATRIOT Act--the collection of 
raw telephone numbers, not anybody's name but raw telephone numbers--
that we could use as a base to determine whether, from a foreign 
source, a known terrorist or someone connected to a terrorist 
organization is talking to somebody in the United States. That is the 
program. Unfortunately, that program is dark. It is shut down. It shut 
down at midnight Sunday.
  The program was shut down because we could not achieve support for 
even a minimum extension of time for which to better understand the 
program, to better debate and discuss the program, to make adjustments 
necessary to ensure that Americans' privacy was not being breached. 
Several requests were made and, unfortunately, one Member, exercised 
his right to say no to a unanimous consent request, and we were in a 
position where we had to ask for consent driven by our procedural 
process we have to go through to achieve a vote. But, that vote was 
rejected time after time after time. So on the basis of one Member's 
objection, we have what I believe, what many believe, and what those 
who better understand this now that we have been able to disclose what 
it is believe is a necessary tool that ought to be in place.
  This program ought to be in place for the very purpose of doing 
everything we can to prevent another 9/11, to prevent something much 
worse than 9/11, which would involve a 9/11 type of action coupled and 
married with a weapon of mass destruction. Where an attack in New York 
would not result in 3,000 in casualties--it would potentially result in 
3 million casualties or even more or something concocted by a small 
group of people who would shoot up a shopping mall or rush into an 
elementary school or just simply take down someone on the subway system 
or an individual attack by someone with a knife or an ax or a gun.
  One of the essential programs we have had that has been successful 
has been under attack in terms of breaching the privacy of American 
citizens. I think it has been made clear in the last few days that 
there has been no abuse of this program and that no one's privacy has 
been breached. The only allegation that holds true is that it has the 
potential to breach someone's privacy. Over the years, there has never 
been documented abuse. No one's privacy has been breached. To shut down 
a program with that kind of record on the basis that something could 
happen, that government could use this, I know resonates with a number 
of people in the United States. I really don't blame them.
  This current administration's policies have created great distrust 
among the American people as to their leadership, as to their 
operations, as to their policies.
  When we look at what has taken place with the IRS, definitely 
breaching people's privacy for political purposes, when we look at 
Benghazi and the coverup that has taken place in Benghazi, with the 
administration refusing to stand up and take responsibility for not 
responding adequately and changing the narrative and rewriting the 
intelligence. And when we look at Fast and Furious and the agency 
responsible there. I fully understand not just the frustration but the 
anger that American people have and the distrust they have.
  One of the most difficult issues those of us in the Intelligence 
Committee have had to deal with is that when there are descriptions of 
policies that are implemented in terms of providing for an intelligence 
gathering and necessary response to prevent terrorist attacks, that 
information is classified. So when we see the program being 
misrepresented and described as something that it isn't, we don't have 
the ability to respond. We can't go to the press without breaching our 
oath to secrecy. We do not and cannot release classified material.
  So while we now are in a position of having to unclassify this 
material, we have to understand that everything we say is not only 
listened to by the American people in an attempt to ensure their 
privacy is not being breached--and that this is an essential tool to 
help prevent terrorist attacks. Terrorist groups know everything that 
is being said and done, and they will make behavioral changes. They 
will make changes in terms of how they communicate.
  So the program is being compromised by the very fact that we have had 
to come on the floor and publicly address it and release information as 
to what it is to help assure the American people that, in fact, what 
has been said about the program is simply false.
  I have been on the floor several times raising that issue, using the 
quotes of what has been said by Members on this floor--particularly one 
Member. That is blatantly false. It is a blatant misrepresentation of 
what the program is. Now, I am not questioning their motive. I am not 
questioning the individual's decision in terms of whether he is for or 
against or wants to support or not support. All I want to do is clarify 
so that the public has the facts and they can make their own 
determination. We make a valid case that privacy is not breached. If 
someone comes to the conclusion that they don't trust what we say, 
don't believe what we say or don't agree with what we say, that is 
their decision. All I want is for them to have the facts in front of 
them so that when they make that decision, it is based on fact and not 
based on what has been misrepresented.
  That is why I took the actual words stated on this floor relative to 
the program--which I believe misrepresented the program--and challenged 
them. I challenged them with the factual information. I am not going to 
repeat them. That is a matter of record.
  We now are at the point, however--because we were not able to achieve 
any support for any kind of extension to either clarify what the bill 
does and doesn't do or to clarify with the House of Representatives how 
we best can coordinate this process and come up with a good solution to 
the issue--where, procedurally, we only have two options.
  One option is essentially to do nothing. The program does not secure 
the votes to be reauthorized, and that program is taken off the books 
and is no longer there. In my opinion and in the opinion of many, that 
makes us more vulnerable. That gives us less access to be able to stop 
a terrorist attack.

[[Page S3436]]

  The second option is to support an effort that was passed by the 
House of Representatives, the USA FREEDOM Act, which I wish I could say 
addressed the issue and doesn't compromise the program. But it severely 
goes against what this program attempts to do. It compromises the 
program to the point where I am not even sure the program can exist 
under the provisions that have been enacted by the House of 
Representatives.
  Three very experienced and trustworthy individuals who don't have to 
salute the Commander in Chief and can give their own unbiased opinions 
on this came before our Intelligence Committee and basically said that 
with the structure of the USA FREEDOM Act, you might as well not have 
the program in it because it will take down the program. There are a 
couple of major issues here that these amendments try to address but 
don't technically address. I am going to be supporting those 
amendments. I think they make a bad piece of legislation a little bit 
better. But I have real questions as to whether it addresses the 
problems that really render the program inoperable.
  The first is retention. There is no mandatory retention among 
telephone companies that they keep the information--the phone numbers--
that we need in order to create a haystack of numbers from which we can 
identify connections between foreign terrorist organizations and 
operatives inside the United States. That is not done by somebody 
looking at anybody's records. Before the NSA can even use a phone 
number, it needs to have outside approval--legal approval--to query 
that.
  If the telephone companies don't retain those numbers, we can't go 
out and match them up. And there is no mandatory retention of those 
numbers. It is simply an amendment now that would basically say they 
would have to give us notice that they don't retain them. But there is 
no mandatory retention.
  I can just see a lot of companies saying--and I have heard from a lot 
of companies: We don't want to be responsible for trying to build in 
the protections and hire the people who have the background checks and 
the security clearances to put a regulatory process in place to make 
sure our people don't abuse this or use it for the wrong purpose.
  So here we have a program that is accessible only by a very limited 
number of people at the National Security Agency, overseen by layers 
and layers of lawyers and legal experts and others to make sure it is 
not abused in any way. They have been successful because there has not 
been one case of an abusiveness process against anybody's personal 
liberties. There are six layers of oversight that are in place before 
they can even take it to the court and say: We think we have a problem 
here. We think there is a suspicion--a reasonable suspicion--that a 
phone number may be associated with a terrorist organization.
  Then the court looks at that and says: We think you have something 
here. But let's check it further before we give you the authority to 
turn this over to the FBI so they can then look into this in greater 
detail to determine whether this is a live terrorist act.
  As Senator Burr said, it works on the negative side, also, and there 
are some examples of live situations--as in the Boston bombing and so 
forth--that proved the negative. It proved there wasn't a conspiracy. 
It proved that just two people were involved in this. There were no 
connections. So they didn't have to waste a lot of time trying to query 
and pull up a bunch of information about whom they had talked to, and 
the police were then allowed to focus their efforts on Boston and what 
then took place in Boston and not throw the alarm out to New York 
City--the allegation was that they were on the way to New York City--
and shut down New York City, causing panic and causing scare and 
alerting police and so forth. They were able to prove the negative of 
that. So it works both ways. But without that retention, we are not 
going to be able to accomplish that.
  So I don't understand how the USA FREEDOM Act is a better way of 
protecting privacy and a better way of dealing with the fact that time 
is of the essence here. Instead of querying one area, we now have to go 
to multiple telephone companies, and there are 1,400 in the country. 
Let's say there are 100 major companies or let's say there are 10 major 
companies. We have to go to all 10 or to all 100 or more in order to 
find out whether in their database that telephone number exists. Time 
is of the essence here. If you are detecting a terrorist attempt and 
you build in all kinds of steps you have to take in order to get to the 
point where you think you really have something here, the act could 
have already been undertaken.
  So those two issues, I think, are major problems with the FREEDOM 
Act.
  The third is simply to think that the layers of protection and 
judicial oversight, executive oversight, and congressional oversight 
that take place to make sure we don't abuse the program through NSA--
every telephone company has to insert that same level of oversight, and 
they simply won't be able to do it. It will take months. It takes 
months to get background checks and security clearances. Many telephone 
companies don't have the capacity to do that. They do not have the 
financial ability to do that. The irony is that individuals' privacy is 
more at risk by the telephone companies holding the numbers than the 
NSA holding the numbers, but, of course, we have not been able to 
convince the American people of that partly because the program has 
been so distortedly reported. But this as the saving grace to protect 
everybody's privacy by turning it over to the phone companies instead 
of turning it over to NSA just doesn't add up.

  It is going to be very difficult for me and I think for many of my 
colleagues to think--while many of us are going to support these very 
limited amendments, which we don't even know the House will accept, it 
does not resolve the issue and does not solve the problem that we are 
dealing with here and, in effect, could render the program inoperable.
  I think when Members are making decisions about which option to 
choose, it is a devil's choice. Is something better than nothing or is 
something really nothing and you end up with nothing and nothing? None 
of us wants our country to be put into that position, but that is where 
we are. If we are not able to secure passage of these amendments to 
improve this and the House rejects it--or we reject it or the House 
rejects it, then the program will stay inoperable.
  I think the American people will then be picking up their phones and 
writing and emailing us and urging us to rethink this program through 
now that they know more about it, now that they know that much of what 
has been said irresponsibly by Members of this body and others is not 
true. Once they learn more about it, I think they will be calling on us 
to take a new look, and they will take a new look.
  The arguments simply do not hold up because they are not factual. Now 
that we have been able to release some of this classified information 
and now that people have the ability to understand, if they so choose--
to take another look at this and the proof we have provided relative to 
the success of the program and relative to the need for the program.
  That is what is before us. There has been a constitutional argument 
here regarding the Fourth Amendment, and it is important to note: ``The 
right of the people to be secure in the persons, houses, papers, and 
effects against unreasonable searches.'' Unreasonable. I think we have 
proven this is not an unreasonable search. It does not identify 
anybody's name. Only after a court approves and gives the NSA the 
authority to go forward, similar to seeking the authority of a judge 
for other suspected criminal activity taking place in every 
jurisdiction across America, every town, every police department going 
to court. We tune in to ``Law & Order'' and ``CSI'' and all these 
programs and we see exactly how this works. You cannot go barging into 
a house without a warrant. You cannot collect information without a 
warrant.
  The case being made that there is a violation here of the Fourth 
Amendment simply has not held up with legal authorities. Secondly--this 
is interesting. This was just pointed out to me. I am not a 
constitutional scholar. I took constitutional law in law school

[[Page S3437]]

and probably have forgotten half of it. But I do carry it around. I do 
look at it, but I am not a scholar. But I think it is pretty clear and 
pretty interesting that article I, section 5, talking about the 
legislature, says:

       Each House shall keep a Journal of its Proceedings, and 
     from time to time publish the same--

  It is on our desks here. Every day, our Congressional Record, these 
are our proceedings--

     excepting such Parts as may in their Judgment require 
     secrecy.

  That is why we have an Intelligence Committee. There are some things 
that require secrecy. Unfortunately, we have had to unclassify 
information to try to let the public know that what they have been told 
by their government, elected members of their government, is breaching 
their privacy, which is not true. We have a constitutional right as a 
body to make a decision and a judgment requiring secrecy. On this 
program, we require secrecy because once our adversaries know what we 
are doing, they are going to change what they are doing and it will not 
be worthwhile anymore.
  Also, relative to the statements made by the Senator from 
Connecticut, who opposes the amendment on the amicus issue, it is my 
understanding that the Administrative Office of the United States 
Courts, Director Duff, sent a letter to the House asking for their 
concerns about the amicus issue effect on the court be placed in the 
bill. That was turned down by the House, unfortunately.
  The letter says, ``We respectfully request that, if possible, this 
letter be included with your Committee's report to the House on the 
bill.''
  It was sent to the chairman of the Permanent Select Committee on 
Intelligence, United States House of Representatives. It is in regard 
to H.R. 2048, the USA FREEDOM Act.
  Mr. President, I ask unanimous consent that the letter I am 
referencing be printed in the Record.
  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,

[[Page S3438]]

     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 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.

  Mr. COATS. There is a lot more that could be said. We will shortly be 
voting on the amendments here. I probably said more than I should.
  Mr. ISAKSON. Will the Senator from Indiana yield?
  Mr. COATS. I will be happy to yield.
  This is one of the most important issues I have had to deal with 
during my times of service on behalf of our State and our country. I 
think getting the facts out has been necessary. It is a momentous 
decision that has momentous consequences. I hope each of us will take 
very seriously all that has been said and weigh that in their own 
judgment and hopefully make the right decisions for the future of this 
country.
  I will be happy to yield to my colleague.
  Mr. ISAKSON. I know we are about to adjourn for lunch, but I have to 
come to the floor and pay the Senator a great compliment. For the last 
6 days, the Senator has tried to illuminate some misperceptions and, 
quite frankly, half-truths that have been talked about in terms of the 
NSA program. You have provided great information to the Senate and to 
the people of the United States of America, and I think it is ironic--
and I do not believe the Senator from Indiana knows this--but today in 
the Finance Committee at 10:30 we had a hearing before the IRS 
Commissioner, Mr. Koskinen, who was trying to explain what the IRS was 
doing with the 104,000 identities that were stolen from the IRS, which 
included the Social Security numbers, church contributions, home 
residences, rent payments, debts, obligations, the entire amount of 
information of 104,000 American citizens. Nobody is talking about 
giving the IRS to the phone companies. Nobody is talking about the 
amount of information the IRS has and whether the government abuses or 
uses it. And here we are worried about 41 individuals who have the 
ability to know 2 telephone numbers, the origination of a call and the 
duration of that call, without its association to a name, unless a 
judge says it is OK.
  I think there has been a lot of misdirection this week. The American 
people are starting to listen. I think the Senator from Indiana has 
done a great job of illuminating the truth behind this issue. We have a 
great country. You do not find anybody trying to break out of the 
United States of America. They are all trying to break in. They are 
because we are safe and secure. I commend the Senator for fighting for 
the safety, the security, and the rights of the American people.
  I yield back.
  Mr. COATS. I thank the Senator for those words. I think this is a 
fight for all of us. How I wish we had been putting our time and our 
passion into what the Senator from Georgia just mentioned--a clear 
breach of people's privacy on the record and a clear defense effort by 
this administration to not have us go forward and examine this. If we 
had been putting half of the passion into that, we would really be 
servicing the American people and the breaches of their privacy that 
are just apparent.
  Here we have a program that has never had a case of a breach of 
privacy, that has more oversight than any other program in the entire 
U.S. Government, that involves all three branches of our government--
the judicial, the legislative, and the executive--all with the intent 
of having something in place that can stop Americans from being killed 
by terrorists, and we have to spend weeks arguing just to correct the 
record, when so clearly in front of us are abuses by this 
administration that we are not putting attention to--the irony of that 
and the irony of the fact that every day we have more information about 
the scope of these potential terrorist attacks against Americans. Here 
we are releasing five known terrorist leaders from Guantanamo to a 
country. We are combing the world to see if somebody will take them 
because we do not want to retain them here, and we know they are going 
to go back. They are not going back to be baristas at Starbucks. They 
are not going back to do lawn work back home or start a microbusiness. 
They are going back to join the enemy attack against us. They are going 
back to the Taliban. They are going back to Al Qaeda. They are going 
back to do what they were arrested for in the first place.
  How ironic and how uncertain our situation here is relative to our 
security, and we are arguing over a tool that can help protect us 
instead of focusing on the real threat.
  Anyway, I got worked up during the 6 days a number of times. I 
appreciate the opportunity to, once again, try to clarify where we are. 
Hopefully, the American people are listening.
  We have a momentous decision to make coming up here very shortly. I 
hope each of us will use not polls and not what the public perception 
is, I hope each of us will use the judgment that we have had and the 
access to information that we have had to make a

[[Page S3439]]

decision on the basis of what is best for the American people, not 
about what is best politically, not what gets us past the next 
election, not what is pleasing to people who want to hear things back 
at home, not on any other basis than what is necessary to do everything 
we can to keep us safe from known terrorist attacks that are 
multiplying faster than we can keep up with across the world, and 
Americans are in the crosshairs. Our decision should be based on that 
and that alone.
  I yield the floor.

                          ____________________