Congressional Record, Volume 166 Issue 48 (Thursday, March 12, 2020)

[Congressional Record Volume 166, Number 48 (Thursday, March 12, 2020)]
[Senate]
[Pages S1724-S1733]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNANIMOUS CONSENT REQUEST--H.R. 6172

Mr. LEE. Mr. President, they spied on the President of the United
States. They used the apparatus of the U.S. Government's superb
intelligence gathering agencies to spy on then-Candidate Donald Trump,
now President of the United States. They did so in a way that was
entirely predictable, entirely foreseeable, and in some ways avoidable,
if, in fact, we had the right laws on the books. We don't. That needs
to change. That is why this moment is a pivotal moment when three
provisions in the Foreign Intelligence Surveillance Act are about to
expire this coming Sunday, March 15.
We have known that this day was coming for many years. In fact, it
was in 2015 when Congress last reauthorized the three expiring
provisions on any long-term basis. The three expiring provisions are,
of course, known as Lone Wolf, Roving Wiretaps, and 215. It is to the
last of these three sections, 215, that I am directing most of my
remarks today.
Now, 215 is only the beginning and not the end of the portion of the
Foreign Intelligence Surveillance Act, also known as FISA, that needs
reform. We need reform across the board, but the expiration of 215
gives us a unique opportunity to do that. We reauthorized it in 2015,
knowing that it would come back again for reauthorization in December
of 2019.
In December of 2019, we were in the middle of doing other things, so
an agreement was made within this body that we would extend 215 and the
other two provisions until this coming Sunday, March 15. So absent
action by this body between now and Sunday, March 15, those three
provisions of law will expire.
Those three provisions of law should not have to expire because we
ought to be able to reform FISA. A number of us have been working on
this not just for days or weeks or months but, literally, years. I am
now in my 10th year in the U.S. Senate. Basically, the entire time, I
have been working on reforms to FISA, figuring out where its weak spots
are, and warning my colleagues years in advance that at some point this
would be abused.

[[Page S1725]]

We have to remember what happened with the Church Committee. The
Frank Church Committee, a few decades ago in the U.S. Senate, looked at
the use of intelligence gathering and concluded that in every
administration--basically from Wilson through Nixon, who was the
President immediately before the Church Committee did its investigation
and issued its report--U.S. intelligence gathering agencies had abused
their authority for partisan political purposes basically to engage in
political espionage. We know that this is dangerous. We know that this
is bad. We also know that this is just the beginning and not the end of
the opportunities for abuse.
Consider this: Given the breadth and the wide scope on the authority
provided under FISA and given the fact that the Foreign Intelligence
Surveillance Court is able to operate in secrecy and, for the most
part, without any type of appellate review and any type of judicial
review, these are provisions that are, in fact, vulnerable and
susceptible to abuse.
So it is not just the President of the United States who has reason
to be concerned about this. If the President of the United States has
reason to be concerned about it, as he does--he reminded us just in the
last few hours, issuing a statement this morning indicating that he
still has concerns with FISA and that many Senators are pointing out
the flaws in the reform package passed by the Democratic-controlled
House of Representatives earlier this week and that many have
encouraged him to veto that legislation on that basis. But if the
President of the United States himself has reason to be concerned about
FISA, what about the rest of America? This is just the episode that
people know about in connection with the abuse that took place in the
Carter Page investigation. Had Donald Trump not become President of the
United States, we might well still not know about this particular
instance of abuse. Because of the secret manner in which this law
operates and the failure to provide special protections for known U.S.
citizens, we all stand vulnerable--every American citizen, whether they
hold office or not, whether they are famous or not, whether they are
rich or poor, regardless of their culture, their background, or what
part of the country they hail from.
So what we are seeking here are a few modest reforms to make sure
that it is a little bit harder to abuse this law. We know human beings
are flawed and fallible, and we have to rely on human beings to run
governments. It would be nice, as James Madison said, if men were
angels because, as Madison wrote in Federalist 51, if men were angels,
they wouldn't need a government. And if we had access to angels to run
our government, we wouldn't need all these rules surrounding the extent
of the power of government to protect us from the inherent risk
associated with the unjust, excessive accumulation of power in the
hands of a few.

But, alas, we are not angels, nor do we have access to angels to run
our government, so we have to rely on rules. The rules we are proposing
are not excessive. They are not extreme. They are actually very mild.
Among other things, we would like to see more robust amicus provisions,
meaning provisions allowing for a third-party advocate in the FISA
Court to be called in, under certain circumstances, especially
involving a sensitive investigation--involving, for example, a
political campaign or a candidate, an office holder, a church, a media
establishment, something like that that operates with express
constitutional protection. An amicus ought to be appointed to represent
an absent contrasting viewpoint, to represent American citizens where
American citizens' rights might be in jeopardy.
Understanding, as we have since 2015, that these provisions would be
expiring first in December of 2019 and then we reauthorized them for a
short period of time to give us more time to address these amendments,
I have, for years, been working on proposals and revisions to FISA with
this specific expiration deadline in mind.
I have not been, nor have any of my colleagues who have concerns
about this, unreasonable or extreme in our demands. In fact, for me,
personally--and I will not purport to speak for anyone else in this--
for me, personally, I would be fine with two of the three provisions
being reauthorized without any further modification. Lone Wolf and
Roving Wiretaps--let them get reauthorized; that is fine. Let's deal
with 215 separately.
Incidentally, section 215--if Sunday comes and passes, 215 doesn't go
away. It just reverts back to a previous version of 215--a previous
version that still gives the government the ability to gain access to
some business records associated with FISA-ordered targets. It is just
a narrower category.
Now, we can argue about whether that earlier provision would be
adequate. Incidentally, inspectors general have looked at this and
concluded that the 9/11 attacks were not the fault of the inadequacy of
215. They were the result of mishandling of information that they did,
in fact, gather and were able to gather.
In any event, I would love to be able to have that conversation
separately with regard to 215 without all three of these provisions
being held hostage simultaneously. I have made that offer. That offer
has been rejected.
I also think another appropriate approach in this circumstance might
well be to give ourselves a 45-day extension. A 45-day extension would
give us a little bit more time to deal with the coronavirus-related
crises that we face right now and then consider and debate and vote on
some additional amendments--some amendments that have never had the
opportunity to see the light of day.
Keep in mind, this provision--getting back to the expiring provision
that I have concerns with, section 215--existed prior to the moment
when it reached its current formulation. When it existed in that
formulation, it really did what the government needed it to. No one
really argued that it had been inadequate. There were some people, I am
told--I wasn't in the Senate or in Congress at the time that it came to
be. I am told that its advocates included Robert Mueller, Jim Comey,
and others, who just thought it would be a good idea to give the
government more power.
We have seen since then what happens when you give Jim Comey and
Robert Mueller and other people in the government more power, and we
have seen that there are some risks associated with this, not just if
you are a President of the United States or a candidate for the
Presidency of the United States, but we know that all Americans are
potentially vulnerable.
So we fast forward to earlier this week, less than 48 hours ago. We
received legislation, the legislation that was passed by the House of
Representatives yesterday. That legislation was negotiated without
involvement or without direct input from anybody in this body. The
majority leader himself has stated publicly that he was not involved in
the negotiation of that measure. That measure was passed within about
24 hours after it was introduced. It is now coming over here.
Now, I am not saying that it shouldn't be considered. In fact, I am
kind of saying the opposite of that. I am saying, I am happy to
consider it, but we need the opportunity to actually consider it. The
world's greatest deliberative legislative body or so it calls itself--
the Senate--is supposed to be the cooling saucer, the cooling saucer
where the hot tea spills out and is allowed to cool before it is
consumed.
In these circumstances in particular, where rights are at stake,
rights are at stake that are potentially threatened by provisions under
this bill--this bill introduced by Representative Nadler, and supported
by Representatives Schiff, Pelosi, and others--which hasn't had the
opportunity to be independently reviewed in the Senate or to be debated
or discussed or amended in the Senate. That is all I am asking for
here.
All I ask is to give us a few weeks. Let's take 45 days. Give the
Senate a chance to deal with the immediate crises associated with the
coronavirus and then a chance for us, in a timely fashion, to review
the Pelosi-Nadler-Schiff bill and consider our own amendments to it--
bipartisan amendments from people who have reached across the aisle in
an effort to make this bill better.
So it is for those reasons that I ask unanimous consent that the
Senate proceed to the immediate consideration of the Senate bill at the
desk providing for a 45-day extension of FISA. I

[[Page S1726]]

ask unanimous consent that the bill be considered read a third time and
passed, and that the motion to reconsider be considered made and laid
upon the table; further, that at a time to be determined by the
majority leader in consultation with the Democratic leader, the Senate
proceed to the consideration of H.R. 6172 and that the only amendments
in order be six amendments offered by the following Senators: Senator
Lee, Senator Leahy, Senator Daines, Senator Wyden, and Senator Paul. I
further ask that upon disposition of the amendments, the bill, as
amended, if amended, be read a third time and the Senate vote on the
bill, as amended, if amended, with no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
The Senator from North Carolina.
Mr. BURR. Mr. President, reserving the right to object, I want to
thank my colleague. He has shown more interest in this bill today than
he has ever in the history of tools that keep us safe.
I remember Paul Harvey on the radio. He always came on and said:
``Now, for the rest of the story.''
Senator Lee has never supported this bill, never supported giving any
of these authorities to law enforcement. And let me explain what they
are--roving wiretap and lone wolf. Lone wolf is that individual out
there who pops up, whom we can find, who is not tied to an
international terrorist group but is homegrown. On wiretapping, we are
going to take roving wiretaps away from the Federal Bureau of
Investigation, and we are going to take it away for terrorism. But
since 1960, they have had roving wiretaps for organized crime--think
about that--and then business records and their access to business
records to find those clues that we need to keep America safe.
Senator Lee talked about us holding hostage. No, we are not holding
anybody hostage. He is holding the bill hostage to get amendments, some
of which shouldn't even be considered under the reauthorization of
section 215. They are FISA reforms being taken up by the Senate
Judiciary Committee.
That bill that came over from the House--the one supported by Pelosi,
Schiff, and Nadler--is actually a bipartisan bill that 63 percent of
the Republicans in the U.S. House of Representatives have supported. It
is Leader McCarthy. I will not go down the list of them. But it is easy
to make this out as the boogeyman.
But to my colleagues, we don't play national security risk, boogeyman
games against the American people. We err on the side of providing as
many tools as we possibly can to make sure that our oath to keep
America safe is as robust as it possibly can be.
Now, why do we need to do this? It is because we need to provide law
enforcement the certainty of knowing that they can continue to use
these tools. If not, we are going to have cases that they are working
on today where they have to stop at midstream and start over at some
point later on. The question is, Will they be able to, or will they
have lost the coverage they need on a certain individual?
Now, what happens if they are gone? Well, we have been there. This is
the result of trying to create guardrails that these agencies operated
in. The President, under 12333 authority, can do all of this without
Congress's permission, with no guardrails, with no ability to go in and
say: Stay within this.
That authority exists.
The thing that I hear the most is that we want the ability for an
amicus to go in and represent somebody in front of this foreign
intelligence court. Well, let me tell you something that you are never
going to be told. The court itself has the authority, today, to assign
an amicus to any case that comes before the court. And what better
judge is there to make a determination as to whether an individual on
whom there is an application on for FISA coverage than the court itself
to determine: Is this a person, an individual, who needs to be
represented by a third party? No, it is not good enough to let the
courts do it; they want to make sure that everybody does it. And when
everybody does it, we slow down a process because that is what they are
there for. We slow down a process that is there trying to be ahead of
the security risk that might have been prevented.
Personally, I am ready for a big debate. We are going to have it next
week, and we can have a debate on every one of the amendments of
Senator Lee and the list of people he gave, and I think that they will
be struck down. But I am not going to have a 45-day extension. I will
let us go dark. I will let us go dark, and if there is a need, the
President, by Executive order, can do it for whatever period people
think they are willing to let it expire.
I will make every attempt to try to get this process of reviewing
FISA--not 215--in the Judiciary Committee, where it should come out of,
where the folks on the Judiciary Committee, who are experts on the
interactions with the court, have an opportunity to have input.
These amendments may never come out of the Judiciary Committee. They
may never come out. Yet they want to expedite them and bring them right
to the floor on a bill that is not necessarily appropriate to put them
on.
Why? It is because they know by themselves they will never become
law. They will have a tough time. So they will hold up those tools that
we use for national security in an effort to try to get some changes.
Well, I am holding the changes. This is not a straight
reauthorization. This is a bill that has very carefully been crafted by
the Attorney General, the Speaker of the House, and the minority leader
of the House. Sixty-three percent of the Republicans and not as many a
percentage of the Democrats supported it. I think it was 270-some votes
out of the House of Representatives.
Truthfully, by unanimous consent today the Senate should approve what
they passed, but we will not because somebody wants to demand all of
these amendments.
So for that reason, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. LEE. Mr. President.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I appreciate the care, attention, and detail
shown by my friend and colleague, the distinguished senior Senator from
North Carolina. I do disagree with him for 10 independent reasons.
No. 1, as to the suggestion that the proponents of the unanimous
consent request now before this body--that is, the very simple, clean
reauthorization of the expiring provisions for 45 days, giving the
Senate an opportunity to spend just a few weeks to debate and consider
these amendments after dealing with the coronavirus crisis--he
suggested that I, as the proponent of this measure, have--I think the
words were--never supported any of these tools, never in my entire time
in the Senate lifted a finger to support these tools. That is curious
because I was the author and lead sponsor of the USA FREEDOM Act,
which, in 2015, extended and reauthorized these very same provisions.
So his first argument is factually incorrect.
No. 2, he points to the lone wolf and roving wiretap provisions as
things that he is concerned about. I understand that they want those.
Now, lone wolf isn't used, but it is sort of a security blanket. People
like knowing that it is there within the government, and I am willing
to let that go. Roving wiretaps are used from time to time. I am
willing to let that go. In fact, I have offered repeatedly--and I will
offer again right now, if it is helpful--that I am willing to
reauthorize those right now without a single modification, without a
single limit beyond what has already been put in for the other
provisions. I am willing to do that free of charge on anything. So
those arguments are frankly disingenuous.
No. 3, as to the suggestion that I am somehow holding this bill
hostage, I say to the Senator: You, sir, have it wrong. You have it
precisely backward. What I am doing is saying: Let's preserve the
status quo. We have a crisis to deal with, with the coronavirus.
It is of great frustration to me that this body, through its majority
leadership and through its other leadership has known for years--I put
them on notice for years, for basically the entire time I have been at
the U.S. Senate--that I am concerned about these provisions. I have
made known ever since 2015, when we reauthorized these provisions at
issue, that I would continue to

[[Page S1727]]

want more reforms. Why we waited until the final days before the
expiration of that period is beyond my ability to understand. But it is
factually incorrect and manifestly unfair to suggest that I am the one
holding this hostage.
I say to the Senator: It is quite the other way around, sir.
As to the suggestion that these are FISA reforms, not PATRIOT Act
reforms, well, yes, they are all part of this package that we refer to
collectively as the Foreign Intelligence Surveillance Act. The Senator
is right as to the provisions, especially the provision that I am most
concerned about, section 215, as we call it--section 215 of the USA
PATRIOT Act. I give him that one, but that doesn't address the
substance of the problem here.
As to Senator Burr's argument that we should err on the side of
keeping Americans safe, I absolutely agree with that. There is no
dispute about that.
I also agree with the findings of the Privacy and Civil Liberties
Oversight Board that concluded a few years ago that our privacy and our
security are not at odds with each other. This is not a zero-sum game
between those two objectives. Our privacy is, in fact, part of our
security. One of the reasons we became a nation, one of the reasons we
don't fly the Union Jack or sing ``Hail to the Queen'' or wear wigs and
robes in court has everything to do with the excessive abuse of the
rights of English subjects, including those on this continent, while we
were existing as British Colonies. Our privacy and our security are not
at odds with each other. They are in fact part of the same cohesive
whole.
No. 6, the argument made by Senator Burr that this provides
uncertainty for law enforcement, well, let me tell you why that is the
case. The only reason there is uncertainty for law enforcement on this,
for our intelligence community and law enforcement agencies that handle
this stuff, has everything to do with the fact that he just objected to
this unanimous consent request.
We could, right now, eliminate their uncertainty. We could have,
likewise, at any point in the months leading up to this, at every point
in which I would have been willing to debate and discuss these things.
For years I have had reforms on the table that we could have
considered. We could have brought those up. We could have done it then.
It is not me who is creating the uncertainty for law enforcement. It
is instead the unreasonable objection to receive any of my offers,
including passage of the Leahy-Lee bill, including passage of lone wolf
and roving wiretap independently, including simply extending and
cleanly reauthorizing the three expiring provisions for 45 days, giving
us the chance to consider a handful of amendments.
So I say to the Senator: Don't talk to me about being the one who has
created uncertainty. That, sir, is you.
No. 7, Senator Burr argues that a President of the United States can
do all of this, in any event, without the three expiring provisions on
the books. Well, my response to that is that is kind of curious. If
that were the case, why is he fighting so hard for these provisions?
Why should anyone be concerned about their expiration? He suggests
somehow that we would not have guardrails--any guardrails in place--if,
in fact, these were allowed to expire. If they were allowed to expire,
I am not familiar with any authority that would provide language
identical to that found in lone wolf or roving wiretap or 215.
So if that is the case, perhaps you, sir, would rather have them
expire. I really don't know, and I don't think that advances your
argument.
No. 8, the suggestion was made that these amicus provisions--which
are not the limit; they are one of six amendments that I would like to
propose and I would like the Senate to consider. But the FISA Court
already has the authority to appoint an amicus. Well, this is true. We
put that in the USA FREEDOM Act in 2015. The court does have that
authority. That doesn't mean it happens as often as it should. In fact,
as we saw with the abuse that took place in connection with Operation
Crossfire Hurricane targeting the sitting President of the United
States when he was a candidate, in many cases, the FISA Court judges
are not themselves terribly careful. Perhaps it would be helpful to
have somebody else in the room. I don't know why we should be so afraid
of that.
No. 9, to the extent that anyone is going to let this program go dark
and if that concerns you, then you ought to agree to this unanimous
consent request. This unanimous consent request will result in it not
going dark.
I have made it entirely foreseeable that I would want to have
amendments at least debated, discussed, and considered before we got to
this moment. It is not unreasonable for me to ask. I am not asking that
you accept these amendments, that you incorporate them into existing
law; I am instead simply asking that we be given the opportunity to
vote on them.
Finally, No. 10, Mr. Burr argues that this legislation was carefully
crafted by the Attorney General, the Speaker of the House, and several
other officials and that some 270 or so Members of the House of
Representatives voted for this. Well, good for them. That is their
prerogative. I have my own election certificate. I serve in a different
legislative body. I am aware of no obligation on my election
certificate that requires me to defer to the Pelosi-Nadler-Schiff bill.
In fact, I refuse to do that. It is insulting to this body.
Had the Founding Fathers wanted to create a unicameral legislature,
they could have done so. Had the Founding Fathers wished to create the
Senate of the United States as simply a rubberstamp that would review
what the House of Representatives did and then have a veto, yes or no,
open or closed--a binary reaction to what the House of Representatives
did--they could have, they would have, and they should have done so.
They did not. We have our own independent obligation to review this
legislation. I have done so. I find it inadequate.
I am not demanding that all my amendments be accepted as a condition
precedent for my willingness to keep these from going dark. All I am
saying is that I want the opportunity to have amendments considered--
bipartisan amendments--introduced by several Members.
So I am going to make another request. I will tone this one down. I
will modify this one.
Mr. President, I ask unanimous consent that the Senate proceed to the
immediate consideration of the Senate bill at the desk providing for a
45-day extension of FISA. I ask unanimous consent that the bill be
considered read a third time and passed and that the motion to
reconsider be considered made and laid upon the table; further, that at
a time to be determined by the majority leader, in consultation with
the Democratic leader, the Senate proceed to the consideration of H.R.
6172; and that the only amendments in order be five amendments offered
by the following Senators: Senators Lee, Leahy, Daines, Wyden, and
Paul. I further ask that upon disposition of the amendments, the bill,
as amended, if amended, be read a third time and that the Senate vote
on the bill, as amended, if amended, with no intervening action or
debate.
The PRESIDING OFFICER. Is there objection?
Mr. BURR. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. LEE. Mr. President, you might notice a pattern here. This pattern
is going to continue. This pattern is going to continue because this is
unjust. This is unrealistic. This is unsustainable.
This used to be a body that prided itself on being the world's
greatest deliberative legislative body. It is a body that has its own
unique protections attached to it.
Article I of the Constitution sets out the parameters of the Senate,
and it makes clear that it will consist of exactly two Members
representing each State. The one and only kind of constitutional
amendment that is preemptively unconstitutional, that cannot be
adopted, is that type of amendment that would undo this fundamental,
sacred principle of equal representation among and between the States
in the Senate. You cannot do that.
They did this with a distinct purpose in mind: that we would have the
ability to represent the States as States; that we would not be just a
roving commission on what was satisfactory or whether the House of
Representatives had done its homework but that we

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would be our own independent legislative body. We would be betraying
our oath to the Constitution and those whom we represent if we didn't
do this.
This used to be a place, for that very reason--in fact, until quite
recently, it was a place where any Senator could have any amendment
considered on any legislation. Basic standards of collegiality, of
decency and respect for each other and for the rule of law itself
convinced Members over centuries--literally centuries--to defer to each
other in at least their opportunity to propose and vote on amendments.
In recent years, we have seen this deteriorate. We have seen it
deteriorate, sadly, under the leadership of Republicans and Democrats
alike. We have seen it deteriorate at the expense of the representation
of each individual State.
This simply isn't acceptable, that we would get to this point in
legislation and we would be unable to vote on or consider basic
amendments to so important a law. They are asking us to reauthorize
these expiring provisions--provisions with profound implications not
only for national security but also for privacy, which are part of the
same cohesive whole--and they are asking us to reauthorize those until
December of 2023 with only minimal reforms--reforms that, I would add,
are modest at best, that are perhaps well-intentioned in some ways, but
the Pelosi-Nadler-Schiff bill doesn't cut the mustard. It doesn't do
the job.
I have just asked for six amendments. That was too many. And I have
asked for five amendments, and that was too many. Surely they are not
suggesting that we can't ask for any amendments, because if they did,
that would be patently ridiculous. That would be uncollegial. That
would be uncivil. It would be unsenatorial. So we will try this again.
We will see what we can do with four.
Mr. President, I ask unanimous consent that the Senate proceed to the
immediate consideration of the Senate bill at the desk providing for a
45-day extension of FISA. I ask unanimous consent that the bill be
considered read a third time and passed and that the motion to
reconsider be considered made and laid upon the table. Further, I ask
that at a time to be determined by the majority leader, in consultation
with the Democratic leader, the Senate proceed to the consideration of
H.R. 6172 and that the only amendments in order be four amendments
offered by the following Senators: Senators Lee, Leahy, Daines, Wyden,
and Paul. I further ask that upon disposition of the amendments, the
bill, as amended, if amended, be read a third time and that the Senate
vote on the bill, as amended, if amended, with no intervening action or
debate.
The PRESIDING OFFICER. Is there objection?
Mr. BURR. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. LEE. Mr. President, this is the natural product of the American
people being asked again and again to simply accept that this is how
things will operate. The American people are told to just settle--to
settle for budgets that don't balance or come anywhere close to it; to
settle for a government that spies on you, that lies to you, that
overreaches, and a legislative branch that is somehow all too content
and seemingly eager and willing to allow and perpetuate and even expand
those authorities.
This is unacceptable. We shouldn't settle. We shouldn't settle for an
overreaching government. We should expect a government that respects
the letter and spirit of the Fourth Amendment. We shouldn't settle for
a Senate in which the rights of individual Senators--a bipartisan group
of Senators that has been trying for years to just have a vote on a few
reasonable amendments--would be shut out. We should expect an open,
robust debate, discussion, and amendment process.
Don't settle for any of this. You should expect more. We should all
expect freedom. We should all expect debate and liberty and the
protection of your fundamental rights as American citizens.
So we will try this again, rolling the number down to an absolute
bare minimum number of three amendments.
Mr. President, I ask unanimous consent that the Senate proceed to the
immediate consideration of the Senate bill at the desk providing for a
45-day extension of FISA. I ask unanimous consent that the bill be
considered read a third time and passed and that the motion to
reconsider be considered made and laid upon the table; further, that at
a time to be determined by the majority leader, in consultation with
the Democratic leader, the Senate proceed to the consideration of H.R.
6172 and that the only amendments in order be three amendments offered
by the following Senators: Senators Lee, Leahy, Daines, Wyden, and
Paul. I further ask that upon disposition of the amendments, the bill,
as amended, if amended, be read a third time and that the Senate vote
on the bill, as amended, if amended, with no intervening action or
debate.
The PRESIDING OFFICER. Is there objection?
Mr. BURR. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. LEE. Mr. President, earlier today, when the President of the
United States issued a statement about the Pelosi-Nadler-Schiff bill
purporting to but utterly failing to meaningfully reform the three
expiring foreign intelligence surveillance provisions at issue, the
President expressed grave concern over the process. He expressed grave
concern over the content of the Pelosi-Nadler-Schiff bill, which the
Senate reviewed, voted on, passed without amendment, without adequate
debate, violating the House of Representatives' own 72-hour rule in
order to get there. Perhaps he was talking about that, or perhaps he
was talking about the fact that the Pelosi-Nadler-Schiff bill really
doesn't fix the problem. In fact, look at the fact that there was
overt, politically motivated targeting that took place against the
President of the United States.
Now, look, I know--I know--those were different provisions under
title I of the Foreign Intelligence Surveillance Act. I get that. But
it is still part of the same legislative package. It is still part of
the same set of laws we are concerned about here. The only time where
we have the meaningful opportunity to take a deep breath and debate,
discuss, and possibly amend these provisions is when they are set to
expire.
I referred earlier to the USA FREEDOM Act, which I authored and
sponsored, along with my distinguished friend and colleague Senator
Leahy, the senior Senator from Vermont, back in 2015. That was brought
about as a result of and during the moment when we were approaching the
expiration of these very same provisions.
That is how we bring about reforms. In fact, we brought about some
reforms in that very legislation that were outside the narrow context
of the three expiring provisions in question. There is no rule, no law
etched in stone, written into the rules of the Senate, the
Constitution, or anything else that tells us that we cannot, that we
may not, that we should not edit or amend or reconsider any provision
outside the narrow expiring provisions that we are facing with FISA.
Quite to the contrary, we have a pattern and practice in the past that
has established that this is the way we do things.
Look, in fairness, I wish we debated and discussed and amended these
things a whole lot more because these laws are really messed up. We
ought to be reviewing them and updating them a lot more often--not
because the people implementing them are bad. Maybe some of them are. I
don't know them. They have done some bad things, some of them. I am
sure there are a lot of people who have access to these tools who are
hard-working, well-intentioned, well educated, and highly specialized.
I am even willing to assume most of them fit that description and
wouldn't ever knowingly, intentionally violate that law. But the fact
is, the law has been violated. There are very few instances that we
actually know about. Why? Well, because this whole thing operates under
the veil of secrecy.
Sunlight illuminates and it also disinfects, and the opposite happens
when a court--a court charged with the sacred responsibility of
determining and in some cases limiting the rights of the American
people, U.S. citizens--operates in secret.
I devoted my career, prior to coming to the Senate, to litigation,
specialized primarily in appellate litigation and dispositive motions
in Federal court. One of the great things about the U.S.

[[Page S1729]]

court system is the fact that, despite its flaws, I would put it up
against any system of its kind anywhere in the world. The reason is, it
is done, with very, very few, narrow, careful exceptions, under the
light of day. Rulings, decisions, and judgments are made public and are
subject to appeal, usually on multiple levels. That is not how the
Foreign Intelligence Surveillance Court operates. It operates in
secret.
So that is one of the reasons why we really ought to be reviewing and
updating this stuff more often, especially when we know there have been
abuses. We know from the sheer breadth of these statutes--some of which
were written, by the way, in the immediate wake of the 9/11 terrorist
attacks. As I mentioned earlier, I was not then a Member of this body.
I was not a Member of the Senate or of the House of Representatives. In
fact, I have never served over there. The Senate is the first place and
only place I have ever held elected office. I was an adult by then, and
I was licensed--a practicing attorney by then. I remember watching as
Congress was passing the PATRIOT Act and wondering why they were acting
so quickly--so hastily--to put so many words and so many pages into a
single bill.

I remember wondering whether they might, in the process of doing
that, trample over the fundamental rights guaranteed by the U.S.
Constitution without the American people knowing it. This has come to
fruition over time, and we have seen that it has been abused. We know
the certainty is--sure as we know the sun will come up tomorrow in the
East--that this will continue to happen. To what extent it continues to
happen or how long it is allowed to is, in many respects, up to us.
As I said earlier, governments are run by human beings. Human beings,
while redeemable, while generally good, are flawed, and they make
mistakes. But they are much more prone to make mistakes when they can
do so under cover of darkness, when they don't have to answer to
anybody. That is what is going on here. That is why I am so concerned
about this one. That is why I consider it--I guess I would say
disappointed.
It is disappointing that this body, some of the most talented people
I have ever had the pleasure of working with--100 Members, from 50
different States, each with his or her own story or his or her own
unique perspective--should be asked to succumb to a process that
doesn't allow us to have any input into a bill like this.
In this case, it arose in connection with the Pelosi-Nadler-Schiff
bill--a bill that I consider inadequate. It draws near to the
Constitution with its lips, metaphorically speaking, but its heart is
far from it. It pays loose homage to the notion that American citizens
have rights worth protecting. Yet its provisions are malleable and easy
to circumvent. It functions in much the same way as carbon monoxide
might operate in the human bloodstream, where the human body might
recognize something, mistaking it for oxygen. That, by the way, is--I
am told--why carbon monoxide is so deadly. Your body will tend to
recognize it mistakenly for O2 and in some ways prefer it to O2, thus,
starving the body of actual oxygen.
When we accept something that looks like it does the job--and it, in
fact, doesn't--it can do a lot of harm in the process. Why? Because the
American people and their elected Representatives in the Senate and the
House and in the White House then have the opportunity to say: Well, it
looks like that was fixed; we can go on to look at something else.
It is easy to do here because, after all, we have no end to problems
that we can be worrying about. Even if this problem disappeared--and
any of five others that are at the top of the list--we would still have
thousands of others we could worry about. That is exactly why it is
such a problem.
To have a bill like the Pelosi-Nadler-Schiff bill rammed down our
throats and to be told that we have to accept this, told that the
President of the United States, who himself has had his rights
violated, who himself was politically targeted under the FISA
framework--it is insulting to every American that after something like
that happens--we know it has happened; we know it continues to happen;
we know it will continue to happen--to tell us that we have to accept
the Pelosi-Nadler-Schiff response to that is simply insulting.
We shouldn't put up with it. President Trump shouldn't put up with
it, and the American people shouldn't. It is not just Republicans, and
it is not just Democrats. This is no respecter of persons or of
political parties. In fact, many of my best allies on this issue are,
and have been, Democrats. Democrats were pretty early to acknowledge
the flaws in the PATRIOT Act and in provisions of FISA.
Ever since I got here in 2011, I have been working across the aisle
with Senator Leahy, with Senator Durbin, and with others to try to find
solutions to these problems.
One of the things that has happened in the intervening years--this is
my 10th year in the Senate--is that this really has become a bipartisan
issue. It used to be me and a handful of Democrats and Senator Paul who
worried about this. We now have a broad coalition of Republicans and
Democrats who are concerned about this. They are worried about it
because if it can happen to the President, it can happen to anyone.
The American people have been influenced in so many ways by our own
history, and our own history extends back many centuries, not just on
this continent but in the United Kingdom. After all, it hasn't been
that many years since we became our own country. We existed as colonies
for almost the same period of time that we have existed as a free,
independent constitutional Republic.
In both sets of experiences and in experiences even predating the
American experiment in its entirety, we have seen there are good
reasons to require things like search warrants. When the government
wants to get information from you, when it wants to search through your
papers, your possessions, your personal effects, or when it wants to
seize you or your possessions, the government really needs to get a
warrant; it needs to establish probable cause supporting that warrant;
and it needs to outline with particularity the things that it wants to
search or seize. It needs to do so from an independent magistrate.
All of these things matter. They matter not just because they are in
the Fourth Amendment, not just because they were a good idea when they
were put in there in 1791, but because long before we became a country,
these were part of the rights of English subjects, part of the rights
that American colonists had as English subjects and that English
subjects had even back in England.
They, too, had a government that was run by mere mortals. The divine
right of Kings notwithstanding, the mark was also mortal, as were the
persons occupying positions in Parliament and officers elsewhere in
the government. That is why, from time to time, these rights would be
abused. We saw instances of English patriots--like John Wilkes--whose
rights were violated and who sought legal recourse after he was
subjected to unreasonable, warrantless, open-ended searches and
seizures.

John Wilkes became respected on both sides of the Atlantic because he
didn't put up with it, even though it cost him dearly in financial
terms, socially, even politically. Even though it caused him great
pain, he fought; he aggressively litigated what had happened to him.
That is one of the reasons he became a hero on both sides of the
Atlantic.
We look to heroes on both sides of the Atlantic--people like John
Wilkes who, notwithstanding the fact he was an English subject, not an
American, he understood the English Bill of Rights; he understood core
rights that were incorporated as if by reference by the Fourth
Amendment but that were preexisting long before then. In fact, things
like the warrant requirement of the Fourth Amendment are rights that
everyone should be entitled to in every country.
It violates logic and reason and principles of decency and kindness
to suggest that a person can be arrested or have his or her house or
effects searched or seized without due process of law and without a
validly issued warrant bearing particularity backed up by probable
cause.
What, then, does this have to do with FISA? It has everything to do
with FISA. It has a lot to do with it.

[[Page S1730]]

The Foreign Intelligence Surveillance Act, as the name suggests, was
created not to go after U.S. citizens but to go after foreign spies and
terrorists--not Americans. Sadly, over time, as a result of the
advocacy of people who weren't all that afraid of Big Government--the
advocacy and defense of people like Jim Comey and Robert Mueller--we
got a sort of morphing of FISA into something that wasn't focused
entirely, necessarily, anymore on foreign intelligence gathering, on
agents of a foreign power, on terrorists, but could be used even with
respect to U.S. citizens. This isn't right. In our hearts, we know it
is not right.
In our hearts, we should certainly know that it is not right when we
have the opportunity to consider some amendments--one of the amendments
that I have proposed--and a key part of the Lee-Leahy reform. We
provide something that I don't think would be shocking to any American
citizen. In fact, I think any American citizen would be shocked not by
the fact of its being introduced but by the fact that it is not already
law. It would say that if they want to go after an American--if they
know that the subject in question, the target of their investigation
is, in fact, an American--there ought to be added procedural
protections attached to their investigation of that person; that if
they get a court order under section 215 allowing them to search for
and gain access to any ``tangible things''--any of a whole category of
business records--they really ought to have to satisfy a different,
slightly higher standard than they would if the person were a spy from
a foreign country or a foreign terrorist or something like that. There
are certain rights that do inhere in the fact that you are an American.
That is not unreasonable. In fact, I am not sure I know any American
citizen outside of Washington, DC, who would even have a moment's pause
with that, other than to say: Why on Earth is that not already law?
I am also convinced that most Americans would respond to the beefed-
up amicus curiae provisions. Remember, ``amicus curiae'' is a Latin
term that means friend of the court. It refers to the fact that within
the Foreign Intelligence Surveillance Court, you have no jury, you have
no opposing counsel, you don't have a court reporter who is going to
report anything in public. You, instead, have total secrecy. Our FISA
provisions would expand our amicus curiae provisions, would expand the
circumstances in which the FISA Court must appoint a friend of the
court--or amicus curiae--just to argue the other side. This doesn't
even really limit their power. It just says: Let's bring somebody else
into the room--somebody else who can be trusted, who has security
clearance, but who can provide a different perspective.
Most Americans--in fact, I would say probably every American I know
outside of Washington, DC--would say there is nothing unreasonable
about that. In fact, what is unreasonable is the fact that that would
require an amendment--a change--to existing law.
Another one of the provisions that we want to amend deals with what
we call exculpatory evidence. When applying for a court order from the
FISA Court under section 215, the government should have a
responsibility to disclose evidence that would be exculpatory or would
show that the person being investigated might not have actually done
the thing they did or that they might have flawed information on their
hands.
We know that some of this has occurred or government agents have gone
before the Foreign Intelligence Surveillance Court and failed to
disclose meaningful material facts that, if known, would have at least
been material to the court and probably been determinative and resulted
in the court's unwillingness to issue the order in question. I don't
think I know anyone outside of this town who would say that is
unreasonable to request.
Senators Paul and Wyden have a few other amendments. One deals with
limiting the government's ability, through section 215, to gain access
to your browser history and another addressing the power of the
Attorney General to make some of these approvals. Those are amendments
that have been proposed by Senators Wyden and Daines.
Then we have an amendment from Senator Paul that would propose that
across the board in all of the different provisions of the Foreign
Intelligence Surveillance Act--whether it is 215 or 702 or title I or
some other provision--that if you are investigating a known American
citizen, you have a higher standard, and you probably need to go to a
regular court rather than a secret Foreign Intelligence Surveillance
Court which, in most respects, doesn't even meet the definition of
court.
In response to some of these, opponents--defenders of the deep
state--might well glibly conclude: Well, there is no reason for you to
impose a higher standard or for you to impose anything remotely
resembling probable cause because, after all, in other contexts, the
government can gain access to business records without showing probable
cause.
While this is true in many circumstances, first of all, it ignores
the fact that recent jurisprudence from the Supreme Court of the United
States--including from the Carpenter case--makes clear that just
because something has a business record maintained in the ordinary
course of business, that doesn't mean the person to whom it pertains
has no reasonable expectation of privacy in it. In some cases, it
doesn't.
We are no longer dealing with the old jurisprudence of Smith v.
Maryland, unadorned by more recent developments like Carpenter. Under
Smith, they were dealing with the collection from a pen register--the
collection of an old-style landline telephone that spat out the numbers
that were called and being called to and from the number of the line in
question. Modern business records disclose a heck of a lot more
personal detail than that. I suspect if Smith v. Maryland--the one
dealing with the pen register and the landline telephone business
records--if that were decided today, it might well have been decided
very differently today than it would have been then, but, certainly,
with respect to many categories of business records, there is a
reasonable expectation of privacy. There is some expectation of some
privacy buried within that, and we can't conclude otherwise.
Secondly, separate and apart from developments in the law that ought
to cause us to view with some suspicion the government's open-ended
ability with a mere subpoena to show relevance to and therefore access
to certain categories of business records--unlike those circumstances
where someone could go into a regular court, whether a civil or a
criminal proceeding, and get a subpoena based on a mere relevance
standard without probable cause--in those circumstances, at least,
there is more of an opportunity for somebody to respond. In many cases,
that somebody might be the custodian of the records of the business
entity in question, whether it is the mobile telephone services
operator, the internet service provider, or the owner of the car rental
facility, the storage unit facility--whatever it is, there is some
opportunity for that business enterprise to go into court to try to
quash the subpoena, to argue that the government doesn't, in fact, have
a need for it; that it doesn't need to produce it to defend its own
business interests, if not those also of its own customers.
In some circumstances, there is also an opportunity for the person in
question to be notified independently to object to or in other ways--
one way or another--respond to the government's desire to gain access
to those business records. By contrast, under the Foreign Intelligence
Surveillance Court, you don't have that ability. That is why we need
special protections here.
Look, it is not hard for the government to have to follow basic
principles of due process. It is not hard for the government to have to
show probable cause. In most circumstances, this can be done in a
manner of minutes. No one has ever demonstrated, to my satisfaction,
why--especially where, as in the case of my probable cause amendment,
with the requirement that they satisfy that standard only when they are
in the Foreign Intelligence Surveillance Court and they are going after
a record pertaining to a known U.S. person--it would still allow them
to go after other records pertaining to other people without that
knowledge and, if they didn't know someone was a U.S. person, they
wouldn't have to satisfy it.
But even that is apparently unacceptable to the self-proclaimed
masters

[[Page S1731]]

of the universe who now dominate the Senate and refuse utterly to
recognize the article VI-mandated expectation and constitutional
mandate of equal representation among the States in the Senate.
This is unacceptable. We have reached a point where we don't have the
expectation that we can rely on what comes out of committee because,
very often, what comes out of committee isn't even what is considered
here.
We had this Pelosi-Nadler-Schiff bill come out Tuesday night. It was
passed the next day by the House of Representatives. I understand why a
simple majority of the House of Representatives might well decide to
defer to Speaker Pelosi and Jerry Nadler and Adam Schiff. After all,
Pelosi and Nadler and Schiff, themselves, run a very substantial
portion of the Democratic Party's operations in the House of
Representatives. I understand why a whole lot of Members would like to
defer to them.
What I don't understand is, No. 1, why Republicans in the House of
Representatives would want to defer to Pelosi and Nadler and Schiff,
nor do I understand why--even if some Republicans in the House of
Representatives would foolishly defer to Pelosi and Nadler and Schiff--
why that in any way, shape, or form binds me or anyone else in this
body to do what Pelosi, Nadler, and Schiff decided to do. We are not a
rubberstamp. We are not a rubberstamp for the House of Representatives.
We are certainly not a rubberstamp for the deep state.

This gives me some hope, I suppose. This gives me some hope that,
given the fact that the President of the United States is willing to
acknowledge that FISA isn't perfect and that the Pelosi-Nadler-Schiff
bill passed by the House of Representatives yesterday--without having
gone through any terribly thorough process and without Members of the
House of Representatives having had access to it for more than about 24
hours when they passed it--the fact that the President of the United
States was willing to openly, publicly, today call into question the
wisdom of the Pelosi-Nadler-Schiff bill gives me some encouragement. It
gives me some encouragement that some of my colleagues here in the
Senate might see fit to claim the privileges attached to their election
certificate, to recognize that we are not all just functionaries of our
respective party leaders in the House and in the Senate; that we are
answerable to our own constituents to defend the Constitution in the
manner we deem appropriate and necessary under the circumstances.
I hope--I expect that this body will do the right thing. I think it
would be a shame--I think it is a shame to let three of these three
provisions expire and just let them hang out there with the uncertainty
that Senator Burr so thoughtfully pointed out will be the product of
these provisions expiring. We don't need to do that.
We have had years and years and years to address this, and we have
refused--we have deliberately declined; we have been recklessly
indifferent with respect to the need to reform these provisions. If not
us, who? If not now, when?
I have no interest in continuing to punt this thing over and over
again. This is like Charlie Brown going after that same football with
the same Lucy, who moves the darn football every time he gets close to
it. This isn't acceptable. I have great confidence in my colleagues
that a few of us--Republicans and Democrats alike--will come forward
and say: No, not on my watch, not anymore. This is not how the Senate
is going to operate.
This is just within a few days when we have seen a few unfortunate
things happen--things that are themselves symptoms of the same
underlying problem. I don't mean FISA, specifically. I am talking about
something much broader than FISA. I am talking about the deviation from
the norms of courtesy that have come to define this body over the
centuries.
My friend, the distinguished colleague from Louisiana, Senator
Kennedy, had an amendment he wanted considered and voted on last week
in connection with the Energy bill. I disagreed with that amendment. I
would have voted against it. In fact, I would have voted against it and
spoken against it on the floor. I really didn't like it, but he had an
amendment he wanted considered. He was shut out unfairly and
unreasonably. He was denied the opportunity to have that amendment
considered. He wasn't even given adequate notice of his procedural
rights that would come into play when the person--the Senator who had
introduced an amendment--came down to the floor to amend her previous
amendment and to use it as basically a managers' package, keeping
Senator Kennedy's amendment out of that package, thus effectively
denying him the opportunity to receive adequate consideration of his
own amendment. He wasn't given notice.
Because he wasn't given notice, he missed out on the opportunity to
do what he inevitably could have done and would have done, so long as
he could have come down here with 10 other Senators--a combined total
of 11 Senators--sustaining him for his procedural right to call for the
yeas and nays on the original amendment introduced by Senator
Murkowski. We could have voted on that amendment, and she wouldn't have
been able to insert that managers' package on her own without that
intervening call for the yeas and nays on her original amendment.
This is one of many examples that--while probably painfully boring to
the average American--should be deeply disturbing to any American who
knows about, who cares about, who yearns for the freedom that comes
from our representative government; that expects that people elected to
make laws will actually be participating in that process and not simply
dictated to by two leaders--one Republican and one Democratic--in each
House of Congress.
Yet another manifestation of that--one that has sadly become sort of
one installment in many series, like a set of sequel movies--is what
happens basically every time we have a spending bill.
To cite one example that occurred nearly 2 years ago, for many months
we had been waiting to see when we would have the opportunity to
debate, discuss, amend, and vote on a spending bill in the early months
of 2018. It would be the first real spending bill that we had the
opportunity to consider since the 45th President of the United States
was sworn in, in January of 2017. We had been told by our respective
party leaders in both Houses of Congress to wait for it; you will get
the chance to review it; you will get the chance to debate it and amend
it.
Then, one evening on a Wednesday in March of 2018, I received an
email. It was 8:37 p.m. That email was from Republican leadership
addressed to Republican Senators, saying: Attached is a spending bill
that we are going to be addressing.
I thought: Good. This is what we have been waiting for, for months. I
finally get to see it.
I opened it up. It was 2,232 pages long. It spent, as I recall, $1.2
or $1.3 trillion. I immediately distributed it to members of my staff
who worked through the night, splitting it up, figuring out what each
provision meant--recognizing that a 2,232 page Senate appropriations
bill doesn't read like a fast-paced novel. It doesn't read like a
newspaper. It is a very slow and cumbersome process, one that involves
countless cross-references to statutory provisions that wouldn't be
recognizable to most ordinary Americans, so it takes a lot of time to
review it.

My staff, after working on it through the night and through the next
day, was as shocked as I was to see that the House of Representatives
passed that bill--the same 2,232-page-long bill that most Members saw
for the first time at 8:37 p.m. the previous night. The House of
Representatives passed that bill before lunch the next day. The
Senate--this body--convened in the middle of the night the following
evening and passed it with not one amendment, not one change from one
Member of this body.
When we outsource things to the so-called four corners--the
Republican and Democratic leaders of both Houses of Congress--everybody
else gets shut out. This might be really good for you if you are from
one of those States represented by one of those four corners, but it is
really bad for everybody else. I don't mean that it is bad for the
Members; I mean every single person represented by someone else other
than those people.

[[Page S1732]]

At the end of the day, it is not their fault. It is not the fault of
the four corners so much as it is our fault. They are doing what they
have to do. They are doing the job the way they know how do it, the way
they have learned how to do it, the way we have trained them to do it,
sadly enough. We have let them do it that way, so they do. I am sure it
is not easy to do it that way, but it is probably less hard than every
other way out there. In that respect, I don't blame them for doing it
that way. I blame us.
Shame on us for passing that bill without any one of us having had
the opportunity to read the whole darned thing except for maybe four
Members. Between 435 Representatives and 100 Senators, you maybe had 4
Members total who knew what was in there and had control over it. Shame
on us for passing it anyway.
After those in the House of Representatives see for the first time
the Pelosi-Nadler-Schiff bill less than 24 hours before they vote on it
and pass it--a bill purporting to reform FISA while failing to actually
do so in a meaningful way--shame on them. If we pass it over here,
shame on us. The shame is especially acute if we don't even try, which
is what we are being asked to do here. We are being asked to defer, to
let somebody else do the legislating.
By the way, just as we were told when approaching that spending bill,
as with most other spending bills in the 9 years I have been here, that
we have to leave them to the experts--don't worry about this; this is
for the Appropriations Committee's chairman, for the subcommittee
chairmen, for the majority and minority leaders from the two Houses of
Congress and basically for no one else; leave it to the experts--we are
now being told to leave it to the experts here, which begs the
question: What meaningful role do we play? Have we really rendered
ourselves that insignificant that we are not even willing to defend our
own right to raise our own ideas and our own concerns with something as
profoundly significant and potentially impactful on the liberties of
every single American--old and young, White and Black, male and female
and of any station, rich or poor? These provisions--make no mistake--
have the potential to affect every single one of us. Shame on us if we
don't even try to make it better.
So I am not going to blame this one on Pelosi, Nadler, and Schiff.
They can choose to pass an unwise bill, if they want to, that doesn't
fix the problem, but I don't work for Pelosi or Nadler or Schiff. I
work for the people of Utah. I was elected by the voters in the
sovereign State of Utah, who expected me to come here and represent
them.
By the way, this is an issue that is neither liberal nor
conservative. It is neither Democratic nor Republican. This is not a
partisan issue. In fact, the amendments that I am talking about here
are bipartisan. This is simply an American issue. It is a
constitutional issue. It is an issue pertaining to and inextricably
intertwined with the basic dignity of the eternal human soul.
We can't pass this thing while pretending to be concerned about the
rights of the American people, not unless we at least try to pretend
like we are doing our job, not unless we at least try to pretend like
we are trying to make it better. Even if you don't think FISA has been
abused--if you do, by the way, that is absurdly, insanely naive, but I
respect your right to be wrong; I respect your right to agree with
Pelosi, Nadler, and Schiff on that front if that is how you feel--there
have to be other ways in which you might acknowledge you can make this
bill better.
Maybe you are somebody who trusts the government way too much. Maybe
you are somebody who thinks the government ought to be given more
power. Maybe you are somebody who trusts the government when it makes
allegations that somebody is an agent of a foreign power or is working
for an agent of a foreign power or is a terrorist or has had some
unkind thoughts toward another person. Even if you trust the government
that much, you shouldn't, and what you would be suggesting would be
unconstitutional. Yet, even if you were, then shame on you for not
wanting to make this bill even more aggressive toward giving the
government power.
It is simply too grand a proposition to suggest that it is mere
coincidence that the exact, magical combination of factors, of
provisions that should have been included in this law--in the minds of
every Member of the U.S. Senate--happened to materialize under the
umbrella of the Pelosi-Nadler-Schiff bill that was passed by the House
of Representatives yesterday. That is just absurd. I mean, come on. Are
you telling me that you can't find a single provision that you think
couldn't have been written better?
Some in that position of still opposing it might say: Well, yes, but
we have other things to do.
That is true. That is exactly why I am trying to provide 45
additional days for us to debate and discuss other issues first and
then to fix FISA later. I would be willing to cleanly reauthorize the
three expiring provisions so that nobody would have to deal with any
uncertainty and so that the American people would not have to be put in
jeopardy, neither their security nor their privacy, both of which are
part of the same cohesive, continuous whole. Neither one of them has to
be undermined. Yet that is what they insist we do. They insist that.
So the argument might go: We have other things to do.
Well, if you have other things to do, then let's punt this for 45
days, and let's just agree that we are going to vote on some things.
Yet that is too much for them to suggest.
To the extent their argument is that we are too busy to do this right
now, then I would ask this question: Why? What are you doing right now?
What better thing does any Member of the U.S. Senate have to do right
now, at this moment, at 4:54 p.m., than to stand up and defend and
debate the rights and the significance of the rights of the American
people?

I mean, I genuinely would like to know what is so compelling that
makes it so that we can't even debate these things right now. In fact,
in the time I have been speaking today, we could have easily voted on
these very same amendments. We could have brought them up. We could
have, and I would have agreed to have limited our debate to only a few
minutes apiece. As we saw during the impeachment trial a few weeks ago,
we are actually capable of casting votes and completing them within 6,
7, 8 minutes if we stand at attention or sit at our seats and listen as
our names are called and then vote. What, I would ask, is so
compelling? Do people have appointments for haircuts or manicures? Do
they have to go to the dog groomers'? I really would like to know what
is so compelling that makes it so we can't debate something as
fundamental as how to improve the safety and privacy of the American
people.
I close by pointing out something that my friend and distinguished
colleague, the senior Senator from North Carolina, said a few minutes
ago about the fact of his almost ensuring that the program at issue--
the program supported by the three expiring provisions--will go dark by
his objecting to my series of unanimous consent requests and about the
fact that, as a result of his objection, not only is he essentially
guaranteeing these programs will now go dark, but he is also
guaranteeing, when we come back in just a few days from now--because
whatever it is that we have to do in the next few days is apparently so
important, and I really would like to know what that is that is so
important that we can't do this--we are going to have to turn to this
when we could have gotten it done today instead of turning to other
pressing issues in front of us, issues dealing with emergencies created
by the coronavirus. We could have, should have, would have otherwise
been able to have turned to those things immediately. Instead, we will
be stuck on this for days. I mean, this can end up taking many days--a
week or so--if it is drawn out sufficiently.
The program goes dark, and we lose the opportunity to debate,
discuss, and enact other legislation--all because we have colleagues
who decide they know better. It is not so much that they know better
but that Representatives Pelosi, Nadler, and Schiff know better. It is
their bill. Everybody else just voted for it.
Now we are all asked to vote for it, and we are told to mind our own
business, to butt out, because our Big

[[Page S1733]]

Brother--the brooding, omnipresent Federal Government--knows better. It
can be trusted. Trust Big Brother. Sure, he is going to spy on you, but
his intentions are good. Sure, he is going to spy on you, but he is
really just hoping to go after the bad guys so that you don't have to
worry about the fact he is spying on your neighbor, on your
constituents, on innocent Americans.
Even if I am wrong--let's say, for a minute, that somehow I am
mistaken in concluding that any of this will ever be abused--you can't
really get around the fact that it has been abused. We know of
circumstances in which it has been. We know that the President of the
United States has himself been the target of abuse under this.
Yet set that aside for a minute. Even under the absurd proposition
that none of this will ever be abused again and that Pelosi and Nadler
and Schiff have somehow found the magical formula that will forever
guarantee these expiring provisions from being abused again, why
wouldn't you still want to make the bill better? Why would you be
willing to let those provisions go dark? Why would you be willing to
postpone the consideration of other pressing business before the U.S.
Senate? Is it really that important to shut out of debate your
opponents who happen to disagree with you? What does this say about the
next thing we will consider or the next thing after that?
This doesn't end well. We know it doesn't end well. It never, ever
works to push U.S. Senators to the point that they are told they are
not entitled to their own opinions; that to the extent they have them,
they may express them but only in a brief period of time; and that they
then have to run off and be good little boys and girls and let the
adults take over. No. I know that this is the way it has been working
for a while, but it is not going to anymore. It is not going to anymore
because the American people are demanding more. They are demanding
better. Things sometimes have to get a little worse before they get
better. Unfortunately, that is the position in which we now find
ourselves. They have gotten worse, but they have gotten worse in a way
that the American people are now noticing and are going to say: Don't
do this anymore. Don't lock us out of the process. Don't tell us we
don't matter. Don't tell us that our own elected Senators can't have a
voice and that they won't get a vote and that they cannot debate it.
The President of the United States has been targeted unethically,
unlawfully, unscrupulously by the deep state. We have the opportunity
to fix that, to make sure it doesn't happen to this President or any
future President or any U.S. citizen regardless of how rich or poor or
powerful or powerless. We must fix it. Shame on all of us if we don't.
Our oath to uphold, protect, and defend the Constitution of the United
States requires this. The American people deserve more, and they
deserve better, and we must provide it.
(Mrs. FISCHER assumed the Chair.)
The PRESIDING OFFICER (Mr. Braun). The Democratic leader.

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