[Congressional Record Volume 166, Number 89 (Tuesday, May 12, 2020)]
[Senate]
[Pages S2366-S2369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                  FISA

  Mr. LEE. Mr. President, the Constitution of the United States 
contains a number of constitutional protections for the citizens of our 
great Republic. Among the many provisions that it contains, in addition 
to the structural safeguards of federalism and the separation of 
powers, separating out power along two axes--one vertical, which we 
call federalism, and the other horizontal, which we call the separation 
of powers--the Constitution also includes a number of substantive 
restrictions. These are things that the government may not do, and 
there are penalties attached to the government's doing those things.
  Among those many protections can be found the provisions of the Bill 
of Rights, including the Fourth Amendment of the U.S. Constitution. The 
Fourth Amendment reminds us that it is our right--a fundamental, 
inalienable right--as citizens in a free republic, to be free from 
unreasonable searches and seizures, and that any warrants issued under 
government authority have to be backed by probable cause, and any 
probable cause-based warrant has to include with particularity a 
description of the places and persons to be searched and to be seized.
  This is a tradition that reaches not just back a couple of centuries, 
but it reaches back much farther than that and has its origins not only 
in our own country but in our mother country, in the United Kingdom. By 
the time John Wilkes was serving in Parliament in the 1760s, there had 
been a long-established tradition and understanding. In fact, there had 
been a series of laws enacted to make sure that warrants were not 
abused and to make sure the rights of the English subjects would not be 
infringed. Among other things, there was an understanding and a set of 
laws in place that would make clear that those conducting searches and 
seizures would be subject to a warrant requirement. In other words, 
they would lose any immunity that they would otherwise have as 
government officials if they didn't obtain a warrant and if that 
warrant were not valid.
  In 1763, the home of John Wilkes was searched aggressively. John 
Wilkes, while serving as a Member of Parliament, had become critical of 
the administration of King George, and he had participated in the 
publication of a weekly circular known as the North Briton. Although 
the North Briton was not one likely to engage in excessive, fawning 
praise of the reigning Monarch, it wasn't until the publication of 
North Briton No. 45 in 1763 that the administration of King George 
decided to go after John Wilkes. His home was searched, and it was 
searched pursuant to a general warrant.
  A general warrant was something that basically said, in that 
instance: Find out who had anything to do with the authorship and 
publication of North Briton No. 45. You see, North Briton No. 45 
accused, among other things, King George and those who served in his 
government of laying aggressive taxes on the people--taxes that they 
knew couldn't adequately be enforced or collected without intrusive 
measures that would involve kicking open people's doors, rummaging 
through their drawers, and doing things that couldn't be justified for 
the use of a warrant laid out with particularity.
  John Wilkes, in that circumstance, was arrested within a matter of a 
few weeks. He won his freedom, albeit on something of a technicality at 
the moment. He asserted parliamentary privilege and was released. 
Eventually, after becoming subjected to multiple searches using general 
warrants, Wilkes sued Lord Halifax and those who participated in the 
searches and seizures in question. He was able to obtain a large award, 
a large judgment consisting of money damages.
  John Wilkes, at the time, became famous, really, on both sides of the 
Atlantic. The name of John Wilkes was celebrated in taverns, saloons, 
and other public places in England and in the nascent United States of 
America, the colonies in North America that would later become the 
world's greatest Republic. John Wilkes' example was something that 
helped to solidify a long-standing legal tradition, one that would in 
time make its way into our Constitution through the Fourth Amendment.
  We have to remember that government is simply force. It is the 
organized collective official use of force. When John Wilkes and those 
who worked with him on the North Briton, culminating in North Briton 
No. 45, criticized the King too much, questioned excessively, in their 
judgment, the collection and imposition of taxes, the administration of 
King George decided they had gone too far and that it was time for John 
Wilkes to pay a price.
  Fortunately for John Wilkes and for people on both sides of the 
Atlantic, John Wilkes emerged victoriously. Today, we don't have 
general warrants, at least nothing masquerading under that title in the 
United States. The fact that we have a First Amendment is a test to his 
vigorous defense of the rights of English subjects.
  What we do have is something that ought to concern every American. We 
have the Foreign Intelligence Surveillance Act, which we know has been 
abused, and we have known for a long time is ripe for opportunities for 
abuse among government officials.
  In fact, what we have seen is that the current President of the 
United States has, himself, become the target of abuse under FISA. Back 
in 2016 when this started being abused and when we saw the emergence of 
things like Operation Crossfire Hurricane, you had the campaign of a 
man who would become the 45th President of the United States targeted 
and singled out, quite unfairly, using these practices--these 
procedures that were designed originally for use in detecting and 
thwarting the efforts of agents of foreign powers.
  As the name of the law implies, the Foreign Intelligence Surveillance 
Act is not something that is intended to go after American citizens. It 
is certainly not something that is intended to be used as a tool for 
bullying a Presidential candidate. Now that it has been used to bully 
and incorrectly surveil the 45th President of the United States, we 
need to do something about it. That is what the Lee-Leahy amendment 
does.

[[Page S2367]]

  First, for a bit of background on this particular law, we have three 
provisions of the Foreign Intelligence Surveillance Act that expired on 
March 15, 2020, just a few weeks ago. We have one provision known as 
section 215, another provision known as lone wolf, and another 
provision known as roving wiretaps.
  On March 16, the Senate passed a bill to reauthorize those provisions 
through May 30, 2020, which would give us a few weeks to debate and 
discuss reforms that need to happen under FISA. In order to pass this 
bill, the Senate entered into a unanimous consent agreement for votes 
on three amendments to the Pelosi-Nadler-Schiff bill passed by the 
House of Representatives a few weeks ago. One of those amendments is 
the one that I referred to a moment ago, the Lee-Leahy amendment, 
introduced by myself and Senator Leahy from Vermont.
  Unfortunately, however, the House of Representatives never passed 
that short-term extension measure, so that the three authorities that I 
mentioned--lone wolf, roving wiretaps, and 215--have been expired now 
for almost 2 months.
  Now, this is not for lack of trying on the part of us--the part of 
those of us who really want to see meaningful FISA reform. In fact, 
just a few days before these authorities were set to expire, I came 
down here to the Senate floor and I asked a series of unanimous consent 
requests to consider the House-passed reauthorization bill with a 
handful of relevant and, I believe, very necessary amendments. 
Unfortunately, my friend, a distinguished colleague, Senator Burr, 
objected.
  The Department of Justice Inspector General Horowitz's December 
report on Crossfire Hurricane proved what many of us reformers have 
been saying now for years. In my case, I have been working on this and 
trying to call out the dangers inherent in provisions of FISA now for a 
decade. But what the Horowitz report in December demonstrated was that 
FISA really is ripe for opportunities for abuse. Inspector General 
Horowitz not only found evidence that the FISA process was abused to 
target President Trump's campaign. He found evidence that basic 
procedures meant to protect the rights of U.S. persons--that is to say, 
U.S. citizens and lawful permanent residents of the United States--were 
not being followed.
  And so, just as we see that John Wilkes, through his publication of 
North Briton No. 45, solidified a preexisting set of rights available 
to all English subjects, we now see that President No. 45, Donald John 
Trump, has the opportunity to strengthen this right protected in our 
Fourth Amendment, harkening back to the example of John Wilkes in the 
publication of North Briton No. 45.
  My amendment with Senator Leahy would make reforms to applications 
for surveillance across the Foreign Intelligence Surveillance Act, 
including both section 215, the authority that recently expired, and 
under title I, which happens to be the authority that was abused in 
order to surveil President Trump's campaign.
  First, the amendment would strengthen the role of the friend-of-the-
court provisions--the amicus curiae provisions that we adopted in 2015 
in connection with the USA FREEDOM Act, which was introduced by Senator 
Leahy and myself back then. It would strength these amicus curiae or 
friend-of-the-court provisions and make them applicable in 
circumstances in which there are sensitivities inherently in play.
  Now, these amici curiae, or friends of the court, are people who, as 
contemplated under the proposed legislation, would primarily be experts 
and would have at least some knowledge or expertise of FISA and of 
privacy, civil liberties, secure communications, and other fields that 
are important to the FISA Court. They would also be people who would 
have clearance to review matters of concern from a national security 
standpoint.
  These amici are essential because, you see, the FISA Court is a 
secret court which, by its very design, operates on an ex parte basis, 
meaning without the presence of opposing counsel. You have government 
counsel and the judges themselves, and that is it.
  The friend-of-the-court provisions, the amici curiae I am describing, 
provide the opportunity for the FISA Court to hear from a fresh 
perspective--a neutral, trusted perspective--one that comes with some 
expertise in national security clearance but without presenting the 
threat to upending the national security investigations entrusted to 
the FISA Court.
  So that is why the amici are so necessary and so important. In the 
absence of opposing counsel, we have to strengthen the provisions that 
provide for these amici to ensure that there is some advocate somewhere 
in front of the court who is in a position to say: Wait a minute. What 
happens if we do this? Wait a minute. Is this really what the law 
authorizes? Wait a minute. Isn't there a constitutional concern 
implicated here, especially where they are dealing with the rights of 
American citizens.
  The December 2019 inspector general report on the surveillance of 
President Trump's campaign staffer Carter Page demonstrates the 
significant need for an outside expert legal advocate, especially when 
a FISA application involves a sensitive investigative matter, like the 
surveillance of a candidate for public office or an elected official or 
that official's staff.

  If the Lee-Leahy amendment were in statute, it would have required 
the FISA Court to appoint an amicus in the Carter Page case. If an 
amicus had been appointed in that case, would she have raised some of 
the issues that we now see regarding the credibility of the Steele 
dossier? Well, it is quite possible. In fact, I think it is quite 
likely. I think it is almost unimaginable that had there been an amicus 
curiae present in the FISA Court at that moment, somebody--likely, the 
amicus--would have said: Wait a minute. We have got a problem. Wait a 
minute. You have got evidence that is unreliable. Wait a minute. You 
have got huge credibility problems with the evidence that is backing up 
what you are asking for.
  Our amendment would require the FISA Court to appoint an amicus when 
an application involves ``sensitive investigative matter,'' such as the 
surveillance of candidates and elected officials or their staff, 
political organizations, religious organizations, prominent individuals 
within those organizations, and domestic news media.
  One of the arguments made by those who oppose FISA reform is that the 
appointment of an amicus would somehow slow down the surveillance and 
the FISA order application process, which, so the argument goes, could 
then harm our national security in those instances where there could be 
an imminent attack. Anytime this argument is made, it is important for 
the American people to listen and listen carefully. It is an important 
argument. It is not one that we want to treat lightly. At the same 
time, we have to remember the immense harm that has been inflicted, not 
only on our own society but elsewhere, when people simply suggest: 
Don't worry about this; it is a matter of national security. Don't 
worry about it; we have the experts covering it. Don't worry about it; 
your liberty is not to concern you.
  We know the risk. We know that we have to ask the difficult 
questions, and that is what we are doing here.
  In any event, the argument doesn't work here. The argument falls 
apart under its own weight here, you see, because our amendment allows 
for the FISA Court to have flexibility. In fact, the FISA Court, under 
the amendment, may decline to appoint an amicus if the court concludes 
it would be inappropriate to do so under the circumstances. All it has 
to do is make that finding.
  Is this too great an intrusion on the ability of the U.S. Government 
to collect information on U.S. citizens? I think not, especially as 
here we are dealing with this sensitive investigative matter, one 
involving an elected official or a candidate for elected office or 
religious officials or media organizations.
  We know in our hearts that these are areas where our foreign 
intelligence surveillance authority ought to give way, ought to at 
least recognize the rights of individual Americans.

[[Page S2368]]

  Our amendment also provides the amicus with more access to 
information regarding applications and requires the government to make 
available the supporting documentation underlying assertions made in 
applications if requested by the amicus or by the FISA Court itself.
  Now, this information is, to be sure, required by the FBI's internal 
operating procedures, including its so-called Woods procedures, to be 
maintained in a series of documents known collectively as the Woods 
files.
  But the FBI's failure to correctly maintain the supporting 
documentation or, in some cases, even to assemble it in the first 
place--the documentation underlying these FISA applications to surveil 
U.S. persons, that is--was itself the subject of the inspector 
general's most recent memorandum to FBI Director Christopher Wray. That 
memorandum proved, among other things, that the government's failure to 
provide all of the evidence, especially evidence that undermined the 
government's case before the FISA Court, when considering the 
application to surveil Trump campaign adviser Carter Page, was not an 
isolated accident. Quite to the contrary, after sampling 29 FBI 
applications for FISA surveillance of U.S. persons, the inspector 
general, Mr. Horowitz, found an average of 20 errors per application, 
with most applications having either missing or inadequate Woods files, 
leading the inspector general to conclude: ``We do not have confidence 
that the FBI has executed its Woods procedures in compliance with FBI 
policy.''
  This is absolutely unacceptable in any free republic, but especially 
in ours, with the existence of the Fourth Amendment.
  We are not talking about the failure to create or maintain some 
obsolete piece of paperwork just for the sake of having it. No, no, no, 
this is much more than that. And we are not talking here about 
exculpatory evidence being withheld as to suspected foreign terrorists. 
These are applications to surveil U.S. citizens and lawful permanent 
residents, who themselves have constitutional rights and also have 
an expectation that their government will not secretly spy on them, in 
violation of that which is rightfully theirs under the Constitution of 
the United States.

  So you can't look at this and credibly, reliably, say: It is OK. Let 
the FBI take care of it. The FBI is working on it.
  We have been hearing that for years. I have been hearing that for 10 
years--the entire decade that I have been at this business. And what 
has happened? Well, what has happened is that we have seen time and 
again that there have been abuses of the very sort that many of us have 
been predicting for a long time would inevitably and repeatedly arise 
in the absence of reform.
  This doesn't require us to undertake a dismal view of humanity. No, 
it is not that at all. It is simply that government is best understood 
as the organized, official collective use of force, officially 
sanctioned as part of a government. And, as James Madison explained in 
Federalist 51, if men were angels we wouldn't need government. If we 
had access to angels to run our government, we wouldn't need rules 
about government.
  But we are not angels, and we don't have access to them. So, instead, 
we have to rely on humans. Humans are flawed. They make mistakes, and 
they also sometimes decide for nefarious or political or other reasons 
to flout the law--hence the need for the night watchman, hence the need 
for rules that restricts their ability to do that.
  So I find it entirely unsatisfactory when people say: Just let the 
FBI deal with this, because, first of all, they haven't dealt with it. 
They haven't dealt with it even as abuses have become more and more 
known under various provisions of FISA and even as we are still coming 
to terms with language that was adopted nearly two decades ago that 
itself was overly broad at the time and has been abused since then.
  No, we are not going to just trust that an organization that is able 
to operate entirely in secret, with the benefit of protection of 
national security laws, with the benefit of over-classification of 
documents--we are not simply going to assume lightly that they are 
going to fix it, because they haven't and because they won't and 
because they don't want to.
  I understand why they might not want to. All of us can appreciate 
that when we do a job, if somebody else adds requirements to that job, 
we might be naturally resistant to it. But that doesn't mean that we 
don't need to do it here. That doesn't mean that our oath to uphold, 
protect, and defend the Constitution of the United States doesn't 
compel us to do so here.
  We know that the FBI is not going to fix it because the FBI has in 
the past adopted procedures designed to prevent this kind of 
manipulation, this kind of chicanery from arising, including, most 
notably, the Woods procedures. Yet we know that the Woods procedures 
have been openly flouted.
  So can we walk away from this and pretend that the 45th President of 
the United States didn't have his own rights abused, his own campaign 
surveilled abusively by the FBI itself? No, we can't. And I don't know 
anyone--Democrat or Republican, liberal or conservative or libertarian 
or something else--who could look at that and say: Yes, that makes a 
lot of sense. It makes a lot of sense that we should just leave 
unfettered, unreviewable discretion in the hands of those who are able 
to operate entirely in secret.
  The Lee-Leahy amendment would require that the government turn over 
to the FISA Court any and all material information in its position, 
including information that might undermine its case as part of the FISA 
application. As I said earlier, this information would be made 
available to the amicus curiae upon request.
  As an added protection, our amendment would require any Federal 
officer filing an application for electronic surveillance or physical 
search under FISA to certify that the officer has collected and 
reviewed, for accuracy and for completeness, supporting documentation 
for each factual assertion contained in the application.
  If we are going to require people to go to the FISA Court at all to 
get an order, if we are going to call it a court, ought we not require 
that such evidence be assembled and at least be made available to those 
whose job it is to make sure that the job is actually being done?
  The Lee-Leahy amendment also requires these officers to certify in 
each application that they have employed accuracy procedures put in 
place by the Attorney General and the FISA Court to confirm this 
certification before issuing an order.
  Finally, the Lee-Leahy amendment requires the Department of Justice 
inspector general to file an annual report regarding the accuracy of 
FISA applications and the Department of Justice's compliance with its 
requirements to disclose any and all material evidence that might 
undermine their case.
  Now, while I have a lot of ideas for reform, many of which are 
included in the USA FREEDOM Reauthorization Act that Senator Leahy and 
I introduced a couple of months ago, we were limited in this 
circumstance for our purposes to just one amendment to the Pelosi-
Nadler-Schiff bill. That is this amendment, the one that I have been 
describing, the Lee-Leahy amendment.
  We believe that our amendment is a very measured approach to enacting 
those reforms that we believe to be most essential to protecting the 
rights and the privacy of Americans from a system that, by its very 
nature and, in some instances, by design, is ripe with opportunities 
for abuse. It is not perfect, but it will go a long way, if we pass it, 
toward forestalling this kind of abuse.
  We have to remember that although we live in the greatest Republic 
ever known to human beings and although our rights are, by and large, 
respected in this country, we are by no means immune to the type of 
abuse that can take hold in any system of government, especially a 
system of government with a whole lot of resources at its disposal to 
gather information, including efforts to gather information on that 
government's own citizenry.
  If we remember, about 45 years ago, there was a committee put 
together, headed by a Senator from Idaho named Frank Church, that 
looked at abuses of telephone surveillance by the government and 
concluded that in basically every administration dating back to the 
rise of the common usage of the telephone, our intelligence-gathering

[[Page S2369]]

resources within the United States had been utilized to engage in what 
was essentially political espionage.
  Since the late 1970s when the Church Committee issued its report, we 
have had exponential growth in the ability of government and the 
ability of everyone else, for that matter, to obtain and process data 
and information. In most ways, it has been a real blessing. It is a 
great thing.
  It is also important for us to keep in mind the extent to which our 
papers and effects are no longer found exclusively within physical file 
cabinet files within someone's home or office. In many instances, they 
can be found elsewhere in electronic form.
  Our security and our liberty need not and ought never to be viewed as 
irreconcilably at odds with each other. Many civil liberties and 
privacy experts joined together in an effort known as the PCLOB a few 
years ago--the Privacy and Civil Liberties Oversight Board--and 
concluded a few years ago that our privacy and our liberty are not at 
odds with each other. In fact, our privacy is part of our liberty. We 
are not truly free unless our personal effects and our private 
information can belong to us and not simply be open game for the 
government.
  It is sad and tragic that in order for this to come to light, it took 
an assault on freedom so bold and so shameless as to loop in the 
President of the United States. With this and other revelations that 
have come to light in recent days and weeks and months and over the 
last few years, we can't forget that these entities are still run by 
human beings with their own political views, with their own agendas. 
And in some cases, unfortunately--rare cases, I hope--people who are 
charged with protecting the people and their liberty may in some cases 
be inclined to be at odds with it.
  It is unfortunate that the 45th President of the United States has 
had, quite tragically, to become the victim of this. But I ask the 
question, what if your information were on the line? What if you had 
been targeted--maybe for political reasons, maybe for reasons that had 
nothing to do with politics, maybe for reasons that just had to deal 
with a personal vendetta someone had against any American. It is far 
less likely that the abuse would ever have come to light.
  In this circumstance, it did come to light. We can't ignore it, nor 
can we pretend that it couldn't happen to any one of us--and I don't 
mean as Members of the U.S. Senate; I just mean as Americans. In fact, 
each and every one of us is less capable of standing up to this and 
less likely to discover the abuse in the first instance. Not all of us 
happen to be the President of the United States.
  I am grateful that President Donald J. Trump has been willing to 
speak truth to power and has been willing to call out the flagrant 
abuse of FISA and of other procedures within the government. It is our 
obligation, it is our solemn duty, and it is my pleasure to do 
something about it. The Lee-Leahy amendment does something about it, 
and I invite all of my colleagues to join me in supporting it.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hyde-Smith). Without objection, it is so 
ordered.
  Mr. INHOFE. Madam President, I ask unanimous consent that I use 
whatever time I shall consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.