[Congressional Record Volume 169, Number 203 (Monday, December 11, 2023)]
[Senate]
[Pages S5889-S5891]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   National Defense Authorization Act

  Mr. CORNYN. Mr. President, this week, at long last, the Senate will 
vote on the National Defense Authorization Act conference report.
  Each year, the Defense Authorization Act is how we demonstrate our 
support for the men and women in uniform--how they are paid, how they 
are equipped, how they are trained--and how our alliances are 
strengthened.
  Given the incredible number of threats that exist in today's world, 
preserving our military readiness has never been more important. There 
is a war in the Middle East, a war in Europe, and growing tensions in 
the Indo-Pacific. I was reading this morning there are more wars and 
conflicts today than there have been literally at almost any time in 
history. We live in a dangerous world, and maintaining our paramount 
strength and the deterrence that flows from that is absolutely 
imperative.
  That is why the Defense Authorization Act is so important. Each year, 
it allows us to take stock of the evolving threat landscape and to take 
corrective actions. This year's Defense bill prioritizes long-term 
strategic competition with China. It will help replenish our defense 
stockpiles from the weapons that we have been supplying Ukraine so that 
they can defend themselves against unjustified Russian aggression, and 
it will help us maintain our own state of readiness and the deterrent 
effect that goes along with it. This bill will also support 
modernization efforts across the board, from the nuclear triad to next-
generation weapons.
  This year's NDAA also authorizes military construction projects 
across the country, including $230 million for military construction 
projects in Texas alone. That includes $48 million for a cyber 
operations center and $20 million for a child development center at 
Joint Base San Antonio. It is really important to understand that in an 
All-Volunteer military, it is important not only to view this as 
service by just the member who wears the uniform but also the entire 
family. So trying to make sure that we take care of things like a child 
development center at Joint Base San Antonio ensures our ability to 
continue to recruit and retain highly qualified individuals to serve in 
our All-Volunteer military.
  This bill also has $20 million for barracks improvements and nearly 
$6 million for tactical equipment maintenance facilities at Fort 
Cavazos. It has $74 million for a new rail yard spur at Fort Bliss. 
This is so, should troops need to be deployed from Fort Bliss, they can 
almost immediately be loaded onto a rail and then sent to the port at 
Beaumont and other ports for disembarkation.
  And this is just scratching the surface. So, simply put, the NDAA 
will support our troops, strengthen our military readiness, and 
implement a raft of reforms to strengthen our national security.
  Included in this bill is the Intelligence Authorization Act, which 
includes the Sensible Classification Act that I introduced with Senator 
Warner earlier this year. It had become apparent to me that our 
classification system had been overused, and too many people were able 
to classify documents and keep them out of public view without any real 
rhyme or reason.
  This is particularly important given the nature of our Republic where 
the public has a right to know what their government is doing. Now, 
certainly--and this bill does protect sensitive classified information 
when it is important to our national security, but it is important to 
make sure that that classification process extends no further than is 
absolutely necessary and

[[Page S5890]]

that once the risk of public disclosure lapses, that that information 
be subject to declassification, which is what the Sensible 
Classification Act does.
  The classification of sensitive information gives us an invaluable 
edge when it comes to planning and preparing for threats all around the 
world, but there is a very thin line between strategic classification 
and excessive secrecy. Of course, political accountability is a 
critical part of self-government, and given the all-too-human, natural 
incentive to trumpet successes and hide mistakes, excessive secrecy 
undermines that accountability, which is essential to our system of 
government. If too much information is withheld from the public, it can 
sow distrust.
  Without transparency, there can be no accountability, and without 
accountability, there is no confidence that the government is acting in 
the best interest of the American people. It is obvious that there is a 
need to recalibrate the balance between the public's right to know and 
the need to protect and defend our Nation, and that is what this 
important provision of the National Defense Authorization Act does. It 
will increase accountability and oversight of the classification system 
by requiring training to promote sensible classification and efficient 
declassification. Declassification, as I indicated, after the need for 
secrecy goes away, will allow information to become public so we can 
learn from our history, and we can learn our history as well.

  This bill requires Federal Agencies to justify security clearances. 
Too many people have security clearances, which actually contribute to 
the overclassification of information. We need to limit security 
clearances and access to classified information to those who truly need 
it in order to keep our Nation safe. This legislation will help protect 
the integrity of America's classification system and help provide some 
additional trust in the government, I hope, and I am glad it will soon 
be heading to the President's desk for his signature.
  There is another important provision in the National Defense 
Authorization Act that is very important as well, and that is an 
extension of section 702 of the Foreign Intelligence Surveillance Act, 
which is set to expire at the end of this year unless it is extended. 
But we all know this law is not without some controversy.
  Still, the Foreign Intelligence Surveillance Act and section 702, in 
particular, is one of the most important and consequential laws that 
most Americans have never even heard of. This authority is the key to 
detecting and disrupting threats to our safety and our security. For 
example, information acquired through section 702 has helped identify 
threats to our own troops and thwart planned terrorist attacks both 
here at home and abroad.
  It has enabled the U.S. Government to stop components for weapons of 
mass destruction from reaching our foreign adversaries. It has helped 
us disrupt our adversaries' efforts to recruit spies on American soil 
or send their operatives to the United States once recruited overseas.
  It has also helped us understand and combat fentanyl trafficking, a 
drug which took 71,000 American lives last year alone.
  It has helped us identify foreign ransomware attacks on U.S. critical 
infrastructure and uncover war crimes and gruesome atrocities in places 
like Ukraine.
  For virtually every national security threat America faces, section 
702 is an essential asset. There is a reason why it is known as the 
crown jewel of America's intelligence-gathering capabilities. But as I 
said a moment ago, despite the importance of this law, this authority 
is not without some controversy, and unfortunately we have been unable 
to resolve all of that controversy into an agreed statute with 
appropriate reforms. So this temporary extension is important to give 
us the time and the space to be able to do that.
  In recent years, we have learned of some abuses of our intelligence 
authorities. But I want to be clear: The targeting of Americans is 
expressly prohibited in section 702. In fact, you can't target foreign 
adversaries on American soil--only overseas. This is very limited in 
its application. This authority allows the intelligence community and 
the Department of Justice to obtain intelligence on foreigners located 
outside the United States. It cannot be used to target U.S. citizens, 
whether on American soil or elsewhere.
  Now, where this issue gets thorny is because of the so-called 
incidental collection of the identity of Americans. So when a foreign 
national communicates with somebody in the United States--obviously, a 
U.S. person, defined as a legal permanent resident or a U.S. citizen--
there will be incidental collection of that communication between the 
foreigner and the American.
  As an example, let's say the intelligence community is using 702 to 
monitor the communications of a Hamas terrorist in Gaza who is believed 
to pose a danger to our national security. He is not on American soil, 
and he is not an American citizen, but he is using U.S.-based 
communication networks.
  One of the people that Hamas terrorists in our hypothetical is 
communicating with is an American on U.S. soil, and through a series of 
text messages, the intelligence community is able to discern that the 
two are planning an attack on civilians in New York City.
  This is a fairly typical sort of collection using this important 
authority, and you can understand why it is important to be able to 
retain that ability to discern these sorts of attacks and this sort of 
planning by our adversaries against us.
  So in this case, even though the American is not the target of the 
collection, the conversation would be visible because the person he is 
communicating with is a foreign target. But the intelligence community 
has a whole set of protocols and procedures to protect American 
citizens and U.S. persons even in this sort of incidental collection. 
There is a series of minimization procedures intended to limit the 
distribution of this information to make sure that it is not subject to 
abuse.
  So let's say that the FBI wants to get some more information about 
that U.S. citizen on American soil. They then have to go to the Foreign 
Intelligence Surveillance Court and demonstrate probable cause that 
that American citizen or U.S. person is a threat to U.S. public safety. 
And they have to get a warrant involving that U.S. citizen--U.S. 
person.
  So in this hypothetical terror plot, we are looking at a clear and 
imminent threat to people on American soil, and clearly that is 
something that the FBI would want to take a closer look at.
  Congress has designed this authority to provide intelligence 
professionals with timely and actionable intelligence in a way that 
protects the privacy and the rights of American citizens, but 
unfortunately we know that occasionally we will find abuse of those 
authorities. For example, in 2020 and early 2021, it was revealed that 
hundreds of thousands of improper searches had been made using the 702 
database.
  Now, I, like most other people I know, were outraged by these abuses, 
and the American people should be outraged when these authorities, as 
important as they are, are used improperly. This represents a violation 
of trust by some of our Nation's most powerful law enforcement 
Agencies.
  Given these abuses, some of our colleagues have suggested that we 
simply allow this authority to lapse, but the truth is, we can't cut 
off our nose to spite our face. Instead of nixing it, we need to fix 
it, and that is what we need the time to do that this temporary 
extension will provide.
  Losing section 702 authority would make the American people 
vulnerable to a range of threats. Instead of tossing this authority 
aside, we simply need to reform it. I say ``simply''--we need to reform 
it.
  Last week, FBI Director Christopher Wray testified before the Senate 
Judiciary Committee and talked about the abuses of 702 authority. He 
described these failures appropriately as ``unacceptable'' and spoke 
about the raft of reforms he has implemented to address the problem.
  The FBI has improved its systems, enhanced training, added oversight 
and approval requirements, and adopted new accountability measures. It 
has also launched a new Office of Internal Auditing that is focused 
specifically on FISA compliance. The data show that these reforms are 
actually working.

[[Page S5891]]

The Foreign Intelligence Surveillance Court found that agents complied 
with FISA requirements 98 percent of the time. And the number of 
searches of the 702 database fell by 95 percent from 2021 to 2022. 
Obviously, this is not 100 percent. It is not perfection. But these are 
commendable signs of progress.
  (Ms. BUTLER assumed the Chair.)
  Given the understandable concern here in Congress with reforming the 
way section 702 operates, primarily as it applies to American citizens, 
the NDAA gives us more time to get it right--something we have not had 
to this point. Once it is signed into law, Congress will have until 
April 19 to advance a longer term 702 reauthorization.
  In both the House and the Senate, Members are diligently working to 
reauthorize this authority in a way that protects the foundation of 
this intelligence-gathering tool while strengthening privacy 
protections for the American people.
  As always, we have to ensure these enhanced protections don't create 
new problems. We don't want to create inadvertently loopholes that 
could be exploited by our adversaries or hamper law enforcement's 
ability to hold criminals accountable.
  I hope we can build on the progress that has been made by codifying 
the FBI's changes and taking additional measures to protect the privacy 
of the American people.
  The information and dot-connecting that is made possible through 702 
is absolutely essential. It allows us to stay a step ahead of our 
adversaries and mitigate threats to the United States and the American 
people. It is an invaluable and irreplaceable component of our national 
security, and we need to be thoughtful and deliberate about the steps 
we take to preserve it and, more importantly, to reform it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.