[Congressional Record Volume 169, Number 205 (Wednesday, December 13, 2023)]
[Senate]
[Pages S5946-S5956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LEGISLATIVE SESSION
______
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2024--CONFERENCE
REPORT--Continued
The PRESIDING OFFICER. The Senate will now resume legislative
session.
Mr. MANCHIN. 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. MERKLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Butler). Without objection, it is so
ordered.
The Senator from Oregon.
TSA Facial Recognition
Mr. MERKLEY. Madam President, a question: Do we want a government
surveillance state in the United States of America?
Movies like ``Gattaca,'' where citizens are tracked through their
DNA, or ``Minority Report,'' where citizens are tracked through their
retina scan, warn us what can happen under a fictional government
surveillance state. But we don't need to depend upon movies and fiction
to understand what a surveillance state means because we have, right
now, a real-life government surveillance state in China. China's
government surveillance state already tracks more than 1 million Uighur
citizens through facial recognition.
As cochair of the Congressional-Executive Commission on China, I have
had a front-row seat on how China uses facial recognition technology to
track and to enslave a million people. And I have watched with some
alarm as the U.S. Government has begun to expand its own use of facial
recognition technology tied to databases, especially because there has
never been a debate, let alone a vote, here in the U.S. Senate about
whether or not we want to have a national facial recognition system
controlled by the government. We have never had a debate related to the
risks that that involves in terms of its potential threat to our
freedom and to our privacy.
So I want to force there to be such a debate. I want to force there
to be a vote. A government with power to track us everywhere we go is a
real threat to privacy, a real threat to freedom. That is why Senator
John Kennedy and I have introduced the bipartisan Traveler Privacy
Protection Act to curtail the use of facial recognition technology by
TSA.
Step-by-step, slowly, steadily, TSA is expanding its system of facial
recognition technology. And let's just take a look at what that looks
like. In 2018, TSA began with a 3-week test of facial recognition where
passenger photos and data were deleted immediately. Then, in 2019, they
did a second test, but they allowed the photos and data to be stored
for up to 6 months. By 2020, we are talking about the ability by the
TSA to hold photos and data for up to 2 years. In 2021, we are now
talking about TSA beginning to match facial recognition photos against
the Customs and Border Protection database--all of these steps taking
place really with no recognition by Americans that this program is
expanding in this fashion, certainly no discussion here in the Senate
committees and Senate floor about this steady expansion. Ultimately,
what the TSA is aiming at is a world in which your face is your
driver's license; your face is your passport. Well, that means a
massive database and massive tracking of Americans wherever they go.
This summer, the TSA announced plans to expand from the current 25
airports where facial recognition technology is used to 430 airports
across the country. So no matter where you live, this system of
tracking citizens is coming to your community.
In fact, as you see the geographic expansion, we are also seeing that
technological expansion. TSA Administrator David Pekoske said in April
of this year, a few months ago, at the South by Southwest Conference:
Eventually we will get to the point [where] we will require
biometrics across the board.
What he is really saying here is, right now, we are allowing some
opt-out from the use of facial photos at the airport--and I will have
more to say about that in a moment. It is very difficult to exercise
that opt-out, but in the near future, the opt-out is going to go away.
Everyone will have to be scanned everywhere you go in the TSA system.
Requiring facial recognition should set off alarm bells for everyone.
Once you have built the infrastructure of the database and the
cameras, then it is easy and tempting for the government to use that
infrastructure to track you in the name of security. I am reminded of
Benjamin Franklin's warning that ``those who would give up essential
Liberty to purchase temporary Safety, deserve neither Liberty nor
Safety.''
I know there will always be a story about some bad guy hiding out in
some town somewhere who gets caught on a camera and might not have
gotten caught otherwise, but allowing the government to know where you
are at all times is an enormous price to pay. It is a price paid in the
loss of privacy and the loss of freedom. And that is why it needs to be
debated, and that is why we need to put a brake on this system until we
consciously lay out what we consider acceptable for the use of such
technologies. We really don't know how a future government will use or
misuse this technology, but we do know how it is misused in nations
like China.
You know, passengers, as you go to the airport, are confronting a
long line in which they see a lot of signs that I will show you in a
moment. But what they don't understand is when they get to the front of
the line, the TSA is going to go like this, directing you to stand in
front of the camera. Many of us in this Chamber have experienced that
because when you travel through Reagan National, that is exactly what
happens every day, every week.
I was pretty surprised to see that show up with no signage saying
that this was an opt-in program, which is the way the TSA had
originally described it. But they changed it to an opt-out program,
again, without clear debate or laws here in our Chamber being discussed
or being passed.
As you stand in the line--these are pictures I have taken in previous
trips through Reagan National. The things they want you to know have
these big signs like this: ``You are entering an
[[Page S5947]]
area where all persons and property are subject to additional
screening.'' OK. Good to know. You might trigger an alarm or have
additional screening or, hey, you got any questions or comments? Here
is how you reach us for live customer service assistance--or firearms,
including shotgun chokes, are not allowed through security checkpoints.
All firearms must be declared.
That is fine. These are things that they want you to know. There are
actually seven different signs at Reagan National as you stand in line,
but there is no sign saying that when you get to the TSA checkout
point, you have an option to check out--to opt out of the program--no
clear signs like this.
So I brought the head of TSA in and had a conversation about the fact
that they are not informing citizens, and as a result of that, there is
now some information--some information but not adequate information.
Now, here is a chart or a picture that I took. As you are directed
here to the checkout, and you can see the driver's license--the sign is
set sideways so nobody can read it until the moment that you are
stepping up to the carousel. By then, you are all focused on doing what
the guard is telling you to do, what the TSA agent is telling you to
do.
I found this a little humorous that they put out these signs--after I
gave them a hard time--but they placed them deliberately so people
couldn't see them.
Let's take a look at what that old sign says: ``Self-service
biometric identity verification technology paving the path for a safe
and secure travel experience.''
Well, these type of signs are very different than the signs I just
showed you. They are very detailed, and this is only when you actually
reach the kiosk. Nobody has the chance to read this entire thing and
realize what it is about. It doesn't say ``facial recognition'' at the
top. It doesn't say: ``Remember, you have two options here'' in nice
big print.
You have embedded in this--there are some details. Right down here it
says ``Photo capture is optional,'' but you have to read through this
and understand what it is talking about. Meanwhile, TSA is saying: Get
in front of the camera. So that is really not a sufficient way of
educating citizens and having a true opt-out or an opt-in program.
Now they have got a new sign. Now, this one also doesn't say ``facial
recognition.'' And if you look down here to see what is highlighted:
``Use your physical ID. Use your eligible digital ID.''
These are not about opting out. No, they are about how to actually
use facial ID. But there is a little tag down here at the bottom: ``If
you decide to opt out of facial matching, notify the officer.'' Well,
nobody, in the 2 seconds or 3 seconds you have as they motion you to
step forward, where you can actually see this sign, is going to read
this whole document and go: Oh, what is this all about--hidden at the
bottom?
I mean, it is completely clear the TSA has no intention of actually
having an opt-in program, and they have no intention of truly having an
opt-out program because they are hiding all the information about the
fact that you have that right.
Now, because of my complaints to the TSA--because of my advocacy--I
said: You know, you need to have signs on the way in that alert people,
and then you need to have a sign by the camera. Well, they didn't do
any signs on the way in, but they did do a little sign right by the
camera at the last second. It says: ``You may opt out of facial ID
validation,'' and in smaller print, ``Please inform the TSA officer if
you do not want the camera used. See additional information on the blue
signs nearby.'' So they refer you over to read a more complex document.
Again, none of this makes sense if you want to give people real
information because this is the last second as the officer is pointing
to you to step in front of the camera.
The sign looks pretty large in this chart, but it is actually a
little kind of 5 by 8 sign, again, to my point.
This sign also says: ``Your photo and limited biographic information
will be deleted after your transaction.'' Well, if you hear that--
``Your photo and limited biographic information will be deleted after
your transaction''--it sounds like it will be deleted, like,
immediately.
But what is TSA's real policy? That they can retain your data for 2
years. That is a big difference between a sign that implies that it is
deleted immediately and the fact that they are going to keep your data
in a database for up to 2 years.
It is outrageous that TSA continues to shuttle people through its
facial recognition system and not tell people, clearly, it is optional
and not tell people they are holding onto their biometric data. Worse,
the agents are not at all clear about the rules of opting out, because
I have repeatedly opted out and have tried to opt out.
And so I have the experiences to share with you. Here is what
happens:
You get 4 or 5 feet out, waiting for the next person to leave,
because there is a line that says: Don't go there. Then they mushroom
you forward. The TSA immediately points to the camera, and on the far
side of the camera is where you have to put your driver's license in,
forcing you to step in front of the camera.
So you say: I am choosing to opt out, Officer.
And they say: Get in front of the camera--because they are not really
familiar with what that means because nobody is informed; so nobody is
doing it.
Then you say: No. There is an option to opt out, and I am choosing to
opt out.
Then you have to explain it to the TSA agent: So I am giving you my
driver's license, and I will even put it into that machine, but I am
not stepping in front of the camera, which means you have to reach
under the machine like this and, like, slide it in there. Then you have
got to take it out, bring it back, hand it to the officer. They look at
the photo on the screen that has been taken of your driver's license.
They compare it to your face--all very good. Or they say: You stand
over there.
So twice, of the several times I have attempted to opt out, I have
been directed to stand over there, in a rather hostile fashion, while
they have gone and found somebody to address the fact that this
passenger is refusing to do what they say and step in front of the
camera. Eventually, it gets resolved, but the first time, it included:
And you, sir, are going to hold everyone up at this airport.
Well, thank you very much. It is supposed to be possible just to opt
out and hand you my driver's license.
Stand over there, sir. No, don't move--all of which I would be happy
to share with you on a recording because it is legal to take photos
when you are in line at the TSA.
This is not OK. The massive expansion of state surveillance, which
will create a national surveillance system here in America, with the
potential for great abuse by the government, has to be debated here,
has to be addressed here in the Senate Chamber. We need to put a halt
on this expansion of this technology, and we need to do it soon.
Let me be clear: The legislation that Senator John Kennedy and I are
proposing would not affect Customs and Border Protection. So don't tell
me that some terrorists who will come into the country would have been
caught because of facial recognition technology but for our not having
it. What I am really talking about is creating a surveillance state--or
stopping a surveillance state--inside the United States of America, not
at the borders. What the legislation would do is guarantee that you
could move about freely without being tracked everywhere by the
government.
Let me also note that the TSA has been refusing to share their error
rate from their initial studies. In many facial recognition systems,
there is a lot higher error rate for people with brown or black skin,
but they won't share that data.
They just say: Oh, it is accurate.
They say: It only has a 3-percent error rate.
Well, I would sure like to see the breakdown on that. A 3-percent
error rate means they have 68,000 people a day who are erroneously
addressed through this computer system.
Then they try to say: Well, this will be a more efficient system. It
will be faster.
They still have to have the agent right there. I have watched it go
faster
[[Page S5948]]
for individuals--TSA agents--who are both grabbing the driver's license
and then comparing it to the face than it does in the photo system.
So they will make arguments, but I think we need to thoroughly
examine those arguments. They will make arguments about a slight
increase in security, and they will make arguments about a slight
increase in efficiency--but at what cost to our privacy? At what cost
to our freedom? Are those arguments actually even valid? They won't
release the data.
I don't want America to be a surveillance state. I don't want it to
be like the surveillance state with DNA portrayed in ``Gattaca.'' I
don't want it to be like the surveillance state displayed with irises
in the ``Minority Report'' movie. I don't want it to become an American
surveillance state like China, using facial recognition. In China, that
facial recognition is used to track and control their citizens,
including the enslavement of more than a million ethnic Uighurs. I
don't want America to become a surveillance state because we ignore the
issue and let it just gradually expand, never debating it and never
voting on it.
So I urge my colleagues--and Senator Kennedy and I will be
encouraging folks--to join us on this bill, the Traveler Privacy
Protection Act. Let's say no to this steady expansion without a debate
and without a vote--the steady expansion of the American Government
surveillance state.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous Consent Request--Executive Calendar
Mr. DURBIN. Madam President, I come to the floor again to discuss two
U.S. attorney nominations that have been on the calendar for weeks:
Rebecca Lutzko, nominated to be U.S. attorney for the Northern District
of Ohio, and April Perry, nominated to serve as U.S. attorney for the
Northern District of Illinois.
On several previous occasions, I have had to come to the floor to
request unanimous consent for the Senate to take up these
noncontroversial, bipartisan nominations and confirm these law
enforcement nominees. Each time I have come to the floor, asking for
this, the junior Senator from Ohio has objected. He says that he ran
for office to ``[f]ight the criminals--not the cops.'' It turns out to
be a hollow promise when he is holding up criminal prosecutors, at a
professional level, in two major parts of the United States--one of
them in his own State.
Our communities desperately need top Federal prosecutors in place.
Interested in stopping fentanyl? I am. Thousands of people are dying.
Well, who is going to prosecute those cases? The U.S. attorneys will--
93 of them across the United States--but you can't prosecute the case
if you don't have the U.S. attorney there to lead the effort and to
coordinate the effort with other branches of government. You can have
an interim in there, and I am sure that person will do as good a job as
he can, but it isn't like having the permanent person that you need as
a U.S. attorney. Here we have two who have been chosen by the junior
Senator from Ohio to stop--one from his own State.
U.S. attorneys lead the Nation's efforts to prosecute violent
criminals and protect our communities from violence, terrorism, and
more. The U.S. attorney for the Northern District of Ohio is no
exception. While the entire Nation has been impacted by the opioid
epidemic, Ohio has been hit harder than almost any other State. Over
the course of 1 year--from April 2022 to April 2023--more than 5,000
Ohioans lost their lives to drug overdoses. That number is shocking--
5,000 in 1 year. On average, every day, 14 Ohio families lose a loved
one to drugs.
The U.S. attorney for the Northern District of Ohio could, as we
speak, be tackling this drug crisis with community stakeholders, like
the Toledo Metro Drug Task Force. Instead, her nomination has been
languishing on the calendar here in the Senate for months because one
Senator, the junior Senator from Ohio, has promised, I guess, former
President Donald Trump that he would do his best to get even with the
Department of Justice for even considering holding Donald Trump
responsible for his conduct. It would be laughable if it weren't so
damned dangerous.
Because Senator Vance is not just harming my State and is not just
harming his own State, the precedent he is setting will undermine
public safety across the entire Nation for years to come.
As I have stated before, the Senate has a long history of confirming
U.S. attorneys by unanimous consent. We don't even have rollcall votes.
When it came time for the Trump U.S. attorneys, no votes were required.
Democrats--in control for most of that period of time--said to the
President and his administration: You pick the U.S. attorneys. That is
your right as President. The junior Senator from Ohio does not agree
with that.
Before President Biden took office, the last time the Senate required
a rollcall vote on a U.S. attorney was in 1975. At the beginning of a
new Presidential administration, it is customary for all the U.S.
attorneys to resign en masse and for the new President to select their
replacements. That is the ordinary course of business. As we have
learned in the Senate, you can change that if you want to and run the
risk of not bringing someone new to the position if it is that
important. That is why, during the Trump administration, 85 of
President Trump's U.S. attorney nominees moved through the Judiciary
Committee.
Senate Democrats--Democrats--allowed Trump's nominees--every single
one of them--to be confirmed by unanimous consent, many of whom we
would not have chosen personally, but that was the tradition that we
held to. It would not have been realistic to force a floor time debate
on every single one of those nominees and still expect 85 U.S.
attorneys to be confirmed and be on the job in a timely manner.
That tradition and the logic behind it obviously escapes the junior
Senator from Ohio. So we respected our colleagues, and we respected the
need for Senate-confirmed leadership in U.S. Attorney's Offices. The
Democrats put public safety and the needs of law enforcement ahead of
the obvious politics of the day. But now the Senator from Ohio is
setting an unfortunate standard as he is putting us on a path of
requiring cloture and confirmation votes for every U.S. attorney
nominee--something everyone here knows is not feasible.
Does this sound reminiscent of another Republican strategy from
another Republican Senator in the State of Alabama? He held up, I
believe, 400 military promotions for months at a time. He was angry
about a new policy in the Department of Defense after the Dobbs
decision. To protest that, he literally put a brick on 400 nominees for
promotion in the U.S. military. Finally--finally--2 weeks ago, he
relented. We still have 11 to take care of.
To think of the hardship caused to those individuals and the fact
that we didn't have leadership when we should have had for our national
security is an indication to me of how this strategy of ``just stop the
train; I want the world to get off'' is not a sensible one.
So what will happen in the future when, inevitably, dozens of U.S.
attorneys are left to function without Senate-confirmed leadership?
Public safety will suffer, and we are setting a terrible precedent. To
get angry with the administration and to try to require a rollcall
vote--at least one, maybe two--on each nominee is just unnecessary; it
is not logical, and it doesn't follow the precedent of the Senate--all
because one Senator has decided that, because Donald Trump is facing
indictments and prosecution in various parts of the United States, he
wants to protest by hurting the selection of U.S. attorneys in his own
home State of Ohio and the State of Illinois.
We have before us two highly qualified nominees to lead their
respective U.S. Attorney's Offices. Until we confirm them, law
enforcement agencies in both Illinois and Ohio will be held back from
doing their best to fight crime and to end our drug crisis in this
country.
When the Senator from Ohio was asked why he was doing this and what
his goal was, he was very explicit:
[[Page S5949]]
I will hold all DOJ nominations. . . . We will grind [the
Justice Department] to a halt.
June 13, this year.
I can tell you, we just had a hearing--as you know, as a member of
the committee--with the Director of the FBI. He talked to us about the
battles he is fighting, the terrorism threats across America since the
October 7 attack in Israel. He sees blinking lights, he says, in every
direction of danger to the United States.
Are we going to have the Department of Justice on the job, with
professionals doing the best they can, or are we going to let it grind
to a halt? ``Grind to a halt''--those were his words. I hope we have
some common sense in this situation, and I hope we do it right now.
Madam President, I ask unanimous consent that at a time to be
determined by the majority leader, in consultation with the Republican
leader, the Senate proceed to executive session to consider the
following nominations: Calendar Nos. 314 and 315; that there be 2
minutes for debate equally divided in the usual form on each
nomination; that upon the use or yielding back of time, the Senate
proceed to vote without intervening action or debate on the nominations
in the order listed; that the motions to reconsider be considered made
and laid upon the table with no intervening action or debate; that no
further motions be in order; and that the President be immediately
notified of the Senate's action and the Senate then resume legislative
session.
The PRESIDING OFFICER. Is there objection?
The Senator from Ohio.
Mr. VANCE. Madam President, reserving the right to object and with
respect to my colleague from Illinois, my argument here is very simple,
and it is this: The Department of Justice, under Joe Biden and under
Merrick Garland's leadership, has become a weapon for political
intimidation as opposed to an instrument to prosecute justice in this
country.
My colleague from Illinois says that Donald Trump has asked me to do
this. He, of course, has no evidence for this fact, and I have never
had a conversation with President Trump to this effect.
What I have said publicly and privately and to anyone who will listen
is that the Department of Justice should be about justice and not about
politics.
This hold policy, which covers two nominees right now and maybe a
third coming up to the Department of Justice, is simply to say that
this cannot go on. We are a republic, not a banana republic. So long as
Merrick Garland prosecutes not just Donald Trump but any number of
political opponents--from Catholic fathers of seven to parents
protesting peacefully at their school board meetings--so long as the
Department of Justice focuses on citizens exercising their rights
rather than criminals who are violating the rights of others, I will
continue to object, and I do object.
The PRESIDING OFFICER. The objection is heard.
The Senator from Illinois.
Mr. DURBIN. Madam President, I keep hearing this argument over and
over again--weaponizing the Department of Justice. His complaint is
that the Department of Justice has decided that Donald Trump, an
American citizen, should be held responsible for his own conduct. Why
would you argue that any citizen in this country is above the law?
I didn't choose to make that strategy or even support it publicly,
but I can't argue with the decision by the attorney general, nor the
State of New York, nor the State of Atlanta, who believe that Donald
Trump did things that he should be held accountable for. He will have
his day in court, like every American citizen. He should not be put in
some saintly status that he can't be touched.
To think that in order to show my protest to any policy, I want to
see the Department of Justice of the United States grind to a halt--
does the Senator have any idea what he just said? To think that we
would stop the court proceedings, we would stop the prosecutions, we
would stop the war against drugs, we would stop the war against
terrorism, have them grind to a halt because I am mad that the former
President is being, in my mind, harassed by this administration--this
is irresponsible conduct, it is dangerous conduct, and it is a terrible
precedent to set in the Senate that we would say to any individual: You
have the power to stop a nominee who has been found to be acceptable on
a bipartisan basis through the Senate Judiciary Committee.
You know as well as I do that these nominees come before the
committee, and both staffs, Democrat and Republican, tear through them
to look for any flaws or any reason to stop the nominations.
These two nominees in Ohio--his home State--and in Illinois both
passed the test, the bipartisan test, and they were on their way to do
a job for America and make it a safer place to live, and he stops them
because he doesn't like the way Donald Trump is being treated. Is that
a fact? He admits it on the floor of the Senate.
It is hard to explain to the Senator--he is new to the Senate,
relatively new to the Senate--that some of the traditions in the Senate
are worth keeping.
The fact that we gave 85 U.S. attorney nominees to Donald Trump as
Democrats and did it without a single record vote is an indication we
were trying to help his administration do their job. Why won't the
Senator from Ohio let the Biden administration do their job and keep
his own State safe?
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Unanimous Consent Request--S. 1819
Mr. MARKEY. Madam President, 2 weeks ago, our Nation surpassed 38
mass murders--the highest level since 2006. Since then, at least three
additional mass murders have occurred. This harrowing record serves as
another forceful call to action for Congress. We must act today to end
gun violence. That is why I rise today in support of my 3D Printed Gun
Safety Act.
I rise for those festival-goers in Las Vegas. I rise for patrons of
Pulse nightclub and Club Q. I rise for the children in Sandy Hook,
Uvalde, and Nashville. I rise for Mainers in Lewiston. I rise for all
those victims whose names are not well known and whose stories do not
dominate the airwaves. I rise, I rise, and I rise again.
There is no conceivable reason to further delay another gun violence
prevention vote in the U.S. Senate. Senate Republicans are blocking the
will of the American people and exposing Americans to unnecessary
bloodshed.
This month, the Gun Violence Archive reported just under 40,000 gun-
related deaths in the United States this year, including over 22,000
suicides. Additionally, over 1,500 minors under the age of 18 have been
fatally shot.
I rise today for the 40,000 families whose lives are forever changed
because Republicans refuse to take action on gun violence--40,000
families.
This Congress unfortunately has no shortage of brutally tragic
stories to remind us that the most vulnerable among us will continue to
suffer from firearm violence if we fail to act. We need to act now--and
we should have acted a long time ago--to pass commonsense legislation
that keeps guns out of dangerous hands.
There is a long list of commonsense bills that Democrats have
introduced this Congress to prevent gun violence, but Republicans have
not allowed a vote on a single bill. None of the bills have ever seen
debate on the floor of the U.S. Senate. Just last week, Republicans
blocked votes on a bill requiring safe storage of firearms and on a
background checks bill, which is supported by 9 out of 10 Americans.
Experts continue to point to the availability of guns as the primary
cause of the rise in gun violence in our country. It is unconscionable
for my colleagues on the other side to continue to ignore this reality.
We are now faced with a terrifying new source of gun violence: 3D-
printed firearms. 3D printing is an easy, quick, and inexpensive method
for people to obtain a firearm who otherwise would be prohibited from
doing so. Middle schoolers with access to their school's computer labs
could print them. Convicted domestic abusers could print them.
It is not only 3D-printed guns but also gun components, 3D-printed
components, including silencers, scopes, and braces, which increase
lethality for those who are harmed by them, and 3D-
[[Page S5950]]
printed components can turn a semiautomatic firearm into an automatic
firearm.
These guns present modern and unique challenges. Some 3D-printed guns
are entirely plastic and evade metal detectors. This increases safety
risks in public venues secured with metal detectors, such as airports,
courts, concert halls, and government buildings. And 3D-printed guns
are not typically serialized and therefore are not readily traceable.
That increases the burden on local law enforcement as they work to
solve cases across our country.
It is imperative that we put an end to the proliferation of these
deadly weapons. So how can we do it? Well, we need to stop this problem
at the source: readily available online blueprints.
Currently, the online sharing of blueprints is legal in all but two
States in our country. My bill, the 3D Printed Gun Safety Act, would
change that. My bill would make it unlawful to intentionally distribute
3D printer files that can produce firearms or any related parts. This
change is common sense and constitutional, and it will save lives. A
world where 3D printing instructions for firearms are freely accessible
is a world where anyone can have a machine gun printed out in minutes.
I understand and appreciate that we do not all share the same views
on gun violence prevention, but thousands of Americans have already
died this year due to Republican obstructionism on sensible gun
violence prevention reform.
We must end the stranglehold the National Rifle Association--the
NRA--has on congressional Republicans. It is time to make NRA stand for
``not relevant anymore'' in American politics. That is what has to
happen. That is the revolution we need in this country.
I thank Senator Menendez and Representative Moskowitz for their
partnership. I thank Brady, Everytown, Giffords, and March for Our
Lives for their advocacy. I thank the many organizations and organizers
on the ground who are in every State helping families and communities
to heal from the devastating impacts of gun violence. I thank my
Democratic colleagues, who have staunchly supported every action that
has come to this floor in an attempt to put an end to the scourge of
gun violence.
Gun violence is tearing apart Republican and Democratic communities
alike in this country. Stand with us on the right side of history.
Today, we can start the long process that we are going to need of
national healing right here in this Chamber.
I ask my colleagues for their support for my bill today.
Madam President, I ask unanimous consent that the Committee on the
Judiciary be discharged from further consideration of S. 1819, the 3D
Printed Gun Safety Act of 2023, and that the Senate proceed to its
immediate consideration. I further ask 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.
The PRESIDING OFFICER. Is there objection?
The Senator from North Carolina.
Mr. BUDD. Madam President, reserving the right to object, I oppose S.
1819 because it is a solution in search of a problem.
First and foremost, people have made their own firearms since before
America's founding. This is not a new issue in need of emergency
legislation.
Second, firearms manufacturing is already very highly regulated. For
example, the 1988 Undetectable Firearms Act made it unlawful to
manufacture, import, sell, ship, deliver, possess, transport, or
receive a firearm that cannot be detected by a conventional metal
detector.
And even if someone violates this law using 3D technology, metal
ammunition cartridges and the bullets themselves would still be
detectible.
Third, 3D printing of firearms is an extremely technical process that
requires high-level technology and an extensive time commitment, not to
mention an extreme financial cost. Simply put, 3D manufacturing of
firearms would be an entirely ineffective way for a criminal to obtain
a firearm.
Fourth, this bill would be an unconstitutional infringement on the
First Amendment speech rights of law-abiding hobbyists and firearms
enthusiasts who simply want to share specifications about unique or
antique firearms.
At the end of the day, we don't have a device problem; we have got a
people problem. And this bill represents another attempt by some to use
fear and misunderstanding to layer more Federal regulations on an
already highly regulated industry.
If we share the goal of keeping our fellow citizens safe, a better
approach would be to enforce the laws that are already on the books and
to fully fund and support the police and reverse the soft-on-crime
policies of Democrat-run cities. And that is how we ensure public
safety.
Madam President, I object.
The PRESIDING OFFICER (Ms. Cortez Masto). Objection is heard.
The Senator from Kentucky.
Point of Order
Mr. PAUL. Madam President, I raise a point of order that section 7902
of the conference report to accompany H.R. 2670, the National Defense
Authorization Act, violates rule XXVIII.
The PRESIDING OFFICER. The Senator from Rhode Island.
Motion to Waive
Mr. REED. Madam President, pursuant to rule XXVIII, paragraph 6, I
move to waive all applicable points of order, and I ask for the yeas
and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Madam President, I would like to begin my remarks by
focusing on what we are debating and what we are not debating. We
really need clarity on this point of order and what it is about.
To be perfectly clear, what this point of order would do would simply
be to remove from the National Defense Authorization Act a nongermane
reauthorization of a surveillance authority--section 702 of the Foreign
Intelligence Surveillance Act--that has a well-documented history of
abuse.
Including the reauthorization in the NDAA, of course, violates rule
XXVIII of the Senate rules governing conference reports. This
particular provision was airdropped into the National Defense
Authorization Act, notwithstanding the absence of any predicate for
that provision either in the House version or the Senate version of the
bill, which, of course, the conference committee was created to iron
out. It was created to iron out the differences between those two
bills.
Because it was in neither version, the Senate Parliamentarian
correctly concluded that this is a nongermane addition to the measure,
and as such, it is subject to a rule XXVIII point of order.
What this means as a practical matter today is this comes out; it
comes out unless 60 Senators make a deliberate, conscious choice and
make that choice by voting to waive rule XXVIII. They would be saying:
Yeah, it is not germane. Yeah, it wasn't in the House version or the
Senate version. Notwithstanding that, we want it in there anyway.
For the reasons that I will articulate now, that would be a grave
mistake--a grave mistake on multiple levels. As I make that
explanation, I do want to clarify at the very outset what I am not
asking for, what is not my objective here. My objective is not to cede
our ability to collect the substance of communications from our foreign
adversaries under section 702 of FISA. That is not it. I am not trying
to make the whole program go dark.
What I am talking about is the fact that we need much needed reform
in this area because section 702 of the Foreign Intelligence
Surveillance Act has been widely, infamously, severely abused over a
long period of time, to the point that, literally, hundreds of
thousands of American citizens have become victims of what I refer to
as warrantless backdoor searches.
What does this mean? OK. So the way it works under FISA 702: FISA 702
allows our intelligence-gathering Agencies to go out and scoop up
information--bits of information, recordings, phone calls, records of
things like texts and email exchanges, and other types of electronic
communications--and store them in a database. Insofar as those are
directed, as section 702 orders are supposed to be under the Foreign
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Intelligence Surveillance Act, at foreign nationals operating on
foreign soil, we are not concerned about them.
The Fourth Amendment is not there to protect them. It is not there to
protect our foreign adversaries operating on foreign soil. No. It is
there to protect the American people, the American people against their
own government.
The Fourth Amendment has been around for a long time. It has been on
the books in the United States since 1791 when it was made part of the
Constitution. And it provides, in essence, that you are entitled to a
reasonable expectation of privacy in your person, in your papers, in
your home; that the government can't just come in and search and seize
your papers, your personal effects and communications--not without a
warrant, a warrant that has to be based on probable cause, evidence of
probable cause of a crime and that describes, with particularity, the
things to be searched, the items to be seized, and so forth.
While new to this country as a matter of U.S. constitutional law as
of 1791, it actually goes back a lot farther than that. These were
things that evolved over many centuries under British law--and with
good reason. So it was with good reason, it was on that foundation--
centuries of British common law experience--that we adopted the Fourth
Amendment into our Constitution. And it matters that we follow it. It
matters that we follow it in every circumstance.
And every American ought to be concerned about deviations from that,
especially whereas here, there is a pattern and practice of abuse, of
going after Americans' communications.
So how does that happen?
In a database that is full of communications collected on and from
and pertaining to our foreign adversaries on foreign soil, how do the
rights of American citizens end up being threatened by that?
Well, here is how it happens: When they collect all of this stuff--on
some occasions, foreign nationals communicate with friends, relatives,
business associates--I don't know--perhaps intelligence targets,
whatever they may be, who are in the United States, who are United
States citizens. So some of those conversations--by phone, by text, by
email, or whatever electronic means--end up being, as we say,
incidentally collected and placed into the 702 database.
One of the biggest things we are concerned about here is that on
literally hundreds of thousands of occasions, innocent, law-abiding
Americans have been subjected to what we call a backdoor, warrantless
search whereby someone at the FBI or another Agency enters in
information.
They know that Bob Smith has a certain phone number or a certain
email address or some other identifier; they know that Bob Smith is a
U.S. citizen; and they go in and they search for communications in the
702 database pertaining not to a foreign terrorist, not to an agent of
a foreign power outside the United States, not to a foreign adversary
in any way outside the United States, but to Bob Smith, the law-abiding
American citizen. In that circumstance, it is a problem. It is a
problem to go into that without a warrant.
That stuff is there not just for the government's curiosity. It is
there not for some voyeuristic, pleasure-seeking impulse on the part of
Federal agents. No. It is there to protect the United States of America
from foreign adversaries and to allow us to track our foreign
adversaries and what they are doing. And so in order to go into that
database, they should have to get a warrant.
Now, deep down, folks at the FBI appear not to disagree with that, at
least in the sense that they try mightily to convince us that they are
already preventing warrantless backdoor searches of American citizens'
private communications on that database. In fact, they have been doing
this. I have been in the Senate--along with my friend and colleague,
the junior Senator from Kentucky, we have both been here for 13 years.
The entirety of that time, I have served on the Senate Judiciary
Committee. The entirety of that time, I have questioned FBI Directors
and other people within the government, asking them about what happens
with this 702 database, particularly as it relates to private
communications that are stored in the 702 database of American citizens
and searches involving American citizens.
Over and over and over again, for 13 years, like deja vu all over
again, I get the same variation of the same set of answers: Don't
worry. You have got nothing to worry about. We have really good
procedures in the U.S. Government. We follow those procedures. We take
them seriously. We are professionals, and we will not mess with your
information.
Yet again and again and again and again, every single time they make
that promise, it is like it is a curse because it gets worse every
single time they say it. And every single time, I ask them more
questions designed to delve into what they are actually doing, and
every single time, including my most recent interaction with the FBI
Director, Christopher Wray, just last week, it becomes clear, on closer
examination, that they are not really stopping these things from
happening.
In fact, just last week, Director Wray had the audacity to tell me
that, no, this has all stopped now because he adopted some new
procedures--like I hadn't heard that one before--when, in fact, some of
the examples he pointed to were things that supposedly happened only
after he had adopted these procedures and all the bad stuff had stopped
after those procedures--it turns out, some of those things had happened
after he had adopted those procedures.
No surprise to me; no surprise to anyone who has followed this; no
surprise to anyone who understands human nature. And those within
government exercise power that doesn't belong to them.
So we shouldn't be reauthorizing this, not in the NDAA. Not only is
it not germane, not only was it not in the House version or in the
Senate version, Madam President, it is not even necessary.
Why? OK. When you look at the statutory text, the statutory text
adopted by the U.S. Congress in the Foreign Intelligence Surveillance
Act amendments of 2017, which I think took effect in early 2018, they
make abundantly clear that they were written in such a way as to
provide for this very circumstance, meaning the circumstance in which
we are approaching now, the scheduled expiration of section 702 of FISA
at midnight on December 31, on New Year's Eve.
So at the stroke of midnight--now New Year's Day--FISA expires. Those
who are in favor of waiving this point of order, disregarding the
Senate rule XXVIII that should require us to strike this unnecessary,
overbroad, and manipulative extension of FISA 702, they would have us
believe that Armageddon will immediately be upon us--dogs and cats
living together in the streets, the wrath of God, Apocalyptic stuff
like we never experienced. Why? Because FISA 702 will have gone dark.
The problem with that argument: It is not true. It flies in the face
of statutory text adopted by this Congress the last time we
reauthorized FISA 702. And that language makes clear that even if FISA
702 expires during that time period, because there was a certification
granted by the Foreign Intelligence Surveillance Court, known as the
FISC--and that was issued on or about April 12 of 2023 and those
certifications are designed to carry forward 365 days--we have at least
until the end of the day on April 11, 2024, before communications could
no longer be collected under section 702 because, again, we have the
certification that is in place.
That certification, together with the language that was passed the
last time we extended FISA 702, inadvisably--inadvisably--without any
major statutory reforms--but we did include that one--we made that the
case. So it is not going to go dark.
If Senator Paul's point of order under rule XXVIII succeeds, and if
we are able to thwart the effort to waive that--and it would take only
41 of us to do it, only 41 of us would have to stand behind that to
prevent them from getting it to 60 to waive it--if that happens, it is
still not going to go dark. It wouldn't go dark unless or until we
hadn't extended FISA 702 before April 11, 2024.
It begs the question: Why in the Sam Hill did we have to put this
thing in here if it wasn't necessary?
Well, I have a sneaking suspicion I know why some might hope that it
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happens that way, for the same reason that it is not going to make 702
collection go dark as of 12:01 a.m. on New Year's Day. This measure,
the 702 extension buried within the 3,000 or so pages of the National
Defense Authorization Act, will give them a bright and golden
opportunity to make this not a 4-month extension of FISA 702 but a 16-
month extension of section 702.
In other words, if you read through the statutory text that we
adopted the last time we reauthorized 702 and you wanted this to extend
and you wanted to make sure that we delayed and delayed and delayed the
period of time in which Congress would be forced to make a decision--a
decision could result in serious reforms to FISA 702--what would you
do?
Well, you would pass this very thing. You would waive Senator Paul's
point of order under rule XXVIII. And then you would probably wait
until April, I don't know, 10 or 11 of 2024. You would go back to the
FISC--the Foreign Intelligence Surveillance Court--and you would ask
for a new certification. A certification that would do what? Move it
forward another 365 days.
We would now be punting until April 2025, well after the 2024
election cycle had run to its end before having to address this. That
is what we are dealing with.
Now, let's back up a minute. Let's say that there are some within the
sound of my voice who might disagree with my interpretation of the
statutory text we adopted the last time we renewed section 702 of the
Foreign Intelligence Surveillance Act. They would be wrong because the
text is really clear, but let's just assume that for a minute. Let's
accept that premise for purposes of argument here. Even if that is the
case, we can still strip out this poorly written measure and replace it
with another freestanding measure, not adopt it as part of the NDAA--
one that I prepared, one that I am introducing, along with my lead
Democratic cosponsor, Oregon Democratic Senator Ron Wyden--that would
reauthorize section 702 until mid-March. It would reauthorize it with
instructions that say: If during that time period the FISC issues a new
certification, that certification may not be read to authorize further
collection under 702 if during that time period FISA 702 were to
expire.
This makes a huge difference because if we do it this way, rather
than through the National Defense Authorization Act, as Senator Wyden
and I have proposed doing, then we will actually have a force-moving
event. We will actually have a real opportunity for the House and for
the Senate to have an open, honest, robust, roiling debate about the
nature and extent of the abuse that we have seen under FISA 702.
And we will be in a great position at that point to adopt real
reforms--real reforms that would require you to get a warrant. If you
want to collect information specifically on Americans in this FISA 702
database, you need to get a warrant. You just do.
The government may not like it because governments never like
anything that makes it more difficult to do what they want to do, but
our law enforcement Agencies do it all the time. They do it because
they have to because it is the law, and it is the Constitution. We
don't deviate from that. It is bad.
Somehow these intelligence gathering agencies and the FBI think that
they are exempt when it comes to FISA 702. They are not. They should
not be. No American should be comfortable with that. Recent experience
and long-term experience have both taught us that there is a grave risk
in doing that, in simply ignoring it, in simply presuming that the
human beings that operate in this environment will always have their
best interest at heart.
And yet, they want to push ahead with this measure, saying that the
sky will fall. It will not. I am absolutely convinced, if we succeed
tonight--if Senator Paul's point of order succeeds and it is not
waived--I am confident that within 24 hours, we can and we will adopt
this freestanding measure to make sure that 702 doesn't go dark. Even
though it wouldn't go dark otherwise, even though we won't need it, we
are willing to do that. We are just wanting to clarify one thing, which
is that we still have to have this debate. We still have to have a
force-moving event in the next few months that works out the case, that
reforms the system, that requires the government to get a warrant if
they are going after an American. It is not too much to ask, not at
all.
We have proposals that are ready to do that. I have a bill that I
introduced with Senator Wyden, the Government Surveillance Reform Act.
There is a counterpart to that in the House of Representatives. It
passed out of the markup in the House Judiciary Committee just last
week. It contains these and other reforms, reforms about having to get
a warrant, reforms that would impose some consequence to those
government agents who abuse the system. And lest you think, even for a
moment, that these abuses are contrived, fictitious, or a figment of
our imagination--some sort of paranoid fantasy hallucination--they are
not.
We need to support this point of order. We need to not waive it.
Waiving it is lawless. Waiving this particular point of order would
contribute to more circumvention of the Fourth Amendment.
In the spirit of English parliamentarian John Wilkes, whose rights
under English law and the English Constitution were violated just
before Easter in 1763, he stood up to the government. He stood up to
the government. He stood up to the government of King George III, and
he said: No, you are not doing this. He sued the officers who had
carried out what was, in effect, a warrantless search of his home under
the use of a general warrant. In some ways, it looks a little like a
702 collection of a citizen. In other ways, it is different because
they didn't have the technology that we have got now, but the same
principle applied.
He sued the King and his Ministers, and he won a large money
judgment. He got all this as a result--and he was searched as a result
and he was jailed in the Tower of London for a time as a result of his
publication of a document known as North Britain No. 45.
North Britain No. 45 criticized King George III and his Ministers
for, among other things, using general warrants, warrants that
basically said go out and find people who did bad stuff, search them,
seize their papers, their possessions, them, if necessary, and make it
happen--no particularity requirement, no probable cause. Just go do it.
No. 45--a reflection of North Britain No. 45--quickly became
synonymous on both sides of the Atlantic with the cause of liberty and
with John Wilkes himself and with the cause against warrantless
searches and seizures and the use of general warrants, which might as
well be warrantless searches and seizures.
John Wilkes would be appalled by what he sees today. And the American
people, just as they heralded him, an ocean away, in the 1760s and
1770s, after this happened, just as he was celebrated all over England
by remembering him by the No. 45, they were celebrating him then too.
So, too, today the American people will be pleased because they will
have reason to celebrate that they are no longer subject to these
warrantless searches because they are wrong.
Once again, lest you be convinced, even for a moment, that this is
hyped up, it is not. Now, look, if you are comfortable with the
government, under the pretext of looking for foreign surveillance and
without any kind of warrant, let alone evidence establishing probable
cause, let alone something that would satisfy the particularity
requirement of the Fourth Amendment--if you are comfortable with the
government violating civil liberties of the American people this way,
if you are comfortable with them violating the liberties of at least
one sitting Member of the U.S. Senate--could be any of us--violating
the civil liberties of at least one sitting Member of the House of
Representatives--could be any of them, not sure who it was--with them
violating the civil liberties of protesters, both conservatives and
liberals, Republicans and Democrats, with them violating the civil
liberties of 19,000 law-abiding innocent Americans whose only common
thread was the fact that they all happened to have donated to a
particular political campaign, if you are OK with these and hundreds of
thousands of other egregious violations of the letter and spirit of the
Fourth Amendment, then, by all
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means, you should feel free to go ahead--go ahead--and support the
motion to waive.
But if you are not OK with any of those things and don't think anyone
is immune from them--if you are not OK with any of these things--it is
illogical, it is irrational, it is insane to do anything other than to
oppose the motion to waive the point of order.
So I will close by asking the question: Why would they want to do
this? Those who are so dug in and making this even harder for the NDAA
to pass in the House--you know, because of the fact that they
airdropped this thing into the NDAA at the last minute sparked such a
controversy over there that they are having to bring it up under a
procedure known as suspension of the rules.
Suspension of the rules requires them to pass it with 290 votes
instead of 218. It would make it infinitely easier for this thing to
get passed and passed quickly over there if we just listen to Senator
Paul, if we just sustain rather than waiving, foolishly, the point of
order that he is making under rule XXVIII.
They are wanting to avoid not only changing 702 and making the
Federal Government answer to the people according to the U.S.
Constitution, they are unwilling even to face the music of this
debate--a debate that is long overdue, a debate that we should have had
and that should have culminated in reforms through legislation in 2018
but did not. And shame on all of us for not making that happen. Some of
us tried. We were overcome. But the American people are not going to
take this anymore, nor should they.
So if you are not comfortable with those kind of abuses--and I think
we should all be uncomfortable--with this sacrifice of liberty on the
altar of fear, uncertainty, doubt, and dogged secrecy, then support
Senator Paul--support him in his meritorious point of order and oppose
the motion to waive that point of order. The American people expect
more, and the Constitution demands it.
Mr. VAN HOLLEN. Madam President, with regards to the motion to waive
the point of order against the FISA section 702 provision in the
conference report, I share the sponsor's concerns on the potential
expiration of section 702 authorities, which are critical to foreign
intelligence collection efforts and protecting the homeland. However, I
am also deeply concerned that Section 7902 of the NDAA extends section
702 authorities without much-needed reforms to better protect the civil
liberties of Americans.
Despite the fact that surveillance under this section is supposed to
be limited to certain foreign nationals abroad, a FISA Court opinion
released in July 2023 stated that the FBI conducted approximately
40,000-50,000 warrantless ``back door'' search queries of section 702
communications data targeting U.S. persons per quarter in 2022. I
support the FBI's initiative to voluntarily adopt stricter internal
compliance rules to address this problem, but the administration and
Congress must work together to do more to balance the need for
intelligence collection and the protection of civil rights.
Due to the FISA Court's certification process, the administration has
acknowledged that, even in the absence of a formal 4-month extension,
the government is able to conduct surveillance authorized under section
702 until April 11, 2024. I also understand that a formal extension of
FISA authorities through April 2024, would effectively reset the clock
and allow the administration to obtain a fresh certification from the
FISA Court, thereby effectively extending the authority for an
additional 12 months beyond the 4-month extension. That would only
further delay our opportunity to review the program and propose
necessary reforms. For the record, I would have supported an
alternative that extended the formal authorization through April 2024,
so long as it would have prevented the administration from obtaining a
fresh certification to extend the program for another year after that.
That alternative is not, however, before the Senate. The bottom line is
that I agree that the section 702 program is necessary for our national
security, but I also think it needs to be reviewed and reformed.
We should not short-circuit the robust, bipartisan discussions in
Congress on how to reform this authority with a lengthy extension. I am
voting against this motion to waive the point of order so we can pair
the extension of section 702 surveillance programs with a serious and
targeted reform effort that maintains critical national security
capabilities in a manner consistent with constitutionally protected
rights.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. During the 1960s, the FBI spied on Martin Luther King and
other civil rights protestors. The FBI spied on Vietnam war protesters.
The Church Committee was formed in the 1970s and detailed these abuses,
and the response by Congress was to pass something called the Foreign
Intelligence Surveillance Act, or FISA. FISA was ostensibly passed to
limit spying on Americans. It was supposed to be a reform, but as far
as the Foreign Intelligence Surveillance Act allows government to spy
on U.S. citizens without a warrant, it is unconstitutional.
As Dr. John Tyler from Houston Christian University points out, ``the
FISA text, the Constitution's text, and the relevant opinions by the
U.S. Supreme Court conclusively demonstrated that FISA, and its secret,
ex parte''--meaning you only hear from one side of the court--these
``courts are unconstitutional for three reasons.''
``First, the secret, ex parte courts violate the case or controversy
requirement of Article III.''
Courts are about deciding disputes between two parties. They aren't
originated just to say: This is a pronouncement. There has to be a
dispute, and in the FISA Court, it is more about having a generalized
comment.
``Second, FISA violates Fourth Amendment liberties from unreasonable
searches and seizures.''
``Third, FISA and its secret ex parte courts violate the due process
guarantees of the 5th and 14th Amendments.''
Dr. Tyler goes on to say that ``lastly, the Supreme Court has ruled
that national security does not require secret courts or justify
ignoring the Fourth Amendment liberties.''
This unconstitutional government spying has been further authorized
by adding section 702 to FISA. That law entrusts America's intelligence
Agencies with broad authorities, supposedly to surveil foreigners
abroad. But time has proven, again and again, that America's
intelligence Agencies cannot be trusted with this immense power and
responsibility.
Section 702 expires at the end of this year. We have known this for 5
years, and yet somehow the Senate has no time to debate this and wishes
to simply extend it.
Members of Congress anticipated using this deadline as an opportunity
not just to make meaningful changes but to reform FISA generally to
better protect Americans' civil liberties, but it doesn't appear to be
allowed to happen at this point. Everything is rush, rush, rush; let's
pass it without debate. But they have known for 5 years that it was
going to expire at the end of this year, and yet they just want to punt
it with the hope that they will never have to debate it.
Extending this section 702 robs Congress of the ability to make
reforms now and likely robs Congress of the opportunity to make reforms
any time in the next year. That means that, once again, the
intelligence Agencies that ignore the constraints on their power will
go unaddressed and unpunished, and the warrantless surveillance of
Americans in violation of the Bill of Rights will continue.
Using 702, Americans' communications, content, and metadata is
inevitably swept up and kept in government databases without a warrant.
Law enforcement Agencies then access Americans' communications, once
again without a warrant. In other words, your texts, your emails, and
your phone calls are collected into this massive government database,
without a warrant, and then searched willy-nilly by thousands of
different employees without a warrant.
As Judge Andrew Napolitano points out, ``the Constitution requires
probable cause of a crime to be demonstrated to a judge before a judge
[grants] a warrant. That was the law of the land until FISA.''
But now FISA has set up a special court that meets in secret, the
Foreign Intelligence Surveillance Court, and it
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authorizes ``judges on that court to issue search warrants based on a
lower standard of probable cause.''
The Fourth Amendment says you have to prove to a judge probable cause
of a crime. This says you only have to prove probable cause of an
association with a foreign entity. This is contrary to the
Constitution. This is not the Fourth Amendment.
The Constitution requires that warrants be issued on probable cause
that a crime has been committed, but as Judge Napolitano makes clear,
``FISA established probable cause of foreign agency.'' So it lowered
the standard. It is not probable cause of a crime. It is probable cause
of association with a foreign agency.
But even that standard ``morphed [down] into probable cause of
speaking to a foreign person,'' which then again morphed even further
down to ``probable cause of speaking to any person who has ever spoken
to a foreign person.'' All of that happened in secret and without
Congressional approval.
With this weakened standard to order surveillance, these FISA judges,
who meet in secret, grant 99.97 percent of all warrants. They are a
rubberstamp for whatever they want to do. The left-leaning Brennan
Center for Justice further explains why a law designed to protect the
Fourth Amendment has led to their dissolution.
The Brennan Center states that ``dramatic shifts in technology and
law has changed the role of the [FISA] Court since its creation in
1978.''
``The fundamental changes not only erode Americans' civil liberties,
but [they] likely violate Article III of the U.S. Constitution, which
limits courts to deciding concrete disputes between parties rather than
issuing opinion on abstract questions.''
According to the Brennan Center, ``today's FISA Court does not
operate like a court at all, but more like an arm of the intelligence
establishment.''
``The FISA Court's wholesale approval process also fails to satisfy
standards set forth by the Fourth Amendment, which protects against
warrantless searches and seizures.''
Some people issued prescient warnings about the destruction of civil
liberties and constitutional rights at the time. At the time, then-
Senator Joe Biden stated that he was voting no on this section 702,
this expansion of FISA powers. Senator Joe Biden said it ``would be a
breathtaking and unconstitutional expansion of the President's powers
and it is wholly unnecessary to address the problems the administration
has identified.'' Then-Senator Biden added that he would ``not give the
President unchecked authority to eavesdrop on whomever he wants in
exchange for the vague and hollow assurance that he will protect the
civil liberties of the American people.''
Boy, I wish that Joe Biden were still around and remembering his
comments about FISA.
Patrick Eddington of the Cato Institute has dedicated his career to
exposing the abuses of surveillance authorities. He argues that section
702 of FISA and its predecessors comprise the ``biggest
unconstitutional mass surveillance dragnet in American history'' and
that ``we have documentary evidence from the federal government's own
records of repeated, systemic abuses'' of this authority.
Even the FISA Court itself, in 2018, held that the FBI's procedures
for accessing Americans' communications that are incidentally collected
under 702 violate both the statute and the Fourth Amendment. Even the
FISA Court, which rubberstamps these warrants like there is no going
away, says that they believe they are violating the Fourth Amendment.
But this warrantless surveillance on Americans goes on. In 2021
alone, the FBI conducted 3.4 million warrantless searches of Americans'
communications. Like the spying on Martin Luther King and Vietnam war
protesters, the FBI still targets individuals for their beliefs.
The FBI accessed the 702 database without search warrants to access
the information of 19,000 political donors. They accessed the records
of those involved with a protest on January 6. They accessed the
records of a Member of Congress and ``Black Lives Matter'' activists.
You might think, oh, I have got nothing to hide, no big deal. You
might think that if you avoid political activity, you can avoid the
long arm of the government.
But think again. If you call a merchant in England or text a family
member in Germany or email a friend in Israel, the feds can seize and
search your communications without permission, without a warrant, and
without due process.
But that is not all. The Federal spies can then capture all the
communications of the persons you subsequently reached out to and all
the persons they reached out to. It goes on and reaches its tentacles
out, such that it gathers millions of communications.
Imagine a Senator or a Congressman who talks to a Prime Minister
overseas. Their communication is in the database.
To allow this to happen--imagine all of the people who are in
international business and who make international phone calls. Their
phone calls are in the database.
And it would be one thing if we were just collecting this to look at
terrorist activities, but, no, we let the FBI search any American's
name in there. They can go in under any pretext.
We told the FBI: You have to list why you are searching the name. And
they didn't do it. They actually go around some of the rules by saying:
Oh, let's search 10,000 things and call it 1 query.
We cannot trust them. You cannot trust the fox to be in charge of the
henhouse. We need controls, and Congress needs to do their job.
We had 5 years to think about this. It comes up, and we are just
going to airdrop it in and say: Sorry. We haven't had time to think
about this. We don't have time to reform it. We don't care about
Americans' privacy.
That is what the majority, who will vote to just drop this in and
turn the other way, will do.
It would be bad enough if the FBI limited itself to eviscerating the
Fourth Amendment and indiscriminately collecting and searching the
private communications of millions of Americans, but it is far worse
than that.
As we all know, the FBI abused the immense power conferred to it by
FISA to subvert a Republican Presidential campaign. In its zeal to
investigate Carter Page, a foreign policy adviser to Candidate Trump,
the FBI sought to obtain permission to conduct electronic surveillance
on Page, not by going to a real judge, in public, in an article III
court, but by going to a secret judge.
Imagine the chilling effect, if you can try to get beyond the
politics of whether he is a Republican or a Democrat. Imagine the
chilling effect of the government investigating political campaigns.
How could anybody think that that is a good idea?
To eavesdrop on Page, the FBI needed to get approval from the FISA
Court, not a real warrant but just a warrant that he was associated
with a foreign government. The secretive court that grants 99.97
percent of warrants gave it to them.
But the FBI also relied on information they were given by the Trump
opponent's campaign--Hillary Clinton's campaign. You have something
called the Steele dossier that was all over the news. That dossier was
given to the FBI by a political campaign. It was essentially opposition
research. Clinton's Presidential campaign and the Democrat Party
obtained the secret surveillance order by subterfuge.
But the FBI didn't verify or check the claims made in the dossier, as
it is required to do by law. To put it in plain English, the FBI was
able to spy on an American citizen because it presented the Democratic
Party's opposition research as evidence to obtain a secret order on a
campaign operative.
This was fraud. This was an abuse of power. This was an attempt to
undermine a Republican Presidential campaign.
People talk about election interference. My goodness, what could be
more of an interference in a campaign than getting a secret order from
your intelligence Agencies to spy on a political campaign.
The order was ultimately found to be misleading, and you would think
this would have led to scandal. You would think this would have led to
punishment, but no one, really, was ever punished for this.
Even the New York Times described the effort to wiretap Carter Page
as ``a
[[Page S5955]]
staggeringly dysfunctional and error-ridden process.''
But these are not errors. These are not honest mistakes. These are
abuses of power. The audacity to dupe and manipulate the secret FISA
Court demonstrates that the misconduct was not mere accident, but
rather demonstrates the arrogance that inevitably results when a
secretive, one-sided process all but assures these Agencies will never
be challenged.
And what are we doing? The Senate will sweep this under the rug. We
will have no reform. They have known for 5 years this is coming up, and
they are not going to do a thing to reform it.
Since the FBI demonstrated a willingness to evade the rules to spy on
an aide to a Presidential candidate, we should not be surprised that
Carter Page was far from the only victim of the abuse of FISA
authorities. A subsequent Department of Justice review reviewed 29
other FISA applications and found that each one contained factual
discrepancies and errors, at an average of 20 mistakes per application.
More recently, Special Counsel John Durham's report on the FBI's
probe into the alleged collusion between Donald Trump and Russia
revealed that at least some FBI agents abused America's surveillance
apparatus to open a groundless counterintelligence campaign against a
Republican Presidential candidate.
And yet despite the abuses, despite the years of calls for reform,
the Senate is presented with a defense bill that continues the status
quo. In 5 years, they have had no time to debate this because they
don't want to. They want to rubberstamp this, and they want to look the
other way. Not one reform is included in this conference report that
would address the neglect of the Bill of Rights. Rather, the only thing
this conference report ignores is the long record of abuse of the
Fourth Amendment.
The Fourth Amendment is no mere limitation of government power. The
Fourth Amendment is fundamental to the concept of American liberty.
Today, the elected representatives of our country, whose Founders
overthrew a King who claimed a mandate from Heaven to rule an empire,
cannot muster the courage to tell its own law enforcement Agencies that
we will not tolerate the evisceration of the Bill of Rights, nor the
destruction of our electoral process.
Why would any Senator vote to waive this point of order? How can you
look your constituents in the eyes and justify your vote to empower
government at the expense of American's individual rights?
Do not fall for the hollow and cynical retorts from the other side
who inevitably argue that the world is on fire. Those who make the lazy
and predictable argument that government is your only shield from
threats, always fail to mention that government itself is often a
threat.
I think it is high time we quit letting fear overrun our
constitutional duty. The Members of this body should do themselves the
honor of standing by their oath to the Constitution. To protect our
civil liberties and the integrity of the congressional conference
committee process, we must strip this extension of domestic spying
authority out of the Defense bill.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. I yield back all remaining time.
Vote on Motion to Waive
The PRESIDING OFFICER. All time is yielded back.
The question is on agreeing to the motion to waive the point of
order.
The yeas and nays were previously ordered.
The clerk will call the roll.
The assistant bill clerk called the roll.
The yeas and nays resulted--yeas 65, nays 35, as follows:
[Rollcall Vote No. 342 Leg.]
YEAS--65
Barrasso
Bennet
Blumenthal
Boozman
Britt
Budd
Butler
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Crapo
Cruz
Duckworth
Ernst
Fetterman
Fischer
Gillibrand
Graham
Hassan
Hickenlooper
Hyde-Smith
Kaine
Kelly
Kennedy
King
Klobuchar
Lankford
Manchin
McConnell
Moran
Mullin
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Reed
Ricketts
Risch
Romney
Rosen
Rounds
Rubio
Schatz
Schumer
Scott (SC)
Shaheen
Sinema
Smith
Stabenow
Sullivan
Thune
Tillis
Warner
Whitehouse
Wicker
Young
NAYS--35
Baldwin
Blackburn
Booker
Braun
Brown
Cantwell
Cramer
Daines
Durbin
Grassley
Hagerty
Hawley
Heinrich
Hirono
Hoeven
Johnson
Lee
Lujan
Lummis
Markey
Marshall
Menendez
Merkley
Paul
Sanders
Schmitt
Scott (FL)
Tester
Tuberville
Van Hollen
Vance
Warnock
Warren
Welch
Wyden
The PRESIDING OFFICER (Mr. Ossoff). On this vote, the yeas are 65,
the nays are 35.
Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to, and the point of order falls.
The majority leader.
Mr. SCHUMER. Mr. President, for the 62nd year in a row, the Senate is
passing our annual Defense Authorization Act--one of the most important
bills we work on each year to protect the American people and ensure
our long-term security.
At a time of huge trouble for global security, passing the Defense
authorization bill is more important than ever. It will ensure America
can hold the line against Russia, stand firm against the Chinese
Communist Party, and ensures that America's military remains state of
the art at all times all around the world.
I thank my colleagues on both sides for their great work on the NDAA.
I applaud the leadership of Chairman Reed--steady, steadfast, always
getting it done--chairman of the committee, as well as the great
cooperation he had from Ranking Member Wicker and all the members of
the committee. I commend them for their good work.
Thanks to the good work on both sides, the final version of the NDAA
contains many of the most important bipartisan provisions we had in the
Senate's original bill.
We will give our servicemembers the pay raise they deserve. We will
strengthen our resources in the Indo-Pacific to deter aggression by the
Chinese Government and give resources for the military in Taiwan. We
will give DOD more resources to deploy and develop AI, protect against
foreign cyber threats, and increase transparency on unidentified aerial
phenomena, which I was proud to work on with Senator Rounds.
Critically, we will approve President Biden's trilateral United
States, UK, and Australia nuclear submarine agreement. The AUKUS
agreement is a game changer. It will create a new fleet of nuclear-
powered submarines to counter the Chinese Communist Party's threat and
influence in the Pacific.
I want to commend all the staff who made this possible: Liz King,
Jody Bennett, Kirk McConnell, Damian Murphy, Andrew Keller, David
Weinberg, Chris Mulkins, and so on. I also want to thank the floor
staff and the legislative staff that worked so long and hard to get it
done. And, of course, everyone knows I love my staff: Yazeed Abdelhaq,
Gunnar Haberl, Raymond O'Mara, Mike Kuiken, Meghan Taira, and so many
others. The staff has put in long hours, and all 100 Senators thank
them.
As I have repeatedly said, we began the month of December with three
major goals here in the Senate before the end of the year. First, we
had to end the blockade of the hundreds of military nominees. We have
done that. Second, we needed to pass the NDAA. We are doing that now.
And, finally, hardest of all, we must reach an agreement on a national
security supplemental. We are trying.
Democrats are still trying to reach that agreement. We had very
productive talks with our Republican colleagues today; but, of course,
we have a lot of work to do left. We are going to keep working.
I yield the floor.
Vote on Conference Report
The PRESIDING OFFICER. Under the previous order, all postcloture time
has expired.
The question is on agreeing to the adoption of the conference report
to accompany H.R. 2670.
Mr. CARDIN. I ask for the yeas and nays.
[[Page S5956]]
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The result was announced--yeas 87, nays 13, as follows:
[Rollcall Vote No. 343 Leg.]
YEAS--87
Baldwin
Barrasso
Bennet
Blackburn
Blumenthal
Boozman
Britt
Brown
Budd
Butler
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Duckworth
Durbin
Ernst
Fetterman
Fischer
Gillibrand
Graham
Grassley
Hagerty
Hassan
Heinrich
Hickenlooper
Hirono
Hoeven
Hyde-Smith
Johnson
Kaine
Kelly
Kennedy
King
Klobuchar
Lankford
Lujan
Manchin
Marshall
McConnell
Menendez
Moran
Mullin
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Reed
Ricketts
Risch
Romney
Rosen
Rounds
Rubio
Schatz
Schmitt
Schumer
Scott (FL)
Scott (SC)
Shaheen
Sinema
Smith
Stabenow
Sullivan
Tester
Thune
Tillis
Tuberville
Van Hollen
Warner
Warnock
Whitehouse
Wicker
Young
NAYS--13
Booker
Braun
Hawley
Lee
Lummis
Markey
Merkley
Paul
Sanders
Vance
Warren
Welch
Wyden
The conference report was agreed to.
The PRESIDING OFFICER (Ms. Hassan). The majority leader.
Mr. SCHUMER. I ask unanimous consent that the cloture motions filed
during Monday's session ripen at 12 noon tomorrow, Tuesday, December
14.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
____________________