[Congressional Record Volume 170, Number 67 (Wednesday, April 17, 2024)]
[Senate]
[Pages S2799-S2802]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  REFORMING INTELLIGENCE AND SECURING AMERICA ACT--MOTION TO PROCEED--
                               Continued

  Mr. SCHUMER. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                   Recognition of the Minority Leader

  The Republican leader is recognized.


                               H.R. 7888

  Mr. McCONNELL. Mr. President, as I discussed earlier this week, 
critical national security authorities under the Foreign Intelligence 
Surveillance Act are set to expire in 2 days. Today, I would like to 
briefly address the newest red herring being raised in opposition to 
reauthorizing section 702.
  The reauthorization that passed the House contains scores of 
important reforms to the FISA process that will enhance accountability 
at the FBI and protect the rights of American citizens. It also 
included a necessary fix to the way we authorize the government to 
lawfully collect communications from foreigners located overseas for a 
specific intelligence purpose.
  As part of the standard judicial oversight of the 702 process, the 
intelligence community has been restricted in what kinds of technology 
counts as ``electronic communications service providers'' under the 
statute. When section 702 was written, the internet was in the Dark 
Ages compared to how it exists today. Clearly, social media and 
internet communications usage has changed dramatically since the 
earliest days of Twitter and so have the technical mechanisms by which 
massive packets of data transit the internet.
  As the internet evolved, the FISA Court did not allow the DOJ, on its 
own, to expand the definition of a provider to meet the new realities 
of contemporary technology. This created a critical, unintended gap in 
our collection ability against overseas foreign targets.
  Here is the good news: The House did on a strong bipartisan basis 
what legislatures should do. In fact, a majority of the majority and a 
majority of the minority voted to change the statute to make sure that 
our collection ability on foreigners overseas reflects the reality of 
modern communication. It was a simple fix to update the law to respond 
to technological change.
  But to listen to the Chicken Littles on the left, the sky is falling. 
The ACLU says this will expand warrantless surveillance and strongly 
implies that it will do so against Americans as they go about their 
daily lives.
  Demand Progress--an activist arm of Arabella Advisors--says 
``everyone is a spy'' under this provision.
  Well, excuse me if I don't take my cues from liberal court-packers. 
This could not be further from the truth. The House bill's simple fix 
does nothing--nothing--to change who gets targeted by section 702: 
foreigners overseas whose communications are likely to return important 
intelligence.
  The FISA appellate court affirmed this in a decision that predated 
the legislative fix, saying:

       Under section 702 the Government is prohibited from 
     intentionally targeting any person known at the time of 
     acquisition to be located in the United States.

  Even foreigners located in the United States. Even foreigners 
operating illegally in the United States.
  The court went on, saying:

       Customers using WiFi access provided by a cafe or library, 
     for example, would not be targeted under Section 702, 
     regardless of whether the Internet connectivity being 
     provided is considered an ``electronic communications 
     service.''

  Let me say that again. They ``would not be targeted under Section 
702,'' nor, contrary to the fears of some of our colleagues, would U.S. 
persons be at risk of drone strikes as they surfed the internet on 
public internet networks.
  Nothing has been expanded. Section 702 still rightly only applies to 
foreigners overseas. All that the House did was fix a dangerous 
loophole that would have allowed our foreign adversaries to escape the 
reach of our intelligence services.
  Trust but verify, right? Well, this bill helps us do precisely that. 
It includes significant reforms that dramatically enhance transparency 
into how section 702 is used by the intelligence community. It includes 
important reforms to prevent misuse of the authority and require 
accountability for any such misuse, including new civil and criminal 
penalties.
  I would urge my colleagues to look at the facts of this latest 
fearmongering crusade, to soberly examine the same classified material 
our House colleagues read that explains this provision in detail, to 
reject hyperbole and lies, and to take action to secure the homeland.


                            Border Security

  Mr. President, now on a different matter, ``[W]e do have a plan to 
address migration at the southern border. We're executing it . . . and 
we're starting to see the results.'' Well, those were the words of the 
Secretary of Homeland Security after the Biden administration had been 
in office for 8 months, but in the past 3 years, they have taken on an 
altogether greater significance.
  The administration's ``plan to address migration''? It turns out 
their plan was exactly what then-Candidate Biden pledged on the debate 
stage: to surge migrants to the border.
  How they did execute it? By slashing the previous administration's 
commonsense border security policies. No more ``Remain in Mexico.'' No 
more border wall construction.
  As Secretary Mayorkas bragged back in 2021, the Biden administration 
had repealed so many border enforcement tools that ``it would take so 
much time to list them.''
  How about that last part: ``[W]e're starting to see the results.'' 
Since this administration took office, the surge in illegal arrivals at 
the southern border has set and broken new alltime records several 
times over.
  CBP personnel have worked overtime to contend with a humanitarian and 
security crisis. Yet, for years, the Biden administration's top concern 
about the border was not calling it a crisis.
  Again: ``[W]e do have a plan to address migration at the southern 
border. We're executing it . . . and we're starting to see the 
results''--results, indeed, in the form of a tragic, painful, and 
unnecessary crisis.
  Today, it falls to the Senate to determine whether and to what extent 
Secretary Mayorkas enabled and inflamed this crisis.
  Under the Constitution and the rules of impeachment, it is the job of 
this body to consider the Articles of Impeachment brought before us and 
to render judgment.
  The question right now should be how best to ensure that the charges 
on the table receive thorough consideration, but instead, the more 
pressing question is whether our Democratic colleagues intend to let 
the Senate work its will at all.
  Tabling Articles of Impeachment would be unprecedented in the history 
of the Senate. It is as simple as that. Tabling would mean declining to 
discharge our duties as jurors. It would mean running both from our 
fundamental responsibility and from the glaring truth of the 
recordbreaking crisis at our southern border.
  I, for one, intend to take my role as a juror in this case seriously, 
and I urge my colleagues to do the same.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

[[Page S2800]]

  



                          Mayorkas Impeachment

  Mr. THUNE. Mr. President, 7,633,650, that is the number of migrant 
encounters at our southern border since President Biden took office--
7,633,650. The situation at our southern border is out of control. We 
have had three--three now--successive years of recordbreaking illegal 
immigration under President Biden, and we are on track for a fourth.
  There have been more than 1.3 million migrant encounters at our 
southern border since October 1 of last year, which was the start of 
this fiscal year. That is 1.3 million, just since October 1 of last 
year. And that number just refers to individuals who are actually 
apprehended. There have been almost 150,000 known ``got-aways'' so far 
this fiscal year, and those are individuals the Border Patrol saw but 
were unable to apprehend. Often, we see migrants turning themselves in 
to authorities, so it is especially concerning to know that so many 
individuals have purposely evaded interdiction. And of course, we don't 
know how many unknown ``got-aways'' there have been.
  U.S. Border Patrol Chief Jason Owens, in a March interview with CBS 
News, said the number of known ``got-aways'' is keeping him up at 
night. That is ``a national security threat,'' he noted. That is a 
quote. ``Border security is a big piece of national security,'' he goes 
on to say. ``And if we don't know who is coming into our country, and 
we don't know what their intent is, that is a threat and they're 
exploiting a vulnerability that's on our border right now.''
  That, again, from Jason Owens, U.S. Border Patrol Chief.
  Well, the situation at our southern border right now is a national 
security threat. There is no question that the kinds of numbers we are 
seeing smooth the way for dangerous individuals to enter our country. 
During fiscal year 2023, 169 individuals on the Terrorist Watchlist 
were apprehended trying to cross our southern border--more, I might 
add, than the previous 6 years combined--and that is just the 
individuals, again, who were actually apprehended. With somewhere 
around 1.8 million known ``got-aways'' since President Biden took 
office and an untold number of unknown ``got-aways,'' I think we can 
safely assume that there are plenty of dangerous individuals making 
their way into our country without being stopped.
  While there are always various factors that affect the flow of 
illegal immigration, we are on track for a fourth recordbreaking year 
of illegal immigration under the Biden administration because of the 
actions that President Biden has taken or failed to take. From the day 
he took office, when he rescinded the declaration of a national 
emergency at our southern border, President Biden made it clear that 
border security was at the bottom of his priority list. And over the 3 
years since, he has turned our southern border into a magnet for 
illegal migration from repealing effective border security policies of 
the Trump administration to abusing our asylum and parole systems, 
which are now providing temporary amnesty to hundreds of thousands of 
individuals here illegally, which brings me, Mr. President, to today.
  In just a few minutes, the Senate will be sworn in to consider the 
Articles of Impeachment against Homeland Security Secretary Mayorkas, 
one of the chief architects of the Biden administration's lax border 
security regime. And we expect that the Democrat leader will move 
almost immediately to dismiss the charges. At most, we expect a few 
hours of process with no examination of the evidence the House has 
collected and essentially no consideration of the serious charges 
before us.
  Whether or not Senators ultimately decide that Secretary Mayorkas's 
actions warrant a conviction, they should be given the time to actually 
examine the charges. In a courtroom, a case is not dismissed without 
the court taking the time to examine the facts, and the Senate, sitting 
as a Court of Impeachment, should be no different. The Senate should be 
having a full trial and taking the time to examine the evidence that 
the House has collected, and then Senators should be able to vote 
guilty or not guilty. Instead, the Senate leader is set to sweep these 
charges under the rug. It is just more evidence of the fundamental 
unseriousness Democrats have shown when it comes to the raging--
raging--national security crisis at our southern border.
  By the end of the day, the Democrat leader may well have effectively 
made these charges disappear, but there is nothing that the Democrat 
leader can do to obscure the failures of Secretary Mayorkas and 
President Biden. Thanks to their refusal to secure the border, we have 
experienced three now successive years of recordbreaking illegal 
immigration, and, unfortunately, there is no end in sight.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                               H.R. 7888

  Mr. WARNER. Mr. President, I rise today as a Senator from Virginia 
and, more importantly, as Chairman of the Intelligence Committee, in 
support of the Reforming Intelligence and Securing America Act, H.R. 
7888, which passed the House earlier this week, with a 273-to-147 
broad, bipartisan support.
  Section 702 of the Foreign Intelligence Surveillance Act, FISA, which 
a lot of this debate is focused on, is a critical source of foreign 
intelligence. It is indispensable to the work that the men and women of 
our intelligence community, and many others, do every day to protect 
our national security.
  Section 702 authorities have enabled the IC to thwart terrorist 
attacks, track foreign spies, uncover economic espionage, impede 
weapons proliferation, protect U.S. troops, expose human and drug 
trafficking, prevent sanctions evasion, and disrupt foreign cyber 
attacks--a whole litany of the responsibilities of the IC.
  Just to demonstrate how important these capabilities are to our 
national security: 60 percent--60 percent--of the items that appear in 
the President's daily intelligence brief actually are sourced to 
information obtained pursuant to section 702.
  In the public domain, there are many examples of the value of section 
702. These include when section 702 contributed to a successful 
operation against one of the last remaining 9/11 architects, Zawahiri; 
section 702 coverage that identified evidence of an al-Qaida courier in 
Pakistan with imminent plans to detonate explosives on subway tracks in 
Manhattan and, through that surveillance, was able to prevent the 
attack; section 702 identified the hackers responsible for the 2021 
ransomware attack on Colonial Pipeline that crippled fuel supplies 
across the east coast and enabled the United States to recover 2.3 
million in paid ransom.
  Secretaries of Defense, Directors of National Intelligence, and many 
other Cabinet officials from both the current and the former 
administration have spoken out on the vital importance of ensuring that 
section 702 does not lapse.
  To quote the President's intelligence advisory board:

       If Congress fails to reauthorize Section 702, history may 
     judge the lapse of . . . 702 authorities as one of the worst 
     intelligence failures of our time.

  Quite honestly, that is what we are looking at if we don't get this 
done.
  Nonetheless, as we indicated, we just find ourselves just hours away 
from a possible sunset of this critical authority, which sunsets Friday 
night at midnight.
  Now, some Members have argued that because the FISA Court recently 
approved new certifications, there is no urgency to reauthorize the 
law. Those claims are both misguided and dangerous.
  In the event of a statutory lapse, some providers--American companies 
who are working with us--are likely to stop or reduce cooperation, 
perhaps with existing targets of collection but especially with new 
ones.
  We know this can happen because it is exactly what happened when a 
similar lapse occurred following the expiration of section 702's 
predecessor statute: the Protect America Act.
  Now, to be fair, it is also true that section 702 is in need of some 
reforms.

[[Page S2801]]

And myself, Senator Rubio, 16 Members, bipartisan, have sponsored the 
Senate version of this bill, have pressed for additional reforms to 
protect the civil liberties of Americans while still preserving the 
core values of the program and protecting American national security.
  In recent years, a key oversight focus has been on the number of 
queries of section 702 information. Section 702 is a database. There 
are a series of databases. You can sometimes query that database within 
certain protections.
  Now, the focus is focused on particularly those queries performed by 
the FBI and involving U.S. persons. There is no dispute that, for too 
long, the FBI query practices were sloppy.
  For a time, as recently as 2019, more than 3 in 10 of the FBI queries 
were noncompliant. That means, literally, 30 percent of the time, the 
FBI was not even following their own procedures. The FBI took too much 
time to implement needed reforms. But, finally, in 2022 and 2023, it 
implemented comprehensive reforms that have proven effective and 
dramatically improved the query compliance rate from 70 percent to over 
90 percent. That means less than 1 percent of these queries fall 
outside of the reform practices the FBI has put in place.
  What do these reforms include? Maybe one of the most important ones 
is that rather than, by default, FBI agents query a series of 
databases. In the past, they would have to opt out of querying the 702 
database. Now they have to opt in and make the case that they need that 
for national security purposes.
  Another reform that has been put in place is there was a series of 
actions in the past called ``batch queries.'' A group of people might 
be arrested and suddenly you are querying a whole batch of them. Those 
batch queries have been dramatically diminished. At the same time, 
there are new reforms that require the FBI leadership to improve 
sensitive queries of politicians, journalists, and religious leaders. 
Literally, it has to be the Director of the FBI, the Deputy Director, 
or the head of the National Security Agency.
  The bill before us--which, again, we had preconferenced most of this 
with the House--this is the House bill we will be taking up later this 
week. The bill before us now codifies these reforms, ensuring that a 
future President, Attorney General, or FBI Director cannot simply walk 
them back. When we pass this legislation and it is signed, these 
reforms will become the law of the land.
  In addition to the reforms I already talked about, the bill we are 
debating goes even further. It also includes significant new 
protections for U.S. person queries, including a complete prohibition 
on queries solely used to find evidence of a crime, as was unanimously 
recommended by the President's Intelligence Advisory Board.
  The bill also increases transparency of FISA Court proceedings, going 
so far--this was added in the House--as to allow Members of Congress 
and their staffs to attend court hearings. We have heard on this floor 
and before and the House many times: We don't know what is going on in 
the FISA Court hearing. Now, if a Member of Congress wants to sit in or 
send their staff, they will be able to do that.
  This legislation also enhances reporting requirements from both the 
Bureau and the intelligence community and creates an ongoing reform 
commission to recommend further FISA reforms. The truth is, section 702 
is already the most regulated and closely overseen intelligence 
authority of any we have in this country and, frankly, in countries 
around the world. If enacted, the reforms included in this bill would 
be the most comprehensive set of reforms ever enacted in the statute's 
history. We often reform this every 5 years or it had to be 
reauthorized. This set of reforms are much more sensitive than actions 
in the past.
  I would like to speak briefly on two issues that have been the 
subject of considerable debate. First, some have suggested that we 
should impose a warrant requirement on U.S. person queries. Let me 
again be clear. A warrant requirement for U.S. person queries would do 
grave damage to national security. The FBI and other Agencies have 
relied on U.S. person queries of section 702, as I enumerated earlier, 
to prevent terrorist attacks, investigate cyber attacks, prevent 
assassination plots, and to disrupt narcotics trafficking.
  Many of these successes would not have been possible if the 
government was required to obtain a warrant for U.S. person queries, 
and significant intelligence would be lost. Why is that so hard to put 
in place? Think about this for a moment. A warrant requirement requires 
a ``probable cause'' that the subject of the query is an ``agent of a 
foreign power.'' The truth is--I remember talking with the Presiding 
Officer about this--the majority of times that an American person is 
queried is not because we suspect them to be an agent of a foreign 
power but because they have been a victim, oftentimes, of a cyber 
attack. Even the most fervent advocate of a warrant has not been able 
to explain if you are trying to contact the person who has been a 
victim of a cyber attack, there is no way you could get a probable 
cause showing that that person is an agent of a foreign power. That 
agent is a victim of a foreign power. The warrant requirement could not 
meet the notification requirements put in place. The idea that we could 
simply contact the person--well, that does not pass the smell test.
  Sometimes this gets complicated. I spent a lot of time trying to get 
this. Let me give you a couple of theoretical ways that this warrant 
requirement, I believe, falls short.
  Let's say that the intelligence community is aware that Iran is 
planning a cyber attack against a U.S. victim--maybe even a victim that 
would sit in this Chamber. In that case, the intelligence community may 
want to query whether it has intelligence collected against Iran for 
when Iran or their agents are talking about that American so that we 
could actually get the full exposure to make sure that we both do 
victim notification and also preclude future attacks. These queries 
would serve to protect the victim, not investigate them. But it would 
never be possible to establish, as any warrant application would 
require, probable cause that the victim is an ``agent of a foreign 
power'' because they are not; they are a victim.
  Let me give you another example. Assume the United States apprehends 
a known foreign terrorist overseas. On that person--I point this out to 
the Presiding Officer--there is a phone number, and it is a 303 area 
code. We don't know whether that phone number is a real number, whether 
it is a number of an American, or whether it is a number of a foreigner 
because as the Presiding Officer knows, somebody might have been a 
foreigner, gone to Colorado, gone to Denver, bought a phone and carries 
that phone with him forever. The idea that you could get a warrant of 
probable cause on the basis of that phone number alone, again, does not 
pass the smell test. It cannot happen.

  The truth is, as well, someone said we will give you an exemption for 
exigent circumstances. The process will not work or will work in such a 
slow fashion that the use of this critical tool--60 percent of the 
intel the President reads every day comes from 702 intelligence. The 
truth is, it would take weeks or months to obtain an order from the 
FISA Court during the time which that guy--let's go back to the 
example. We arrested a terrorist with a 303 area code. You are going to 
wait weeks before you can even query that phone number to see if it is 
a real number, an American, a foreign person.
  Then, some say: Why don't you make the query, but we won't let you 
look at the results? Again, either one of those circumstances basically 
neuters the whole ability of 702 to work.
  Second issue. The House-passed bill includes an important amendment 
to the definition of electronic communications service providers, 
ECSPs, that address collection gaps caused by developments in internet 
and telecommunications technology since 702 was first written in 2008.
  Let me say, as somebody who spent a career in telecom, the world has 
dramatically changed in the telecom domain from 2008. This amendment, 
in terms of the definition, is, again, focused on this current 
intelligence gap. It still requires that the targeting that goes on in 
702 focuses on overseas non-U.S. persons. And contrary to what some 
Members literally said on the floor of the Senate, this technical 
amendment that was added in the

[[Page S2802]]

House specifically excludes coffee shops, bars, restaurants, 
residences, hotels, libraries, recreational facilities, and a whole 
litany of similar establishments.
  It would not, as some critics have maintained, allow the U.S. 
Government to compel, for example, a janitor working in an office 
building in Northern Virginia to somehow spy for the intelligence 
community. Nor would it allow, as some have absurdly claimed, States to 
use 702 to target women seeking abortions.
  First of all, State and local authorities don't even have access to 
all 702 data. Secondly, the law is and remains crystal clear on this 
point: 702 cannot be used to target U.S. persons domestically--period, 
full stop, no exceptions.
  The amendment, the ECSP amendment, was required because, as I pointed 
out earlier, the world of telecom changed dramatically since the law 
was first put in place 16 years ago. Keep in mind, back in 2008, when 
section 702 was first passed, we had pay phones on most corners, and 
the cloud was actually something that might cause rain rather than be a 
place where communication is often stored.
  In short, what happens here is that the government served a 702 
directive. And this is why this came about. And that American company 
said: We think your old definition of a service provider doesn't apply 
to us. And you know what? In litigation, that claim won, and the FISA 
Court specifically said we need to make sure that we update the 
definition. The House added that updated definition. I don't believe we 
should roll that back.
  This is not, as some have claimed, some broad expansion of 702 powers 
of jurisdictions. Again, I could get into the complexities of how there 
are some data centers, as has been reported in the press, that at 
certain times activity will take place in the data center that don't 
fall into the old definition of 2008. Do we really want that data to 
pass through the data center to be allowed to be lawfully collected? I 
think we do.
  Let me be the first to say that the House bill is not perfect. I 
think we should have gone for a 5-year reauthorization. The House-
passed was a 2-year reauthorization. I accept that. I think the reforms 
that were put in place will further protect. I go back to the earlier 
comments I made. We have gone from a 30-percent noncompliance of the 
FBI to less than 1 percent.
  (Ms. CORTEZ MASTO assumed the Chair.)
  Madam President, in terms of the warrant requirement, you are never 
going to get a probable cause warrant if the individual who is being 
queried is actually the victim of a crime. We sure as heck are not 
going to be able to get a warrant requirement met if you capture a 
terrorist--I will go from the 303 area code to, I think, Las Vegas is 
702. If you have to show, based upon that number alone, you have 
probable cause, you don't know who or what that number is until you do 
the query.
  And as I mentioned these last couple of moments, this new definition, 
this technical definition the House adopted--again, with an 
overwhelming bipartisan majority--is not an expansion that simply 
brings up the terminology around telecom providers up to 2024, which 
was different than 2008. The notion that we would allow this 
incredibly--in a sense, the crown jewel of our intelligence collection 
abilities to go dark as we simultaneously try to debate aid for Ukraine 
and Israel and humanitarian relief to Palestinians and Gaza, the idea 
we would suddenly go dark at this moment in time would be the height of 
irresponsibility.
  I know we have to get through this afternoon's proceedings, but I 
would strongly urge Members to join me in voting to pass H.R. 7888, 
without amendment, to make sure that we don't have a lapse.
  I know we made documents and individuals available in the SCIF, but 
if Members have questions, if Members have concerns, if Members here 
come to the floor and make other charges, please talk to me, talk to 
Senator Rubio, talk to anybody in law enforcement or the intelligence 
community. So many of the claims being made here just are not accurate 
in terms of what this bill is doing.
  I think this is a strong reform bill. I think it needs to get passed, 
and we need to not let this critical authority lapse.

                          ____________________