[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for the quorum call be rescinded.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.
____________________