[Congressional Record Volume 170, Number 68 (Thursday, April 18, 2024)]
[Senate]
[Pages S2833-S2837]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LEGISLATIVE SESSION
______
REFORMING INTELLIGENCE AND SECURING AMERICA ACT--MOTION TO PROCEED--
Resumed
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to H.R. 7888,
which the clerk will report.
The senior assistant legislative clerk read as follows:
Motion to proceed to Calendar No. 365, H.R. 7888, a bill to
reform the Foreign Intelligence Surveillance Act of 1978.
Recognition of the Majority Leader
The ACTING PRESIDENT pro tempore. The majority leader is recognized.
Mayorkas Impeachment
Mr. SCHUMER. Madam President, yesterday, the Senate set a very
important precedent that impeachment should be reserved only for high
crimes and misdemeanors and not for settling policy disagreements.
That is what is the impeachment against Alejandro Mayorkas was from
the start: a policy dispute, frankly, to help Donald Trump on the
campaign trail. It did not meet the high standard required by the
Constitution to remove someone from office. I am very glad the Senate
worked its will to set these charges aside. The prudence and cool
judgment the Senate showed yesterday is what the Framers would have
wanted. They didn't want impeachment to be used for every policy
dispute--when you don't agree with a Cabinet minister or Cabinet
secretary, you impeach them. That would have created chaos in the
executive branch and here in the Senate, because the House could just
throw over impeachment after impeachment; and if you have to have a
whole big trial on every one of them, the Senate could be ground to a
halt.
So let me repeat what I said yesterday. We felt it was very important
to set a precedent that impeachment should never--never be used to
settle policy disagreements. We are supposed to have debates on the
issues, not impeachments on the issues.
Let me repeat that; it is such an important concept, and I am so glad
we stood firm yesterday: We are supposed to have debates on the issues,
not impeachments on the issues. We are not supposed to say that
whenever you disagree with someone on policy, that that is a high crime
and misdemeanor. Can you imagine the kind of chaos and damage that
would create? As I said, the House could paralyze the Senate with
frivolous trials, particularly when one party had the House and the
other had the Senate. It would degrade Government, and it, frankly,
degrades impeachment which is reserved--rarely--for high crimes and
misdemeanors.
To show how unprecedented what the House did was, no Cabinet
Secretary has been impeached for over--since--I think it was 1867. And
even in that case, he resigned before the trial. It was never intended
to happen. But, unfortunately, the hard, radical right in the House is
just so intent on paralyzing government, creating chaos in government,
even destroying government, that they don't care. But we in
[[Page S2834]]
the Senate on our side of the aisle did care. My guess is a lot of my
colleagues on the other side of the aisle cared too.
If my colleagues on the other side want to talk about immigration,
Democrats welcome that debate--welcome it. We should debate border
bills, like the ones Republicans blocked here on the floor. That is how
you fix the border--with bipartisan legislation. Impeachment would have
accomplished nothing.
H.R. 7888
Now, Madam President, on FISA, today, the Senate will vote on cloture
on the motion to proceed to the FISA reauthorization bill sent by the
House earlier this week. This is a very important procedural vote. I
urge my colleagues on both sides to show strong support for moving
forward on this bill.
Now, we obviously don't have a lot of time left before FISA
authorities expire--in fact, less than 2 days--but we will try as hard
as we can to get FISA reauthorization done today. If not, Members
should expect we will have votes tomorrow.
National Security Supplemental Funding
Madam President, on the supplemental and on Ukraine, today, the House
will keep working on national security supplemental funding. Yesterday,
the House released legislative text, and I will continue to monitor
closely what our House colleagues do in the coming days. I hope that
President Biden will soon have on his desk long-awaited funding to
support our friends in Ukraine and Israel and the Indo-Pacific and aid
for innocent civilians in need of humanitarian aid in Gaza and around
the world.
Senator Booker has told us stories about the starvation in Darfur and
how much worse it would become if we don't get the aid. So the time for
House inaction has long been over.
This afternoon, it will be my honor to meet with Ukrainian Prime
Minister Denys Shmyhal, who is here to push for more funding for
Ukraine. I will tell the Prime Minister the same thing I told President
Zelenskyy when I was in Ukraine about a month ago: America will not
abandon you. Your cause is our cause, and we are working day and night
to finally deliver to you the aid you need to defeat Vladimir Putin's
evil forces.
The one word to describe what the House needs right now is urgency--
urgency. I remember, during my visit to Ukraine, standing in front of
the cemetery in Lviv dedicated to the war dead. Not long before our
visit, that grave site was a parking lot in the middle of Lviv, but it
was converted to a cemetery after the city ran out of space to bury
casualties. And even as we stood there--even as we observed a moment of
silence--a few yards away, I could see workers digging even more holes
in the ground to prepare for more casualties they knew would come.
Worst of all, many of these brave soldiers died because they didn't
have the supplies and ammunition they needed.
I wish I could say the Ukraine war effort has not suffered due to
American inaction, but that would not be true. As the Wall Street
Journal noted yesterday, ``Ukraine's Chances of Pushing Russia Out Look
Increasingly Grim.'' And why did they say that? Well, it is because the
House has continued to drag its feet in sending funding for ammo and
air defenses and other basic supplies. I hope that changes, at last, in
the coming days.
Micron
Now, Madam President, on the good news front--my front--today is the
dawn of a new day in Syracuse and in all of Upstate New York. I am
proud to announce that Micron is expected to receive $6.1 billion from
my Chips and Science law to support its chip megafab project in Central
New York and its expansion in Idaho.
This multibillion-dollar award is one of the largest single, direct
Federal investments in Upstate New York's history. It is a landmark
announcement for Syracuse and all of Upstate New York and for the
Nation. It will create 50,000 new, good-paying jobs in New York alone
and propel Micron to reach its goal of investing over $100 billion to
make advanced memory chips here in the United States.
We have had other chip fab announcements--they are all good; I
welcome all of them--but this one is the first for memory chips, and
memory chips are becoming more and more important because they are the
basic chip used in AI, and AI is expanding all over the place.
So I am glad about this announcement. We are rebuilding Upstate New
York with good-paying middle-class jobs one microchip at a time.
Micron is the leading manufacturer of memory chips, which are
critical to everything from cell phones to cars to AI. And this major
chips investment is making possible the largest and one of the most
advanced memory chip projects in the United States and even in the
world, and it is critical to our national security and competitiveness.
With this investment and the hundreds of billions of other
transformational chips investments by Intel, TSMC, Samsung,
GlobalFoundries, and more, we are bringing manufacturing back to
America. We are shoring up our supply chains to prevent shortages and
high prices, and we are strengthening our national security.
I worked really hard to write and pass the Chips and Science Act into
law, with the goal of bringing advanced manufacturing to the United
States as my guiding light--and not just communities in New York but
communities everywhere: Arizona, Idaho, Texas, Ohio. These are the
places where the story of American innovation will be written this
century.
And speaking about my own home State--and I am wearing my orange tie
today for Syracuse--I had communities like Syracuse and other Upstate
New York communities in mind when I wrote Chips and Science, and I made
sure they would be the ones celebrating these types of investments, not
far off places in countries like China. We want these chips made in
Syracuse, not in Shanghai.
I am proud that this $6 billion investment delivers on my promise to
Micron and makes the promise of the Chips and Science Act a reality. It
is not just a once-in-a-generation investment; it is a once-in-a-
lifetime investment. It was a long, hard-fought battle to get Chips and
Science done. It took us 4 years, as we had to persuade the House of
Representatives how important it was, but this announcement proves that
the hard work and persistence is paying off. We still have a long way
to go, but we are one step closer to securing America's future as a
leader in the global semiconductor industry.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Madam 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.
National Security Supplemental Funding
Mr. McCONNELL. Madam President, I would like to begin by addressing
the urgent national security supplemental that is still pending over in
the House of Representatives.
Opponents of this urgent investment in American strength have taken
to clothing their objections in the false mantle of realism, and, at
first glance, this would appear to be a rhetorically savvy move. After
all, who would admit to being unrealistic? Who would willingly say that
their policies and their world view don't reflect the world as it is?
But, as our Nation faces the most dangerous moment in a generation, it
is worth examining this claim in a bit more detail.
The concept of realism has an academic meaning that refers to a
specific set of assumptions about how states interact. The realist
school of thought, at its core, contends that states act alone in a
perpetual competition, constantly assessing the balance of power with
their adversaries and seeking to maximize their own security and
relative influence.
As the ancient Athenians put it, ``the strong do what they can, and
the weak suffer what they must.''
In a sense, as some of the most vocal opponents of the supplemental
like to point out, realists don't have time for morality tales or sappy
appeals to universal values. The world is an uncaring place, and so-
called realists are concerned with cold, hard national interests. Well,
as luck would have it, so am I.
None of the tenets of academic realism actually preclude our
colleagues
[[Page S2835]]
from vigorously supporting the supplemental--quite the opposite.
Consider the investments we are talking about making: rebuilding
American hard power and growing our domestic industrial capacity to
sustain it; in the process, helping to decimate the hard power of a
major adversary at almost no risk to U.S. forces; deterring further
challenges to a balance of power favorable to American interests;
preserving and expanding our relative influence with other states;
helping our friends and hurting our enemies; and successfully rallying
these friends and allies to share the burden of balancing against
competitors who seek to undermine the United States and the West.
Academic realism doesn't conflict with our efforts in the
supplemental, and neither does simple reality. Being realistic and
rejecting fanciful idealism means recognizing that we are facing the
greatest, most coordinated security challenges since the Cold War.
In Europe, a neo-Soviet imperialist is threatening the stability of
some of America's closest allies. Europe is the largest consumer of
American products and the largest foreign direct investor in America.
Instability in Europe is bad for business.
In the Middle East, backward theocrats are orchestrating terrorist
attacks on Americans as well as our friends and racing to produce a
nuclear weapon. Their vassals are disrupting the freedom of
navigation--the lifeblood of our economy--with near impunity.
And in the Pacific, the People's Republic of China is pulling every
lever to undermine America's power and dominate its hemisphere and
beyond, from massive military expansion and predatory economic coercion
to psychological manipulation, intellectual property theft, and the
supply chain that pumps lethal poison across our borders.
So it would be utterly unrealistic to pretend that America can afford
to delay an urgent, comprehensive investment in the hard power required
to meet all these threats. The mushy moralism here is pretending to
care more about brave Ukrainian war dead than the Ukrainian people do
themselves.
The naive ideology is thinking that Russian revanchism is somehow
connected to Christian values, in spite of clear evidence that Putin
has corrupted the Russian Orthodox Church and is actively repressing
Christians both at home and in conquered territories. The plain fantasy
is saying that the challenges we face abroad will wait patiently while
we attend to our own domestic affairs.
Here is the diplomatic reality: Putin has said publicly there is no
sense negotiating with an opponent who is running out of ammunition.
Anyone who wants a negotiated end to this conflict should also want
Ukraine to have as much negotiating leverage as possible.
Here is the political reality: If you think the fall of Afghanistan
was bad, the fall of a European capital like Kyiv to Russian troops
will be unimaginably worse. And if stalled American assistance makes
that outcome possible, there is no question where the blame will land--
on us.
Neglecting threats doesn't make them go away; it just guarantees
unpreparedness when they strike.
I am reminded of the late Republican from Michigan, Arthur
Vandenberg, a staunch anti-interventionist in the years leading up to
the Second World War. As Senator Vandenberg wrote in his diary after
the attack on Pearl Harbor, ``That day ended isolationism for any
realist.''
Needless to say, it shouldn't take an attack on the homeland for
American leaders to uphold their responsibilities and provide for the
common defense. The clear and present danger is just that: It is clear;
it is present; and it will grow if we do not act.
For those of us who see the world clearly, this isn't a question of
realism versus idealism. Right now, what America should do also happens
to be what we can do. We can grow a defense industrial base capable of
sustaining both U.S. forces and our allies and partners. We can help
degrade one adversary while strengthening deterrence against others. We
can start investing seriously in rebuilding the hard power that a
secure and prosperous nation requires--not only can we; we must.
Anti-Semitism
Madam President, now on another matter, the past 6 months have shown
an uncomfortably bright light on the moral rot festering on America's
university and campuses.
Just yesterday, the president of Columbia hedged when asked whether
chants of ``from the river to the sea'' and ``long live the intifada''
are properly considered anti-Semitism. This comes after numerous
incidents on her campus, including a student club president issuing an
email that read:
White Jewish people . . . today and always have been the
oppressors of all brown people.
[And] when I say the Holocaust wasn't special, I mean that.
Of course, the light of truth doesn't discriminate, and it has
uncovered much more than an alarming taste for the world's oldest form
of hate.
Last month, a Federal judge found that an assistant professor at
Harvard Medical School had committed plagiarism in a report submitted
on behalf of plaintiffs in a class action lawsuit.
If this weren't enough, Harvard's office for Equity, Diversity,
Inclusion, and Belonging recently announced they will host racially
segregated ``affinity celebrations'' during their 2024 commencement.
These are the institutions that President Biden wants working
Americans to underwrite? These are the degrees that President Biden
wants taxpayers to subsidize?
Last summer, the Supreme Court ruled that the President's initial
attempt at student loan socialism was unconstitutional. Nevertheless,
Washington Democrats continue to double down.
Earlier this week, the Biden administration proposed yet another
nearly $150 billion round of student loan transfers. That is on top of
more than $150 billion they have already rolled out. At a most basic
level, the proposal betrays a staggering disdain for working
Americans--both those who have paid off their debt and those who opted
not to take on the debt in the first place. It will transfer the loans
of the highest earning members of Washington Democrats' base to working
taxpayers. And it has already driven up tuition costs for future
students.
But the Biden administration has made it pretty clear that they don't
care about future students. Just look at the way they are handling the
current round of FAFSA applications. Last week, the Education
Department admitted that its own data and processing errors had
compromised up to 30 percent of the Federal financial aid applications.
Just as prospective students and their families are facing enrollment
deadlines, Washington Democrats apparently couldn't care less whether
prospective students make informed decisions. Apparently, hefty tuition
costs don't matter much if taxpayers will be the ones ultimately
footing the bill. Well, I expect that working Americans across the
country will have something to say about this in the fall.
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. WARNER. Madam 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.
Unanimous Consent Agreement
Mr. WARNER. Madam President, I ask unanimous consent that the
mandatory quorum call with respect to the cloture motion on the motion
to proceed to H.R. 7888 be waived.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
H.R. 7888
Mr. WARNER. Madam President, I have come back to the floor today to
reprise some of the things I said yesterday but, hopefully, to add some
more color on an issue that has literally popped up in the last few
days.
I start with the premise that we have a big, big question in front of
us this afternoon and tomorrow: whether we are going to go ahead and
continue maintaining the intelligence community and its most powerful
tool, section 702. So I rise in support of the Reforming Intelligence
and Securing America Act, H.R. 7888, which we will be voting for
cloture on in a few short moments.
As I shared with my colleagues yesterday, no other law is more
important
[[Page S2836]]
to the work of the intelligence community than section 702 of the
Foreign Intelligence Surveillance Act. Section 702--I enumerated all of
the ways it has been used, whether that is thwarting terrorist attacks,
dealing with weapons of proliferation, stopping foreign cyberattacks,
dealing with fentanyl trafficking; but the key point to remember is
that 60 percent of the intelligence that is provided in the President's
daily brief--not only under this President but former Presidents as
well--comes from products of 702.
It is hard to overstate either the importance of this law or,
frankly, the gravity of allowing it to sunset. Yet we are 36 hours away
from that happening.
Now, I understand that some of my colleagues would like to amend the
House-passed bill and continue the process of debate and negotiation.
Listen, there are things I would like to change in the House bill as
well, but the reality is that we are out of time. The choice before
us--and as we think about amendments, this is the case--is pass this
bill or allow 702 to sunset.
I have to tell you, as we follow all of the ups and downs of the
House, if anyone thinks that amending this bill and returning it to the
House will somehow yield a better agreement that has eluded us,
literally, for the last 5 or 6 years on this very contentious issue, I
don't think that is a realistic assumption. But what it will do if we
send it back to a House that is entwined with leadership issues and the
whole question of whether the national security provisions will be
voted on and dealt with this weekend--what it will do if we were to
amend and send it back to the House: It will invite a sunset, an
unspeakable outcome that the President's own Intelligence Advisory
Board has said will be remembered as one of the worst intelligence
failures of our time.
We all know, as we assemble here today, Israel is at war with Hamas,
we potentially have not only a regional but, potentially, a global
conflict with Iran, our allies in Ukraine endure repeated Russian
military bombardments. I just came from a broadly bipartisan biotech
roundtable where expert after expert pointed out what China was doing
and how much we have got to do to keep up and catch up. The idea that
we would, in effect, almost go out of the intelligence business at this
moment in time is extraordinarily dangerous.
So I know we will have the overall bill discussions and we will have
discussions about why something that sounds, on its surface--a warrant
provision, which I have said yesterday and I will repeat for
colleagues--over half the times an American is queried in the 702
database, they are a victim of a crime--not someone that you would show
probable cause has done something wrong but, oftentimes, the victim of
a cyber crime.
Or if not, the question I raised yesterday, we arrest a terrorist in
Paris, we have got a different Presiding Officer, and that terrorist
has a 213 area code number in their pocket--we don't know whether that
is a real phone number. We don't know if it goes to an American, goes
to a foreign person. But the warrant requirement would require, before
you could even query--and I get my friend the Senator from Illinois,
Dick Durbin. He has a slightly different variation on this--you would
be allowed to query that phone number. Remember, this comes off of a
known terrorist. But you wouldn't be able to look at the results unless
you could show probable cause.
They will say that we can have an expediency requirement, but the
idea that we would potentially put this into a FISA proceeding that
could take days or weeks, I think, is very dangerous.
But I would like, again, to use the remainder of my time to discuss
one provision of the bill--a technical amendment that was added in the
House to the definition of an ``electronic communication service
provider''--that has drawn considerable scrutiny and has been the focus
of many of my colleagues' appropriate questions. It is important that
the Members have a complete understanding of this provision that is
grounded in fact and not distorted by, frankly--with some of the
outside groups--what are, frankly, absurd distortions being raised by
some of its opponents.
The amendment does not, as some have suggested, allow the government
to spy on Americans at coffee shops or bars or restaurants or
residences or hotels, libraries, recreational facilities, and a whole
litany of other similar establishments. It would absolutely not, as
some critics have maintained, allow the U.S. Government to somehow
compel, for example, a janitor working in an office building in
northern Virginia to spy for the intelligence community or for your
housekeeper to somehow access your laptop at home. Nor would it ever
allow, as some have absurdly claimed, States to use 702 to target women
in terms of their healthcare choices.
If Members have questions about this amendment, I urge them to take
time to go through some of the classified information down in Senate
Security. And the Department of Justice will be on hand later today to
walk folks through why this technical amendment was added.
But let me talk about--my business for 25 years was in the telecom
sector. I know a little bit about what is trying to be accomplished
here. The law that was set up in 2008 was one world of
telecommunications and telecommunications networks. The world we live
in today, in 2024, is dramatically different. I said yesterday, in
2008, a cloud was something you had to worry about that might rain, not
a network of computer operations. As technology has evolved, so must
we.
The truth is, this amendment does not change the scope of 702; it
simply accounts for new technological advances since the law was first
written in 2008. It is not the first time we have had to amend certain
laws to account for new technologies, nor will it be the last.
As a reminder one more time, section 702 authorizes the intelligence
community to collect critical foreign intelligence about foreign
targets located outside the United States. Some of the ways we do that
is with compelled assistance of United States--American--electronic
communications service providers, or ECSPs.
Now, why has this suddenly now become such an issue? Well, one of
these communication providers--remember I talked about clouds, data
centers, how these networks come together and how network traffic is
intertangled at these data centers? One of these entities that
controlled one of those new enterprises that didn't exist in 2008 said:
Well, hold it. You can't compel us to work with the American Government
because we don't technically fit the definition of an electronic
communication service provider. And the fact was, the company that
raised that claim won in court. So what happened was, the FISA Court
said to Congress: You guys need to close this loophole; you need to
close this and change this definition. So that is where a lot of this
debate has come from.
Yesterday, as White House National Security Advisor Jake Sullivan
explained in a statement he released, the amendment is ``directly
responsive to encouragement from a federal appellate court to update
the definition of the private-sector companies with which the U.S.
Government can work, under supervision of federal judges and with
extensive oversight by four congressional committees, to obtain the
communications of non-Americans abroad.''
The National Security Advisor urged Members to ``reject
mischaracterizations'' of the amendment. He also reiterated that
``nothing in this amendment changes the fundamentals of Section 702,
which can be used to target for collection only the communications of
non-Americans located outside the United States.''
Now, one, I think the amendment could have been drafted better.
I have a letter here from the Attorney General which shares the view
and memorializing DOJ's narrow interpretation of this amendment.
Madam President, I ask unanimous consent that this letter be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of the Attorney General,
Washington, DC, April 18, 2024.
Hon. Charles E. Schumer,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Leader Schumer and Leader McConnell: As I testified
yesterday, I urge
[[Page S2837]]
the Senate to reauthorize Section 702 of the Foreign
Intelligence Surveillance Act (FISA) before it expires on
Friday. Section 702 is indispensable to our work to protect
the American people from cyber, nation state, terrorist, and
other threats.
Section 25 of H.R. 7888 includes language modifying the
definition of ``electronic communication service provider''
(ECSP). As I testified yesterday, this is a technical
amendment to address the changes in internet technology in
the 15 years since Section 702 was passed. It is narrowly
tailored and is in response to the Foreign Intelligence
Surveillance Court's identification of a need for a
legislative fix.
The attached April 17, 2024, letter from Assistant Attorney
General Carlos Felipe Uriarte, including the Department of
Justice's representations regarding the ECSP provision,
reflects my views and my strong support for the passage of
H.R. 7888.
Sincerely,
Merrick B. Garland,
Attorney General.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC.
Hon. Mark Warner,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Dear Chairman Warner: We are grateful that the Senate is
continuing to work on a bipartisan basis to extend Title VII
of the Foreign Intelligence Surveillance Act (FISA),
including Section 702, for an additional two years. Section
702 provides critical and unique foreign intelligence at a
speed and reliability that the Intelligence Community cannot
replicate with any other authority. The Intelligence
Community relies on Section 702 in almost every aspect of its
work, and the authority is essential to our national
security.
We urge the Senate to pass H.R. 7888 by Friday, April 19.
Doing so will prevent the lapse of this critical national
security tool and will impose the most comprehensive set of
reforms in the history of the Section 702 program.
As you are aware, Section 25 of H.R. 7888 includes
technical language modifying the definition of ``electronic
communication service provider'' (ECSP) to address unforeseen
changes in electronic communications technology. As Attorney
General Merrick Garland testified, this change ``is a
technical change. It's a consequence of internet technology
changing in the 15 years since FISA 702 was passed. It's
narrowly tailored. It is actually a response to a suggestion
from the FISA court to make--to seek this kind of legislative
fix. It does not in any way change who can be a target of
Section 702.'' This definition has not been updated since
2008 when Congress first enacted Section 702. The technical
modification is intended to fill a critical intelligence
gap--which was the subject of litigation before the Foreign
Intelligence Surveillance Court (FISC)--regarding the types
of communications services used by non-U.S. persons outside
the United States.
To address concerns some have raised about this amendment
to the ECSP definition, the Department of Justice
(Department) provides the following representations:
1. This technical change to the definition of ECSP does not
affect the overall structure of Section 702 or the
protections imposed on all aspects of the 702 program,
including the court-imposed legal procedures. The targeting
procedures under Section 702 strictly prohibit targeting
persons or entities inside the United States or Americans
anywhere in the world. The procedures further prohibit
``reverse targeting,'' which is collecting on foreigners
outside the United States for the purpose of obtaining the
communications of a person inside the United States or of a
U.S. person. Accordingly, it would be unlawful under Section
702 to use the modified definition of ECSP to target any
entity inside the United States including, for example, any
business, home, or place of worship. It would also be
unlawful to compel any service provider to target the
communications of any person inside the United States,
regardless of whether such a person is in contact with a non-
U.S. person outside the United States. Some critics have
falsely suggested that the amended definition of ECSP could
be used to conduct surveillance at churches or media
companies in the United States--this activity would be
legally barred under the rules governing targeting under
Section 702 and the prohibition against targeting anyone
inside the United States.
2. Further, the Department commits to applying this
definition of ECSP exclusively to cover the type of service
provider at issue in the litigation before the FISC--that is,
technology companies that provide the service the FISC
concluded fell outside the current definition. The number of
technology companies providing this service is extremely
small, and we will identify these technology companies to
Congress in a classified appendix. To protect sensitive
sources and methods, the ECSP provision in H.R. 7888 was
drafted to avoid unnecessarily alerting foreign adversaries
to sensitive collection techniques.
3. As you are aware, the government provides Congress with
a copy of all Section 702 directives issued to U.S.
electronic communication service providers. To facilitate
appropriate oversight and transparency of the government's
commitment to apply any updated definition of ECSP only for
the limited purposes described above, the Department will
also report to Congress every six months regarding any
applications of the updated definition. This additional
reporting will allow Congress to ensure the government
adheres to our commitment regarding the narrow application of
this definition.
Congress plays a critical role in the ongoing oversight of
the government's use of Section 702. We look forward to
continuing to work with Congress to reauthorize this critical
national security tool to protect our national security while
safeguarding privacy and civil liberties.
Sincerely,
Carlos Felipe Uriate,
Assistant Attorney General.
Mr. WARNER. In that letter, the Attorney General said:
[I]t would be unlawful under Section 702 to use the
modified definition of ECSP to target any entity inside the
United States including, for example, any business, home, or
place of worship.
Continuing:
It would also be unlawful to compel any service provider to
target the communications of any person inside the United
States--
And here we even go because 702 can't even be used to target
foreigners inside the United States. So, clearly, this provision would
not allow any communication provider to target a person inside the
United States, whether or not that person is in contact with a non-U.S.
person outside the United States.
Any of these tools are used to target foreigners outside the
boundaries of the United States. Let me be clear. The Department of
Justice has documented, in writing, that it would be unlawful to use
the ECSP definition to target any business, home, or place of worship
or to compel any provider to target communications of U.S. persons
inside the United States.
The letter goes on to state:
[T]he Department commits to applying this definition of
ECSP exclusively to cover the type of service provider at
issue in the litigation before the FISC--
That is the court that reviews these proceedings--
that is, technology companies that provide the service the
FISC concluded fell outside the current definition.
I also continue to quote from the Attorney General. This was needed:
To facilitate appropriate oversight and transparency of the
government's commitment to apply any updated definition of
ECSP only for the limited purposes described above, the
Department will also report to Congress every six months
regarding any applications of the updated definition.
So, despite arguments that you may have heard, Congress is going to
continue to have complete oversight of any use of this provision, and
any interpretation of the revised definition of ECSP must still be
approved by the FISA Court, an article III court comprised of
independent Federal judges. And the opinions of that court will be
available to Congress.
In addition, the legislation we are considering today reauthorizes--
again, we have to remember, what we are dealing with today in
reauthorizing section 702 is only for a mere 2 years. If Members have a
concern with how this law is implemented by the DOJ or interpreted by
the court, we will have the opportunity in just 24 months to address it
further.
I will also make clear that I am committed to working with any of my
colleagues who still have a concern with this provision to see if we
can improve the definition of the ECSP before the next sunset,
including through any legislative vehicle between now and then.
One thing we cannot do, however, is blind ourselves to the many
national security threats facing our country now. I think we will blind
ourselves if we amend this bill and send it back to the House,
expecting us not to go dark by Friday night, not knowing what the House
may even look like after the furious debate about the supplemental is
concluded.
So I urge my colleagues to join me in voting to pass H.R. 7888
without amendment and ensure that these vital authorities are
reauthorized.
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