[Congressional Record Volume 170, Number 68 (Thursday, April 18, 2024)]
[Senate]
[Pages S2846-S2866]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REFORMING INTELLIGENCE AND SECURING AMERICA ACT--MOTION TO PROCEED--
Continued
The PRESIDING OFFICER. The Democratic whip.
H.R. 7888
Mr. DURBIN. Mr. President, for the past year, the Senate has engaged
in a serious, bipartisan effort to reform a controversial spying
authority known as section 702 of the Foreign Intelligence Surveillance
Act, or FISA. I have never questioned that section 702 is a valuable
tool for collecting foreign intelligence.
Congress's intention when we passed section 702 was clear as could
be: FISA section 702 is supposed to be used only for spying on
foreigners abroad. Instead, sadly, it has enabled warrantless access to
vast databases of Americans' private phone calls, text messages, and
emails. This powerful tool has been misused, sadly, in the United
States to spy on protestors, journalists, and even Members of Congress.
Last Friday, the House of Representatives passed an alarming bill. It
is misleadingly called the Reforming Intelligence and Securing America
Act, but rather than fixing the flaws in section 702, the House bill
will dangerously and unnecessarily expand it.
The Senate is now rushing to pass the House bill as is because FISA
section 702 will sunset on April 19, but that is a false choice. No
Member should be fooled into believing section 702 will go dark and not
be available to be used on April 20 if we do nothing.
We planned for this exact scenario by providing clear statutory
authority to continue surveillance under existing orders from the
Foreign Intelligence Surveillance Court, known as FISC, after section
702 nominally expires. In fact, the U.S. Department of Justice has
already obtained a fresh, 1-year certification from this court to
continue section 702 surveillance through April of 2025. Let me repeat
that. Existing section 702 surveillance can continue through April 2025
even if it nominally expires on Friday. There is no need for the Senate
to swallow whole a House bill that expands rather than reforms section
702.
The House bill contains several alarming and unnecessary expansions
of the government's authority for spying. The bill could allow the
government to force ordinary U.S. businesses with access to
communications equipment--like a Wi-Fi router--to give the National
Security Agency access to their equipment. This would greatly expand
the number and types of companies forced to assist the NSA with spying
and increase warrantless collection of Americans' communications.
Another provision in the House bill would authorize the use of
section 702 data by immigration authorities. I am very concerned that
that would allow future administrations to target Dreamers and other
noncitizens who are only applying for travel documents and are subject
to sensitive background checks in that capacity.
Rather than expanding section 702, Congress should reform this
authority to protect Americans' privacy. Unfortunately, the purported
reforms will have little or no impact. For example, the bill would
prohibit what is known as evidence of a crime only queries. This would
have prevented the FBI from accessing Americans' communications in only
2 cases out of more than 200,000 searches on U.S. persons in 2022.
Other changes merely codify existing internal approval requirements.
But with these limits in place, the FBI still conducted an average of
more than 500 warrantless searches of Americans every day in 2022.
I will try to make this as basic as I can. After 9/11, we were
seriously concerned about the security of the United States, as we
should have been. We established authorities in this government to keep
us safe. But we had a problem that we had to reckon with, and the
problem was this: Despite the great threat we faced, we also had a
great responsibility to this publication, the Constitution of the
United States, and so we created section 702 and said that we will use
it to have queries and surveillance of foreigners in foreign lands but
not Americans.
Why did we draw that distinction? Because the Constitution makes it
clear: Before the government can listen to my phone call, read my text
or email in this country, since I am a U.S. citizen, they have to have
a warrant--a warrant which gives them approval for that search--and
they have to go to court to get the warrant for that purpose. We made
the exception for foreigners in foreign countries, but we said we were
trying to protect Americans from this kind of surveillance without
complying with the Constitution.
Well, over the years, sadly, the application of this law was not very
good. At one point, there were 3.4 million inquiries of American
citizens in 1 year.
The Agencies of our government said: We are going to do better. We
won't be invading the privacy of individual American citizens. We will
do better.
They did better, but there is still an outrageous and unacceptable
level of misuse of FISA authority to have surveillance into the privacy
of individual American citizens. That is why I rise today.
After the long history of the abuses of this authority--spying on
Americans
[[Page S2847]]
without a constitutional warrant as required--Congress should not rely
on internal executive branch procedures as a substitute for court
approval.
If the government wants to spy on my private communications or the
private communications of any American, they should be required to get
approval from a judge, just as our Founding Fathers intended in writing
the Constitution.
A bipartisan amendment in the House would have required the
government to obtain a warrant before searching section 702 databases
for the communications of American citizens, but this critical reform
narrowly failed on a tie vote, 212 to 212.
I want to offer a narrower amendment that would only require the
government to obtain a warrant in a small fraction of situations where
it actually wants to read or listen to private communications of
American citizens.
The vast majority of warrantless FBI searches on U.S. persons do not
return any results. Less than 1.6 percent--less than 1.6--return any
measurable results. Based on recent FBI statistics, that would amount
to just 80 times a month that the FBI or other Agencies that are
engaged in this 702 surveillance would have to ask for a court order to
protect inquiries and investigations into private communications of
American citizens.
I have sat through numerous classified briefings on section 702 and
listened carefully to the government's concerns about having to obtain
this court approval in order to review the contents of Americans'
communications. My bipartisan amendment accounts for these concerns by
providing exceptions to the warrant requirement for emergencies or
cyber security attacks or where an American consents to the search.
This will ensure that there won't be any delays that jeopardize
national security. What it will not allow are fishing expeditions in
which there are no unusual circumstances and the government does not
have probable cause.
This pragmatic approach--respecting the Constitution--will safeguard
Americans' privacy and still preserve section 702's critical value for
collecting foreign intelligence and protecting national security.
The Chair of the independent Privacy and Civil Liberties Oversight
Board conducted a thorough review based on the classified record and
reached the same conclusion.
Congress has a responsibility to the American people to get this
right.
I recognize the importance of section 702, but we should not
rubberstamp the House's flawed bill when surveillance is already
authorized until April 2025.
I want to respect the need for section 702, but I am sworn to respect
the need to follow this Constitution. Without critical changes to
improve this bill, I cannot support it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I am glad I was on the floor to hear the
distinguished Senator from Illinois's comments about section 702 of the
Foreign Intelligence Surveillance Act. This is perhaps the most
important law that most Americans have never heard of before, but here
we are debating that. The House having passed a bill and sent it over
to us, it is our responsibility now to consider that bill.
We all want to protect the privacy and constitutional rights of
American citizens. That is nonnegotiable. I agree with the Senator on
that point, and I think we all should agree. But the fact of the matter
is, the House bill is a reform bill. It is not section 702 as it
currently operates. This provides numerous guardrails, accountability
measures, and other measures that I believe will limit, if not
eliminate, the opportunity to abuse this authority, to the detriment of
American citizens; rather, I believe this law must be passed in order
to protect those same people.
It is really important for the American people to understand that
section 702 is only available against foreigners overseas--only
foreigners overseas. If you want to get access to any information even
on a foreigner here in the United States or an American citizen or a
legal permanent resident, you have to go to court and do what the
Senator says, and I certainly support that, which is to show probable
cause that a crime has been committed.
But we are not talking only about crimes, the crime of espionage; we
are talking about foreign adversaries collecting information on
American citizens that they can use to facilitate terrorist attacks,
the importation of dangerous drugs, ransomware attacks through cyber
crime, and the list goes on and on and on.
But I think a fair reading of the House's bill provides the sort of
belt-and-suspenders approach that we need in order to reform the
current practice because of the very abuses that our friend from
Illinois mentions. Where I differ from him is the fact that we don't
need to worry about acting on this bill by tomorrow night at midnight.
Tomorrow night at midnight, the most valuable intelligence tool that
is available to policymakers, including the President of the United
States, will be eliminated--and what I am talking about is additional
collection of that information--because, in fact, the very
telecommunications companies that we depend on and that we compel to
participate in the collection process will refuse to cooperate if they
are not compelled to do so as a matter of Federal law. We know that
because some have, in fact, sued to protest that cooperation and that
compelling of cooperation. So we need to think about not only what this
program is now, but the blindness, the willful blindness we will incur
in the future unless we act on a timely basis. There is really no
reason not to vote on the amendments, including the amendments from the
Senator from Illinois. And I certainly support the right of every
Member to offer amendments to try to change the bill as they see fit.
Every single day information acquired through section 702 protects
our national security missions, and I want to mention a few of them.
Just think for a moment, when President Biden gets his intelligence
brief each day, that is called the Presidential daily brief. It is a
compilation of the most sensitive intelligence that is important for
the President as the Commander in Chief to have access to.
Approximately 60 percent of the information contained in the
President's daily brief is derived from section 702, so unquestionably
it is a critical resource to protect our country, not just for the
Commander in Chief but for other policymakers, including Members of
Congress who happen to be on oversight committees, for example, which I
am privileged to be.
Well, one of the first things that comes to mind when we think about
section 702 of the Foreign Intelligence Surveillance Act because it
applies only to foreigners overseas who are a threat to national
security and so identified--the first thing we think of is
counterterrorism.
It is easy to see why because this authority was first created in the
wake of 9/11--the worst terrorist attack America has ever experienced--
when 3,000 of our fellow citizens were killed that day.
Section 702 was enacted in 2008 in response to threats posed by
terrorist groups, and in the years since, it has helped over and over
and over again combat terrorism and prevent further terrorist attacks
on American soil. Last year, for example, section 702 helped the FBI
disrupt a terrorist attack on critical infrastructure sites in the
United States.
In 2022, 702 data supported the planning of the U.S. military
operation that resulted in the death of the leader of ISIS, the sequel
to al-Qaida, a terrorist organization that has designs not only on its
adversaries in the Middle East but on Americans as well. In 2020,
information acquired through section 702 helped thwart a terrorist
attack on a U.S. facility in the Middle East. And the list goes on and
on and on. The point is that section 702 is vital to America's
counterterrorism missions, but its applications extend far more broadly
than just on counterterrorism.
It is also a critical tool in the fight against fentanyl which took
the lives of 71,000 Americans last year alone. I have been to six high
schools in Texas where parents--grieving parents--say their child took
a pill that they thought was relatively innocuous--Percocet, Xanex. I
know we wish our kids wouldn't take things like that, but they
certainly didn't think they were taking a pill that would kill them.
But that is exactly what happened because it was a counterfeit pill
[[Page S2848]]
that looked like a regular pharmaceutical drug, but it was laced with
fentanyl, and it took their life. Section 702 is a critical tool in
combating fentanyl which is the leading cause of death for Americans
between the ages of 18 and 45. That is an incredible statistic.
In one example, the intelligence community obtained information under
702 that a foreign actor supplied pill press machinery to a Mexican
drug cartel to make fentanyl, which is what happens. The precursors
come from China. They make their way into Mexico. They are combined and
then processed through an industrial capacity pill press to make it
look like a normal pharmaceutical and then smuggled into the United
States. That machinery, that pill press, was capable of producing
millions of fentanyl pills, not per year, not per month, not per day,
but per hour. We know that one pill can kill, so this machine alone
could produce millions of lethal doses in 1 hour.
The good news is that this information was uncovered thanks to 702,
and it was acted upon and the pill press and other equipment were
seized before they could end up in a cartel's drug lab.
But this type of success story is not isolated. Last year, 70 percent
of the CIA's illicit synthetic drug disruptions stemmed from
information gathered through section 702.
I know we think of the CIA as our intelligence agency, and it is one
of our principal intelligence agencies, but one of their missions is a
counterdrug mission, and they were able to use section 702 to disrupt
70 percent--or it comprised 70 percent of their synthetic drug
disruptions just last year alone.
This intelligence gathering capability is vital to our operations to
stop fentanyl and save American lives. And there is no question that
the fight against fentanyl would take a major step backward if 702 went
dark.
Now, I want to reiterate, our friend from Illinois suggested that
there is no worry about missing the deadline of tomorrow night for
reauthorization. I just want to emphasize, it is true that currently
collected information could be queried, that they could have a search
selector to look among information that has already been lawfully
collected, but there would be no way that the telecommunications
companies from whom this information is collected would cooperate
absent a Federal law compelling them to do so. As I said, some have
sued and claimed that they should not be required to cooperate.
Of course, intelligence professionals uncover information about far
more than just terrorism and drug trafficking. Section 702 also helps
the United States Government stop the proliferation of weapons of mass
destruction. Seventy percent of the intelligence community's successful
disruptions of weapons of mass destruction in the past few years have
stemmed from 702. This intelligence also helps disrupt our adversaries'
efforts to recruit spies or people they try to recruit here in the
United States.
Section 702 helps identify and respond to cyber threats. In 2021, you
may remember the Colonial Pipeline ransomware attack where cyber
criminals froze the computer systems of Colonial Pipeline and shut it
down, which supplied the major supplier of gasoline and diesel for the
east coast. They said: We are not going to unlock that network until
you pay the ransom. Well, it was section 702--because the master minds
of this effort were overseas, primarily in Russia, we were able to use
702 in order to identify those foreign actors in a way that allowed the
FBI to connect the dots and to dismantle that criminal network.
Every day America's intelligence professionals rely on section 702 to
gather timely and actionable intelligence to keep our country safe.
Well, there is no question. I haven't heard any one of our Members here
in the Senate say that 702 is not helpful, it is not necessary, but
they are concerned about privacy--and I am too. That is the balance we
must strike between security and privacy. We need both.
Well, the Fourth Amendment to the United States Constitution protects
Americans from unlawful searches and seizures. Now, that applies in
every instance where there is an investigation, whether it is by the
FBI or by the local police department. Law enforcement cannot search
your home or monitor your communications without going to a court and
showing probable cause that a crime has been committed, but there is a
lot of confusion about where that might apply in this context because
what we are talking about is not crime in the sense that our criminal
laws ordinarily apply in America. What we are talking about is foreign
espionage and hostile activities directed toward the United States that
have not yet occurred.
Ordinarily, in America, we don't do anything to try to prevent crimes
from happening. We punish crimes once they have occurred after we have
investigated them and prosecuted them, but we don't want another 9/11
to occur. We don't want innocent Americans to be killed in a terrorist
attack. And it is not OK to say: Well, we will wait until the
terrorists commit that act, and then we will try to find them and
punish them. We want to stop it, and that is where 702 is so important.
It is not true that 702 gives the authority to the intelligence
community to target Americans. That is illegal.
The Senator from Illinois mentioned a number of times where there was
inappropriate and, frankly, illegal use of this information. Those
individuals in some instances have been disciplined, some instances
have been prosecuted, and that is appropriate.
But what the House bill does is, it takes for example, FBI rules and
regulations around the use of 702 and codifies them. In other words, it
is not discretionary. It is not a matter of Agency rules. It is a
matter of Federal law. Speaker Johnson, I know, sent out a long list--
and perhaps we ought to consider that more closely--a long list of
reforms that this bill includes that would make that sort of activity
far less likely.
I say ``far less likely'' because I doubt you can pass any law or any
rule that would prevent somebody from abusing it. But we sure ought to
make sure that we minimize the possibility, and we ought to make sure
that people who do so are held accountable. That is what this FISA
reform bill that the House passed does.
Again, this bill allows the intelligence community and the Department
of Justice to obtain information on foreigners located outside the
United States. So here is one of the questions or one of the issues
posed by our friends who have a different view on this. That is because
when a foreigner talks to a U.S. person, well, that should send off
flashing red signs or at least yellow lights, but Federal courts--at
least three Federal courts, including the Foreign Intelligence
Surveillance Court and two other Federal circuit courts, have held that
there is no violation of the Fourth Amendment among unlawful searches
and seizures of Americans if that was incidental to collection--
incidental to the authorized collection of foreign communications of
people overseas. And how is it that we could possibly expect anybody to
get a warrant when we don't even know these individuals they are
talking to until after the fact? What happens then is very important
and is very different; and that is, if the FBI or any law enforcement
Agency wants to go a step further and ask for more information about
the American citizen or U.S. person, then existing law requires that
they get a warrant. It requires them to go to court, go to the
intelligence surveillance court--article III judges appointed by the
Chief Justice of the United States Supreme Court--and to get a warrant
based on probable cause that this individual is aiding and abetting a
foreign adversary or has committed a crime like espionage.
But the Fourth Amendment to the Constitution does not apply to
foreigners who live abroad. Where this issue raises heightened concerns
is in the incidental collection, which I mentioned a moment ago. That
is if a foreign target who lives abroad is communicating with an
American on U.S. soil or a U.S. person like a permanent resident,
intelligence professionals will receive both sides of that
conversation.
Again, what I have said is multiple courts have examined the
constitutionality of this incidental collection; and in each and every
case, it has determined that 702 complies with the Fourth Amendment.
For example, the Second Circuit Court of Appeals, in 2019, considered
[[Page S2849]]
that very question. The court determined that ``the government may
lawfully collect the emails of foreign individuals located abroad who
reasonably appear to be a potential threat to the United States.'' The
court added that once it is lawfully collecting those emails, it does
not need to seek a warrant to continue collecting emails between that
person or other persons once it learns that some of those individuals
are U.S. citizens or lawful permanent residents or are located in the
United States.
But, as I said, once this incidental collection has occurred, if the
law enforcement Agencies, like the FBI, want to go further, they have
to get a warrant before they can collect other information about that
American citizen or U.S. person. That is no longer incidental to the
foreign intelligence-gathering of somebody overseas. That is a direct
investigation of that person, and it requires a warrant and probable
cause.
Well, what I am talking about in terms of incidental collection is
not a novel concept. For example, when a law enforcement officer
executes a search warrant as part of a money laundering investigation,
if the officer enters a home and sees illegal drugs, for example, in
plain view, officers can seize that evidence even though it is
unrelated to the warrant. That same sort of principle applies here. The
Second Circuit, the Ninth Circuit, and the Tenth Circuit Courts of
Appeals have all looked into this matter, and the Eastern District of
New York has as well. Again, every court that has considered the
lawfulness of the 702 program found that it complies with the Fourth
Amendment.
So there is no argument, really, even among people who have different
points of view. There is no argument that 702 is vital to our national
security. The FBI and the intelligence community rely on that authority
to combat terrorism, to disrupt drug trafficking, to prevent cyber
attacks, and much, much more.
I believe what is really being argued about here, which we ought to
go ahead and lay on the table, is a lack of trust in how these rules
are actually applied and practiced. Part of that justifiable concern is
based upon abuses in the past, and those ought to be investigated and
prosecuted; and those people who violate the law ought to be held
accountable. But what the House has done is proposed a reform bill
which reduces, if not eliminates, the chance of taking those same sorts
of actions; and it certainly has provided for accountability, including
prison sentences for the people who do violate those rules.
So this proposal goes about as far as you could go without destroying
section 702 to make sure that the privacy rights and the constitutional
rights of American citizens are protected, while at the same time
making sure that we can maintain this flow of valuable foreign
intelligence to help protect the American people.
This legislation codifies reforms that were implemented by the FBI a
couple of years ago, which have reduced noncompliance to about 2
percent of their queries; and these reforms have already proven to
work. As I said, the Department of Justice conducted a review last year
and found that 98 percent of the FBI's queries were now fully compliant
with these new and enhanced and improved requirements, and those would
be codified into law under this bill.
So I appreciate the sensitivity that all of us feel about the
constitutional rights of American citizens. None of us want to allow
any violation of those rights. We are sworn to uphold and defend the
Constitution and the laws of the United States. I am confident that
each of us wants to be loyal to that oath, but at the same time, we
have a responsibility to protect the American people from the sorts of
threats that I have described. Allowing 702 to expire tomorrow night
would simply blind not only the President of the United States but us
as policyholders--the people responsible for protecting our great
Nation--to threats that future collection under 702 could provide,
because there is no way that these telecommunications companies are
going to cooperate absent a Federal law compelling them to do so.
So who would be the winner in all of this? Well, let's call out a few
winners if 702 goes dark: China, Russia, and Iran; and you might throw
in North Korea. It would limit our ability to understand the threats we
are facing here in the homeland before it is too late.
There is a reason why the intelligence community calls section 702
the crown jewel of their ability to protect and defend the United
States and the American people, and it is absolutely imperative that
Congress reauthorize section 702 with these reforms before it lapses
tomorrow night. And I am optimistic that, in working together, we can
get the job done.
I yield the floor.
The PRESIDING OFFICER (Mr. Fetterman). The Senator from Illinois.
Mr. DURBIN. Mr. President, I want to thank my colleague from Texas.
Though we may disagree on some aspects of this important law, once
again he has made a professional and thorough presentation of his point
of view. I hope that those who are following this debate understand it,
because it is complicated. It is complicated to understand; it is
complicated even to explain. But it seems to me there are a couple of
areas here that I would like to express a point of view on of the
Senator from Texas's comments.
No. 1, I am in favor of keeping section 702--no question about it.
When it comes to its initial purpose, we still need it to keep America
safe, and we need it in many different aspects. He mentioned the
fentanyl situation. It is horrible. The most recent figures I have
received from the Drug Enforcement Administration suggest there are
over 100,000 victims a year of fentanyl in the United States. It is the
deadliest narcotic. There are at least two cartels in Mexico that are
generating this fentanyl: Jalisco and--I am trying to recall the other
one. But they are actively engaged, and the Drug Enforcement
Administration is monitoring what they are doing.
Do we want to use our capacity to get into that business model and
try to find out more information to thwart deliveries into the United
States and more fentanyl in the United States? Of course. Sign me up.
The question comes down to a practical question. Let's assume for a
moment that we decide that we want to know if someone involved in one
of these cartels is making a drop in the United States. We can use 702
because we are dealing with foreigners in a foreign land. That is the
premise of 702. So, if we intercept the communications of someone in
that cartel in Mexico, the question is, What do we do if the
information that they disclose in this conversation includes a
reference to an American? What right do we have to go any further in
questioning that American's involvement with the cartel? That is when
we run into the Fourth Amendment, as far as I am concerned, and it is a
serious question as to whether or not we can ask any questions about
text, emails, or phone conversations of the American whose name came up
in the conversation that we intercepted of the member of the cartel.
That is where we have, probably, a difference of opinion. How far can
we go? I believe, if we are going into an inquiry as to what that
American's involvement is with that cartel, the Fourth Amendment
applies. At that point, we need a warrant.
Through the Chair, I ask if the Senator would like to comment on what
I have said so far.
Mr. CORNYN. Mr. President, I appreciate the opportunity to engage my
friend and colleague, the distinguished chairman of the Senate
Judiciary Committee and a distinguished lawyer in his own right. This
is his wheelhouse.
I appreciate the question because I think it actually--maybe there is
a nuance here that I misstated my position, because I am of the same
mind the Senator is when it comes to an American citizen who is
mentioned in a communication with the foreign actor, because this is
designed to deal only with foreign actors.
What I was referring to was incidental communication, when there was
a communication between the foreign actor and the U.S. person, and we
can call him a U.S. person because he can also be a legal permanent
resident. Basically, what we are talking about are U.S. citizens. So
that is incidental collection when there is that contact between a
foreign target and the American citizen. That is considered to be
[[Page S2850]]
incidental collection, and no court has said it violates the Fourth
Amendment.
But I agree with the Senator that if, in fact, there is a mention of
an American citizen in that communication and the law enforcement
Agencies want more information about that American citizen, they have
to get a warrant. They have to go to court and establish probable cause
in order to get that information because that is what the Fourth
Amendment is designed to protect. I hope I have understood the
Senator's position.
Mr. DURBIN. Well, I hope I understand the Senator's position as well
because I think we just reached a point of agreement. The question is,
where do we go from here?
If the foreigner names an American citizen, that is incidental. If
our Agency of government decides that they want to explore
conversations--phone conversations, texts, and emails--of that named
American citizen, I think we both agree, at that point, we have reached
Fourth Amendment protection, and it requires a warrant.
All I have tried to do with my amendment is to condition that
situation that I have just described to you to be protected in law with
three exceptions. I create three exceptions: an emergency situation. I
mean, you can imagine--and I can too--after living through 9/11 and
other instances. Sometimes you have to move and move quickly, and even
a Fourth Amendment warrant may be questionable.
The second part is cybersecurity--or that may be part of it. And the
third is when that American citizen happens to be asking to be
protected for fear that something is happening to them that they don't
want to happen; so they ask the Agency of the government to go forward
and inquire as to that foreigner because they want, for their own
protection, the Agency to do it. Those three things are built into my
amendment as well.
So we may be perilously close to an agreement. I don't know. I won't
presume that, but I think what we have said so far is something that I
can live with.
Mr. CORNYN. Mr. President, if the Senator from Illinois will permit
me to respond, there are two challenges I think we face. One is that I
think the exceptions that you mentioned, basically, will mean that the
status quo remains because almost each of those three exceptions would
be allowed under current law, so then the amendment would not really
change much in the way of practice. I may be missing something, but you
mentioned cybersecurity, emergency situations, and the third is?
Mr. DURBIN. The consent of the person, of the American.
Mr. CORNYN. But here is the practical problem: The House of
Representatives has passed this bill, and one particular, important
aspect of this is a warrant vote that was a tie vote. So this bill--
this law--lapses tomorrow night at 12 midnight, and it is obvious to me
that we are not going to be able to change this bill in a way that then
could go over to the House and get picked up and passed before 12
midnight tomorrow night. Basically, what we are forced with is a lapse
in these authorities during the interim, and I am not even confident
that the House could even pass another bill even with these amendments.
So I don't question the good will and the intentions of the Senator
from Illinois. I think he wants to do what I want to do, which is to
protect our country and to protect the rights of American citizens, but
I think, as a technical matter, that the exceptions he has will swallow
the rule that his amendment would establish. Perhaps, even more
basically, just through the passage of time, it would prohibit our
getting this bill to the President's desk in time to keep these
authorities in effect.
There is no question that our world is more dangerous now than at any
other time in the recent past--I would say since World War II. So I
don't think we could risk going dark by having this authority lapse on
future collection, either for the benefit of the Commander in Chief--
the President of the United States--or the rest of us.
I want to thank the Senator for giving me a chance to answer a few
questions and present my point of view.
Mr. DURBIN. Mr. President, I would like to thank my colleague from
Texas and say to those who have witnessed this: This came dangerously
close to an actual debate on the Senate floor--a bipartisan debate--
that happens so seldom that those who witness it should probably call
their friends.
Seriously, I respect the Senator from Texas. Though we may disagree
on some aspects of this, I respect his presentation and thank him for
answering the questions.
I yield the floor.
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. THUNE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Federal Communications Commission
Mr. THUNE. Mr. President, next week, the Biden Federal Communications
Commission will take a pointless and destructive vote to reimpose
onerous net neutrality regulations. Like the Obama FCC before it, the
Biden FCC wants to assert broad new government powers over the
internet, using rules that were designed--if you can believe this--for
telephone monopolies, back during the Great Depression. If there were
ever a solution in search of a problem, this is it.
We have tried the Democrats' heavyhanded net neutrality experiment
before, and it didn't go very well. Back in 2015, the Obama FCC
implemented the regulatory regime the Biden FCC is planning to impose
starting tomorrow. This opened the door to a whole host of new internet
regulations, including price regulations, and broadband investment
declined as a result. That was a problem for Americans generally who
benefit when the United States is at the forefront of internet growth
and expansion, and it was particularly bad news for Americans in rural
States like South Dakota.
Deploying broadband to rural communities already has a number of
challenges, and adding utility-style regulations, not meant for today's
broadband market, acted as a further disincentive to expanding access.
Recognizing the chilling effect the Obama FCC's regulation were having
on internet innovation and expansion, in 2017, the FCC, under Chairman
Pai, voted to repeal the heavyhanded net neutrality regulations passed
by the Obama FCC.
The prospect was greeted with absolute hysteria from Democrats. You
would have thought that the sky was about to fall. So dire were their
predictions.
We were told that the internet, as we know it, would disappear, that
providers would slow speeds to a crawl, that we would get the internet
word by word, that our freedom of speech was threatened.
But the repeal went into effect. And guess what happened. Lo and
behold, none of the Democrats' dire predictions came to pass. As anyone
who has been on the internet lately knows, the internet has not just
survived but thrived. Innovation has flourished. Competition has
increased. The internet remains a vehicle for free and open discourse.
And internet speeds have not only not slowed down; they have gotten
faster and faster. So where, I might ask, is the problem that requires
this new onerous regulatory regime? Well, there isn't one.
But, unfortunately, that is rarely enough to stop Democrats, who seem
to lose sleep at the thought of some aspect of society not being
subjected to heavyhanded Federal regulation.
In fact, of course, the Federal Government already regulates the
internet, but it does so using a light-touch regulatory approach that
has allowed the internet to flourish. But if the Biden FCC's new
regulatory regime goes into effect, those days of flourishing may be
numbered. As I said, the last time that these heavyhanded regulations
were imposed, broadband investment declined, and there is good reason
to believe that the same thing would happen this time.
These new rules could also imperil the United States' position at the
forefront of internet innovation. Perhaps most disturbing of all, the
Biden FCC's onerous new regulatory regime could spell the end of the
free and open internet that is supposed to protect.
Under the regulatory regime the Biden FCC is set to impose, the
Federal
[[Page S2851]]
Government would be allowed to block or prioritize internet traffic or
otherwise interfere with the free flow of information. It is not hard
to imagine the Biden administration using this new regulatory power to
shape Americans' internet experience for its own ends.
This is an administration that attempted to manufacture a nonexistent
voting rights crisis in order to pass legislation to give Democrats a
permanent advantage in Federal elections. So it is not hard to see the
Biden FCC using its new powers to advance Democrat interests or the
Biden administration's far-left agenda.
The Biden FCC's new regulatory regime is a solution, as I said, in
search of a problem, and it is likely to create problems where none
exist.
On top of that, as former members of the Obama administration have
pointed out, it is unlikely to stand up in court because existing law
does not give the FCC the powers that it wants to assume. That makes
the FCC's upcoming vote even more pointless.
The Biden FCC should be focused on addressing real challenges, such
as continuing our efforts to close the digital divide and to ensure
that every American has access to high-speed broadband. But as the 3-
year crisis at our southern border demonstrates, the Biden
administration tends to ignore the real problems facing Americans in
favor of expanding government and advancing its far-left agenda.
So I expect that the FCC will vote next week to impose this
heavyhanded new regulatory regime. But while the vote may be a foregone
conclusion, I am hopeful that the Biden FCC's regulations will be
struck down in court.
I will do everything I can here in Congress to overturn them because,
if the new Biden regulatory regime is left in place, it may not be long
before we will be looking at the very opposite of net neutrality.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Alaska Resources Day
Ms. MURKOWSKI. Mr. President, this was supposed to be a really great
week for us in Alaska. We had an opportunity to kick off the Alaska
Resources Day back here in Washington, DC.
The leaders of 10 of my home State's trade associations--notably, all
women, which I think is worth commenting on--all flew back to
Washington, DC, for Resources Day. They and other industry leaders
gathered to really celebrate the success of the industries that are
present in our State--everything from oil and gas to mining, to
seafood, and tourism. It was a good day spent educating folks about
Alaska's commitment to and, really, our record--a very strong record--
of responsible development to benefit Alaska and the Nation.
It should have been a really great opportunity to reflect on how far
we have come as a State. But instead of being able to focus on that,
the big buzz was the reminder that we are really at the mercy of an
administration that views us--views Alaska, views Alaska's resources--
as really nothing more than a political pawn in a reelection campaign.
The rumors are out there, and there is more substance to them now
than there were a few days ago. But the Biden administration is set to
announce yet two more decisions to restrict and prohibit resource
development in the State of Alaska.
This is almost getting to be so routine that we are coming to dread
Fridays in the State of Alaska because that seems to be the day that
the administration reserves to just dump more closures, more lockups,
more shutdowns on us, on top of the dozens and dozens of initiatives
that have already been imposed on us over these past 3 years.
Unfortunately, the decisions that are going to be unveiled tomorrow
are probably some of the worst that we have seen from the
administration--an administration that I think has just lost their way
when it comes to energy and mineral security.
I want to talk, first, about the mineral security piece of it because
we are going to see announced tomorrow the rejection of the Ambler
Access Project.
This is a private road. It is a private road that is needed to access
and unlock a region that we call the Ambler Mining District.
There was a 1980 law under ANILCA, part of the balance that we struck
on conservation. This was the big deal in 1980, but it was an effort to
put into conservation status while still allowing for certain
development. But under that law, we were guaranteed road access to the
district.
Why is the district important in the first place? It was important
back then, in the 1980s, but even more so important now because of the
critical minerals that this country needs to break our dependence on
China and other foreign nations.
This project is not new. This project was fully approved, and I think
it is worth underscoring that--fully approved--in 2020. But this
administration said: Never mind all that.
Interior sought a voluntary court remand for Ambler's approval on the
very same day that President Biden held a roundtable to discuss--
what?--the importance of critical minerals and how this country needed
critical minerals. He is saying that on one screen, and on the other
screen you have got a remand effectively putting the brakes on the
Ambler project.
And for the past couple of years now, Interior has magnified the
impacts of this simple private haul road so that they could really find
a way to just turn the tables, to turn this project from one that had
been approved to one that will be rejected.
The second action that we are anticipating from Interior tomorrow
will be the finalization, the final rule, to shut down further access
to our National Petroleum Reserve in the northwest portion of the
State. This is a 23 million-acre expanse. This is an area about the
size of Indiana. There are only a few hundred acres of this Indiana-
sized piece of the State that have ever been approved for any type of
development, and it is exactly what the Obama-Biden administration had
pointed to. They said to the oil and gas companies: Go there. Go to the
National Petroleum Reserve-Alaska. Don't go to ANWR; go over here.
Develop there.
So now you have the interest in it, and after approving exactly one
significant project in our petroleum reserve, the Biden administration
has now completely abandoned that approach. And what we expect to see
tomorrow is Interior issuing just a sweeping rule to now cut off access
and, to add insult to injury, with barely consulting the Alaska Natives
who live on the North Slope--failed to consult. They violated their own
policies. They ignored Federal law.
This is really tough for us in Alaska because this is not the first
time now that this administration has just turned their eye to what the
law requires. They ignored Federal law which requires an expeditious
program of competitive leasing and development. So where there was once
opportunity, they are now creating uncertainty and restrictions that
will cut off access and halt future projects.
But again, never mind all that, the administration says, because it
just doesn't seem to matter to them. That is what I don't get--not the
rule of law, not the local people who support responsible development,
not the State benefits or the national need, not even the international
events and crises that we are dealing with right now this moment that
should have prompted a gut check and maybe folks within the White House
saying: Maybe we should dial this back just a bit right now, given what
is happening in the world. But none of that seems to matter as, once
again, this administration makes two more politically motivated
decisions against responsible resource development in Alaska.
And we need to be clear here. These were not fair processes. These
were fait accompli, decided behind closed doors, likely in concert with
the national environmental groups well before the administration even
publicly announced that it was even considering them.
So here we are. Here we are. Under the administration, there hasn't
been and there won't be any new leasing in our petroleum reserve. There
aren't any more project approvals in sight to help supply west coast
refineries that have now turned to imports from abroad.
And where are they looking for those imports? Previously from
countries like Russia, but now--now--at the direct expense of the
Amazon rainforest, which the environmental community
[[Page S2852]]
calls the lungs of our planet. But that is where California, believe it
or not, is going to be looking to import.
And nor will we be able to build the private, restricted-use Ambler
Road that Federal law explicitly allows for that we need to access
minerals that are crucial to our security, to our economy, and to the
success of this administration's own policies.
And I think this is all because it is a political year. It is a
political year, and this administration is putting partisan payoffs
ahead of sound policy, and that is regrettable. It is mightily
regrettable.
Setting aside Alaska Resources Day, think about what these decisions
say about the administration's priorities and the signals that they
send to our adversaries because I think sometimes we just look at
these, and we think about them in the context of what people in our own
country are saying. But what is the message that is being sent to our
adversaries? We know and they know that we are deeply dependent on
foreign minerals. This is our Nation's Achilles' heel--I keep talking
about it--especially as China dominates so many global supply chains.
We imported at least 50 percent of our supply of 49 different mineral
commodities last year, including 100 percent of 15 of them. And that
has risen quite dramatically over the past couple of decades, and for
many crucial commodities, it is still going up.
So why does the Ambler district matter? It matters because it has
copper. Our top experts warn that copper is on the verge of a global
shortage. It has cobalt, which we imported 67 percent of our supply
last year, including from African nations where malnourished children
are the ones who dig it out by hand. We can't feel good about that. The
Ambler district has resources like gallium and germanium, which China,
in an effort to show who is boss here, recently cut its exports of.
This was a clear shot across the bow to the West.
About the only thing that Ambler doesn't have is access to a road,
which it needs to facilitate the mining, which we need to facilitate
everything from advanced munitions to electric vehicles. So let me
assure you, we should want to mine in Ambler, where it will happen
safely, under the highest environmental standards in the world. And we
should stop outsourcing mining abroad, particularly to these
jurisdictions where there are no or very little environmental
protections, and we see horrific human rights abuses among workers.
The administration's NPR-A decision--again, that is our petroleum
reserve. We shouldn't just talk in these acronyms. NPR-A means National
Petroleum Reserve-Alaska. This decision is just as reckless. The Middle
East is on the verge of a regional war, thanks to Iran, and the one
thing standing between us and $200-a-barrel oil is American producers
that operate on State and private land. And yet the President
criticizes them. He criticizes them instead of thanking them for saving
his administration. That is what is helping to keep a lid on some of
these prices.
It is one thing to conjure up a villain; it is another to let the
real villain, which in this case is Iran, off the hook, and that is
exactly what we are seeing happen right now. Since taking office,
President Biden has relaxed sanctions on Iranian oil exports, allowing
them to do what? To produce more, to sell more, and thus to gain tens
of billions of dollars.
According to the Foundation for Defense of Democracies, as of last
September, Iranian oil revenues had increased during the Biden
administration by $26.3 billion to $29.5 billion. And we know that
those numbers have just grown today. And what is Iran using the
revenues on? You don't need to guess. It is terror. It is regional
destabilization--from their Quds Force, from Hamas, from Hezbollah,
from the Houthis, and from the regional militias backed by the regime.
And last weekend we saw what that means when Iran launched more than
300 drones and missiles at our ally Israel. The attack was designed to
overwhelm Israel's air defense and only failed due to the heroic
efforts of a coalition that also included the United States, France,
Jordan, and Saudi Arabia.
We know what happens. We know what happens when Iran is allowed to
enrich itself. Their proxies attack Israel. They attack Israel. They
fan the flames of regional war that could draw in global superpowers,
and they continue their direct attacks on American troops who are
present in the region to fight ISIS, among others.
The Secretary of the Navy testified this week that American military
ships had been attacked 130 times and used more than $1 billion in
munitions in the Middle East over the last 6 months. Those are our
warships. And that doesn't even count the attacks on our bases.
So deterrence has been lost. The administration's Iran policy has
failed. But how do they react? By suggesting that we don't go after
Iran's oil.
Reuters ran a story with the headline that said, ``Biden unlikely to
cut Iran's oil lifeline after Israel attack.'' And then POLITICO dished
on this by saying, ``Why Biden could leave Iran's oil alone.'' And then
the Washington Post had a well-sourced piece about the Biden
administration telling Ukraine to stop attacking Russian refineries
because they are nervous about the gas prices leading up to the
election.
I mean, I read these stories, and it drives me crazy. I mean, what
does Alaska have to do to get some recognition that we might just have
a resource that not only we need in this country but our friends and
allies need? You have got a regime that is actively funding terror with
its oil revenues, another regime that is funding a catastrophic war
against an innocent people, and on the other hand, you have a State--
part of the United States--that wants to responsibly develop its
resources to build basic infrastructure and provide services for some
of its least well-off residents.
And somehow--somehow--out of that, the President has decided to relax
enforcement of our energy sanctions on Iran and put it on Alaska. That
is what we feel like. We feel like those sanctions are on us directly.
They don't want to hurt Russian production, but they are sure not
hesitant to hurt Alaska. So I think you can understand why so many of
us are frustrated and, really, even angry with the Biden administration
about these policies. It is unfair to always be picked on anytime the
administration needs to shore up its credibility with national
environmental groups.
We kind of feel like we are the giving tree at this point--except,
ironically, we know that this administration would never allow anyone
to harvest timber, so we can't be a giving tree. That is pretty well
off limits too. But it is also bad policy--just truly bad policy--to
sacrifice our jobs and our revenues and deprive our country of steady,
affordable supplies of domestic energy and minerals. And it is truly
bad policy to ignore the rule of law and our strategic vulnerabilities.
We will all feel the consequences as we let some of the worst people
in the world produce and gain from their resources instead of the very
best here at home. So, Mr. President, no State or nation produces its
resources, I believe, in a more environmentally responsive manner than
Alaska. No people care more about their surrounding environment than
Alaska.
I know I have got my friend from Vermont here, and he cares
passionately and I know the people of Vermont care passionately, but we
have a lot that we care passionately about.
So I just ask the question of colleagues; I ask the question of those
in the administration: Given a choice between China and Africa or
Alaska for minerals, it should be Alaska every time. And given a choice
between Iran and Russia and Venezuela or Alaska for oil, it should be
Alaska every time. And I think most Americans would agree, but it is
deeply disappointing--I believe, harmful--that those who hold positions
of power in the Biden administration are not among them.
With that, Mr. President, I yield the floor and respect that my
colleague from Vermont has been waiting.
The PRESIDING OFFICER. The distinguished gentleman from Vermont.
Mr. WELCH. Mr. President, I thank my colleague from Alaska and really
appreciate her remarks.
Affordable Connectivity Program
Mr. President, one of the rays of hope we have in this Congress is
the bipartisan accomplishment of the past several years to build out
broadband high-speed internet across the country, from Vermont to
Alaska and everywhere in
[[Page S2853]]
between. And that was because this Congress, on a bipartisan basis,
made a decision--a decision that is similar to what was made by this
Congress in the 1930s, when electricity was becoming widely available.
We decided that it was absolutely essential for the well-being of our
country and all of the citizens in urban and rural America that they
have access to high-speed internet. And we built out that broadband
network that made it within reach.
We also committed ourselves to a program called the Affordable
Connectivity Program, which is really modest but incredibly important.
And what it understands is that you may be a person with really low
income in Pennsylvania or in Vermont or in Alaska, where the internet
that has been constructed is right out in front of your mobile home or
your home, wherever it is you live, but you can't afford to connect. So
having the internet cable go by but you can't connect your home means
you don't have internet.
And the Affordable Connectivity Program--a bipartisan program--is
used by 23 million households, by 4 million veterans. And it is the
difference between them being able to connect and get the benefit of
high-speed internet or not.
And it makes such a difference because that internet is used by all
of us. It might be to do your job. It might be to apply for a job. It
might be for kids to do homework. It might be to get an appointment
with a doctor through telehealth, something that is really important in
rural America. That is the good news.
The dangerous news is that the Affordable Connectivity Program that
is that lifeline for our veterans, for our seniors, and for our low-
income folks is going to expire in a matter of weeks. And we have the
opportunity and, I believe, the responsibility to extend the
Affordability Connectivity Program so that people will be able to
maintain access.
As I mentioned, more than 23.3 million American households have
subscribed in the ACP, about 26,000 households in my State of Vermont.
About 10.6 million subscribers are over the age of 50. And half the
households that benefit are considered military families.
I mentioned 4 million veterans. A December 2023 survey of ACP
subscribers reported that 77 percent said they used the program to
schedule or attend healthcare appointments, and nearly 330,000 ACP
subscribers live on Tribal lands.
You know, one of the keys to the bipartisan support is that this
helps the citizens that all of us represent, whether you are in a red
district or a blue district, a red State or a blue State, the folks we
represent need access to the internet.
Let me just give a little example. I have a chart here about the 23
million Americans who use it. In Texas, one in four households--what a
difference that makes for those folks in Texas. In Indiana, one in
four. I am sorry. It was one in six in Texas. In Kentucky, one in four
households. In North Carolina and Mississippi, one in five households.
In Louisiana, every third household depends on the Affordability
Connectivity Program in order to be linked to the internet that goes
right by the front of their house.
So we have got to allow folks to continue to have that access to that
vital program. So we need a supplemental appropriation from Congress to
make certain that that happens.
If we let the ACP run out, funding would have devastating effects on
people who use the program. And 77 percent of the households that rely
on ACP say that losing that benefit would disrupt their service by
making them change their plans or drop the internet service completely.
And, by the way, that 30 bucks--you know, it cost more than that. So
folks have to dig deep in their pockets. And this is like Vermonters
making $15,000 a year and having two kids. They don't have a big
budget.
Let me give you a couple of examples because I think it brings it
home.
Cynthia is a retired American who lives in Florida. She is an ACP
subscriber. She told CNN, which did a great story on that, that she
connects to her granddaughter and her great-grandson on video calls
every week.
Do you know what? That matters. You are lonely. You have got
grandchildren. You want to stay connected. You want to be in touch.
That is a huge, huge part of her life. So let's not deny her that
access.
Jonathan is a software engineer in my State of Vermont. He is an ACP
subscriber who also spoke with CNN. This is what he said:
You're taking ACP away from the farmers that can check the
local produce prices and be able to reasonably negotiate
their prices with retailers. You're removing disabled
people's ability to fill their subscriptions online.
That really, really matters.
I have also gotten messages from my constituents, like Leslie in
Brandon, VT, who said:
I was just informed by Consolidated Communications [the
internet provider] that I would be losing my ACP benefit for
my internet service at the end of April. . . . What a shame.
The internet is our way of communicating with our family
members who live outside Vermont plus many other contacts
necessary for our stay-at-home lives. I use the internet
almost . . . [every day].
That is why we have bipartisan support. When we--all of us, whoever
it is we represent or whatever district we represent--listen to our
constituents, and they say to Senator Fetterman or they say to Senator
Welch or they say to Senator Wicker or they say to Senator Vance,
``This access to the internet really matters,'' we share a common
opportunity to help the people all of us represent.
And, by the way, that helps bring us together when we are working on
solving the problems that we all share.
And we have got bipartisan support to show for it. Joining me on the
Affordable Connectivity Program Extension Act is Senator Vance, Senator
Cramer, Senator Rosen, Senator Marshall, and Senator Brown. And many
others have indicated support and interest when we find the way to come
up with the funds to make certain it doesn't expire.
And, by the way, a lot of the leadership came from eight of my
Republican colleagues, who sent a letter to President Biden encouraging
the administration to fund the program, calling the ACP ``an important
tool in our efforts to close the digital divide.''
And I thank my colleagues--Senator Wicker, Senator Crapo, Senators
Tillis, Capito, Risch, and Young for sending that letter to President
Biden.
And, of course, most importantly, it is really popular with the
American people. The majority of Republican voters, 62 percent, support
the ACP, according to a poll from the Digital Progress Institute. That
same poll found that 80 percent of rural voters support continuing ACP.
And, boy, does this matter in rural America. You know, in the
Roosevelt administration, there was a commitment: We are going to get
electricity to the last barn on that last dirt mile in whatever rural
town you live in. And do you know what? We made that same commitment
here when we began extending broadband. But we won't make it real
unless we can make certain that those people at the end of the road, on
that dirt road, can afford it, and that is what the ACP does.
We need all of us--Democrats and Republicans--now to come together to
pass our bipartisan Affordability Connectivity Program Extension Act
and keep America connected.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. BENNET. Mr. President, 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. WICKER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Supplemental Funding
Mr. WICKER. Mr. President, there is a very good chance that there
will be good news this weekend for America's security, for European
peace, and for a signal to be sent for strength and success for the
alliance of free nations.
Yesterday afternoon, the Speaker of the House said that Congress will
soon send a very important message. And, yes, it is correct; the House
will send an important message. In the next few days, I believe
Congress will remind the tyrants of the world and the free
[[Page S2854]]
people of the world that America stands strong and that America keeps
its word.
I commend Speaker Johnson for doing the difficult thing but the right
thing. He followed the admonition actually of the Apostle Paul. The
Speaker could have put his own interest above the interest of others,
but he did not.
The eyes of our friends and our foes have been on the House of
Representatives, and the Speaker rose to the occasion. He recognized
that this moment was too important to squander for political
expediency.
The world is indeed on fire, and this administration's weakness has
fanned those flames. At the very least, President Biden's drip-drip-
drip approach has failed to douse the flames on the international fire.
And make no mistake. Russia, China, and Iran, with its terrorist
proxies, are working together, and they are conducting war on two
fronts: in Israel and in Ukraine.
And I agree with a bipartisan majority of this Senate and the House
of Representatives that America has an important role to play in both
of those conflicts.
America is an exceptional nation with an exceptional task: to lead on
the world stage and to make it clear that we can be counted on to keep
our promises.
At important moments throughout our history, there has always been a
group advocating for American retreat. Some of my friends today want
the United States to withdraw, to stay behind our own safe walls--as if
that were possible. But time and again, the American people have
learned--sometimes with some difficulty, sometimes reluctantly--that
retreating does not create safety. What happens abroad reaches our
shores. Whether we like it or not, it just does.
Like the Speaker, I am a Reagan Republican. Ronald Reagan stands in
history as a leader who achieved peace--peace through strength.
In the next few days, I believe we will work toward that goal by
sending aid to our ally Israel and by improving our ability to counter
China in the Indo-Pacific. I also believe we will do that--I believe we
will work for that peace through strength--by sending additional lethal
aid to Ukraine.
Vladimir Putin is a proven war criminal. If he is allowed to win, he
will not stop in Ukraine. Ukrainian people have proven themselves
capable on the battlefield--remarkably capable. They have achieved
remarkable wins against the Russian dictator. They did so even this
week. They simply ask us to give them the tools to keep doing that job.
Speaker Johnson said we should be sending bullets to Ukraine, not
American boys. I agree. His son will soon put on the uniform as a
midshipman, and my son continues his military service in the Air Force
Reserve. So this is personal to me, and it is personal to the Speaker
of the House and for many parents whose sons and daughters proudly
serve, including Mississippians on Active Duty and in the National
Guard.
I recognize that some of my colleagues disagree. I am glad they will
be given a chance to vote their conscience, as our Founders intended
when they designed our system of government, through their willingness
to agree, disagree, and then come to a conclusion with each other. The
system they built has remained sturdy. It has weathered contentious
times at home and abroad.
Mr. President, some talking heads today equate compromise with
weakness. Our Founders did not do so, and neither do I. Momentous
times, perilous times compel us to work together, and it is not weak to
do so.
Everyone in the House and then everyone in the Senate will soon get
to make their voice heard on this very important topic. When all is
said and done, I hope and pray we will reassure our allies and remind
our adversaries that America still stands for freedom, and we stand for
peace through strength.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
25th Anniversary of Columbine Shooting
Mr. BENNET. Mr. President, this Saturday marks a solemn anniversary
in Colorado--the solemn anniversary of a moment that shattered our
children's sense of safety and has forever scarred our Nation's memory.
It has been 25 years this week since the Columbine High School
shooting, where 12 students and a teacher were murdered and many others
were left with life-altering injuries. None of us left without the
impact of that day.
Columbine changed our State forever. I think it changed the country
forever. We all remember where we were the day it happened. I certainly
do. We remember the lives that were lost on April 20, 1999. Twelve
young Coloradans never had the chance to graduate from high school, go
to college, get married, start a family.
Rachel Scott was killed when she was eating lunch outside with a
friend. She was planning on going on a mission trip to Botswana and
dreamed of becoming an actress. She was 17 years old.
Danny Rohrbough was 15. Every year, Danny saved the money he earned
from working at his family's wheat farm in the summer to buy Christmas
presents for his friends and family--just another American kid gunned
down on his way to lunch, still holding the Dr. Pepper he had bought
from the vending machine.
Kyle Velasquez, age 16, was a new student at Columbine. He had
developmental disabilities, and he had just started attending school
for a full day. He would have been on his way home from school if the
shooting had happened just a week earlier than it did.
The youngest victim, Steven Curnow, was only 14 years old. He dreamt
at that young age of becoming a Navy pilot.
Cassie Bernall, 17, was a new student at Columbine. After a few tough
years of high school, she was finally thriving and excited for what was
next.
Isaiah Shoels, 18 years old, was a senior about ready to graduate. He
had overcome a heart defect to play football and wrestle in high
school.
Matthew Kechter, a straight-A student and also a football player, was
remembered by his parents as a wonderful role model for his younger
siblings. He was just 16.
Lauren Townsend was 18 and was the captain of the volleyball team.
She loved to volunteer at the local animal shelter.
John Tomlin was killed. He was 17. He was in the library at
Columbine, where he was trying to comfort other students.
Kelly Fleming was 16. She was also a new student at Columbine. She
loved to write poetry.
Daniel Mauser was 15 years old. He was a Boy Scout and a piano player
who had just mustered the courage to join the school's debate team.
Corey DePooter, 17, was described as an all-American kid who worked
hard in school and was someone his classmates loved to be around.
Those were the students who died that day. And we can't ever forget
Dave Sanders and the contribution he made--a teacher, a father, and a
grandfather. He was a hero that day. He saved 100 students in danger
before he was killed.
Twelve kids in the prime of their lives were gunned down by killers
who used the gun show loophole to purchase weapons they should never
have owned.
Mr. President, the shooting at Columbine High School, as I have said
over and over and over again on this floor, happened the same year that
my oldest daughter, Caroline, was born. She is turning 25 this year.
She and her sisters and an entire generation of American children--
maybe two generations, really--have grown up in the shadow of
Columbine--really the first of these types of school shootings--and the
shadow of gun violence more broadly.
Since Columbine, my State--every State--but my State has endured one
tragedy after another, one horrific murder after another. In 2012, a
gunman killed 12 people at a movie theater in Aurora, CO. In 2019, a
shooter injured eight students at STEM High School in Highlands Ranch.
In March 2021, a shooter killed 10 people at the King Soopers in
Boulder. Two months after that King Soopers shooting, a gunman killed
six people at a birthday party in Colorado Springs. Just over a year
ago, a shooter killed five people at Club Q, an LGBTQ club in Colorado
Springs that had been a refuge to so many people.
``Columbine'' really is, I think, a word that is etched into
America's history and America's consciousness as
[[Page S2855]]
the start of this sickness. Columbine is so much more than that as
well. There are kids in high school there this week. It is a place
people still want to go. It is a place where people who were teaching
there 25 years ago still want to teach.
But I think for a lot of America--certainly for me--there is sort of
a ``before Columbine'' and there is an ``after Columbine.'' There is a
moment when something like that happened for the first time in America,
and we couldn't believe it. It was so out of kilter with our experience
as Americans. Now we have had not just the shootings that I recorded in
Colorado and that I have come to this floor to talk about over the
years but so many others all across the United States of America.
Nobody has carried this burden more than our children, the generation
of the people who are the pages on the floor here today in the Senate.
They are a generation of metal detectors, of active-shooter drills and
bulletproof backpacks. They live under constant threat of being next.
Anybody who has raised children over the last 25 years in this
country knows what it looks like when there is a report of another one
of these shootings, and you are sitting there on the couch with your
son or your daughter, seeing them sink a little deeper into that couch
or sitting up a little closer, a little more nervous, a little more
worried that you are going to be next.
I wish we could say that in marking this 25th anniversary and
thinking about the contributions people have made in the Columbine
community, both in Colorado and across the country, to help comfort
victims of similar school shootings, to provide leadership that doesn't
have anything to do with the shooting that happened at Columbine except
to know that they had another chance to be able to make a contribution
to their society--and we are grateful for that contribution.
I wish I could stand here and say: Well, over the last 25 years, we
had addressed this issue. We were paying attention to the concerns of
this generation that has grown up in the shadow of Columbine.
I wish I could say that, but I can't say that. What I can report to
you today, standing here, is that guns are the leading cause of death
of children in America--uniquely in America. In no other country in the
industrialized world--no other country in the world--is that true. And
it wasn't true when Columbine happened 25 years ago. Twenty-five years
ago, car accidents were the leading cause of death for children. I can
come here and report to you that since then, car accidents--car deaths
and car accidents--among kids over that period of time have decreased
by 50 percent in this country. We cut it in half. Drunk driving deaths
are down 60 percent in America since Columbine happened. Child cancer
deaths in the United States of America are down a quarter since then.
Congress has passed countless laws that have made our roads and our
cars safer. We have passed historic legislation to reduce drunk-driving
fatalities. We have appropriated billions of dollars for cancer
research. Well, that is good. That is all good.
But in the last 25 years, the number of kids that have died by guns
in America has increased by 68 percent. If you take all of the people
in this world who die by gun violence--at least in the industrialized
world--that are age 4 and younger, 95 percent of the people that die
from guns die in the United States of America, and 3 percent die
somewhere else.
There is no other country, as I said, in the industrialized world
where gun violence is the leading cause of death of children, only here
in the United States. There is no other country in the world where kids
sit there on the couch watching television, seeing another one of these
events and wondering, as our children have for the last 25 years,
whether they are going to be next.
You know, one of the really staggering things about that statistic,
about the gun death being the leading cause of death among kids, when I
first heard it, I thought to myself, that must be accidents of some
kind or another. That must be people being careless with firearms,
leaving them someplace, or kids being careless with firearms.
Only 5 percent of those gun deaths are accidents, and 65 percent are
violent actions between a person and that child, while 30 percent have
been deemed suicides. So 95 percent of them are, in effect, acts of
violence of one kind or another, and 5 percent are accidents.
It is hard for me to imagine that any other ratio like that would be
something where we didn't feel like we had a moral obligation to
address it, a moral obligation to fix it.
I know that young people who are here today feel that we have
abandoned them. I know they know this is a disgrace; that it is an
indictment of our Nation; that it is an indictment of their prospects;
that it is incomprehensible to them and to my daughters that we have
nearly 200 times the rate of violent gun deaths as Japan has or as
South Korea has and nearly 100 times the United Kingdom.
I wish I could stand here 25 years after Columbine and tell you that
we have addressed this. But matters are much, much worse than they were
25 years ago, certainly from the perspective of our kids.
But we can't stop; we can't give up; we can't stop trying--because it
is a disgrace; because it is an indictment; because it calls into
question what it means to live in a nation that is committed to the
rule of law, in a nation that is committed to the public safety and the
safety of our citizens.
I see the Senator from Connecticut, Chris Murphy, and I, who have had
many conversations about this over the years. No one has led more on
this question in the Senate than Chris because of what happened in
Newtown and what has happened throughout the United States. And I am
grateful for that.
I am grateful for Daniel Mauser's dad Tom, who I saw again this week,
having been fortunate to speak with him many times over the years. If
he were alive today, Daniel, his son, would be 40 this year. And to
this day--yesterday, I think it was, maybe the day before--when he
comes to Congress, Tom wears the same sneakers that Daniel had on the
day he was killed at Columbine.
And Tom has never, never given up. He has fought tirelessly to build
safer schools, to argue for stronger gun laws, to raise awareness
around gun violence protection--just like the families from Newtown who
sat up in that balcony over there and saw the catastrophic failure on
this floor that night; just like the kids from Parkland, who came to
Congress over and over again in an effort to say: We don't want one
more kid in this country to be killed this way. We don't want one more
life to be cut short. We are tired of living in a country that doesn't
seem to care for us. We are tired of accepting odds that no other kid
in America or no other kid in the world has to accept for themselves.
Tom told me that he comes to Congress less and less these days
because there are a lot of other ``me's'' out there now. There are so
many other people that have had the same experience that Tom Mauser and
his family have had. But I will bet if he thought there was a chance,
he would be back here, and even if he thought there wasn't a chance.
And he has made a huge difference in Colorado.
And I am not singling him out either. I mean, many people who have
been through this in the State have raised their voices to be able to
accomplish the things that we have been able to do. But I think he set
such an incredible example for the rest of us, for anybody here who
thinks that we should just give up.
Just 10 days after his son was murdered, he was protesting the NRA's
annual convention, which was in Denver, CO, that year. And Tom has been
a fixture in the State capitol in Colorado where, because of him and
because of other advocates across the State, as a western State, which
has a long tradition of Second Amendment rights, we have been able to
enact one piece of sensible gun legislation after another--while
Congress has failed, failed, failed, failed.
After the massacre at Columbine, we closed the gun show loophole.
After the tragedy in Aurora, we strengthened background checks and
limited the size of magazines.
In the wake of the shooting at Club Q, we raised the age to purchase
a firearm from 18 to 21. If Colorado can pass
[[Page S2856]]
laws like that, there is no excuse for this place. And Colorado needs
this place to pass laws like the laws we passed in Colorado.
What sense is there to have--I mean, it makes sense to have
background checks in Colorado, but think about how much better it would
be if we had background checks that covered the entire country.
How much sense it would be if we limited the size of magazines the
way we have in Colorado, if we banned these weapons of war. I am
telling you young pages who are here, I guarantee you we are going to
do that someday. I guarantee you that we are going to do that someday,
and among many surprises that we have as a society when we look back
from there, when we look back from that future, this is going to be one
where we say to ourselves, What in the world were we thinking with
these weapons of war on our streets and in our classrooms in this
country?
What were we thinking when there were people here saying that that
was just the price of freedom?
So I think we can do this. I hope it is not going to take another 25
years. In fact, I don't think it is going to take another 25 years. And
I think it is because your generation is out of patience with us on
this issue. I think your generation is out of excuses or thinks we are
out of excuses and lame explanations. And like so many other things,
you know that there is an answer here and that the State--as I say,
like Colorado can do it, we can do it. And I have met with so many
people now over the years who have said: In that instant, my life
changed forever; our family's life changed forever; we never thought it
could happen to us; I never thought I was saying goodbye that morning
for the last time.
And 25 years ago on that April day, our entire country was changed
forever. But we haven't changed it for the better.
And there isn't anybody else on planet Earth who can do it except for
the people who occupy these desks and the desks down the hall in the
House of Representatives.
So as we pay tribute, and I hope we all will, to the 13 lives that
were taken too soon at Columbine, we need to rededicate ourselves to
freeing every American, and especially our children, from the threat of
gun violence. And I would say to this next generation too: I hope you
will take inspiration from the work of Tom Mauser and the work of the
kids at Parkland and the moms who wear those red shirts demanding that
this country get better and people all over this country who are acting
out of the memories of their loved ones, not for the sake of their
loved ones who are gone but for the idea, for the sake of the idea that
it should never happen again. That is what people say.
I am always amazed when people come here to Congress when there is so
much cynicism that is well-earned about this place, and yet they will
come here and they will advocate on behalf of their kids, kids who have
died of fatal diseases, advocating for research that we can put those
diseases in the rearview mirror, and the strength it takes for somebody
to come here who has lost a child under those circumstances. I always
say that I am so grateful that you came. I am so grateful you came
because there are a lot of people who can't come here who are in the
same circumstance that you are in. Thank God you are here having this
conversation.
But it is almost impossible to imagine the strength that it takes to
come here and lobby this body on the subject of gun violence when you
have lost a loved one in America, when you know that, as the years have
gone by, matters have gotten worse. We have become the leading--where
gun deaths have become the leading cause of death of children in this
country as opposed to any other, and you still come.
And so I say to the young people who are here today and to the young
people all over America: You can't give up. Our hope is in you and we
have to deliver and we will put the scourge of gun violence behind us.
I know we will.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SULLIVAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ambler Access Project
Mr. SULLIVAN. Mr. President, I am going to come down to the Senate
floor right now and build on my Senate colleague from Alaska, Senator
Murkowski's, remarks that she just made dealing with national security,
the challenges we are facing as a country, the authoritarian
dictatorships on the march, and what the Biden administration is
actually going to do to my State--our State, Senator Murkowski's and my
State--tomorrow. What we have been told by the Biden administration:
Hey, Alaska Senators, here it comes. More crushing of the State of
Alaska.
And why this should matter, not just to my constituents--which it
really does; they are going to be really upset about it--but this
should matter to every American who cares about our country's national
security and energy security and jobs and the environment.
So we all know the United States is facing very serious global
national security challenges. In fact, we are living in one of the most
dangerous times since World War II. I think anyone who is watching
recognizes that. We had the Chairman of the Joint Chiefs and the
Secretary of Defense testify in front of the Armed Services Committee
just last week. They said that.
Dictators in Beijing, Moscow, Tehran, and North Korea are on the
march. They are working together to undermine America's national
security interest and those of our allies across the globe. That is
happening. I think pretty much everybody here recognizes that.
At other times of dangerous global challenges and peril, the normal
policy approach of Democrat administrations, Republican
administrations--doesn't matter--has been to maximize our country's
strengths while undermining the strengths of our adversaries. That is
how you beat them. And here in Congress, over decades, we have
supported such policies.
But the Biden administration is not normal. Indeed, this
administration deliberately is undertaking policies to punish
Americans, undermine our core strengths, while continuing to empower
our adversaries.
Now, OK, I know some of you who are watching say: Wow. That is a
pretty big charge, Dan. What are you talking about? Well, let's get
into that. What am I talking about?
I have this chart right up here. The President is making a choice
tomorrow. Is he helping out with our dictatorship adversaries or is he
going to help out working men and women in Alaska and our country's
national security?
Let's take the example of Iran. Due to the successful comprehensive
approach to sanctioning Iran's energy sector by the Trump
administration, by the end of the administration--3 years ago--Iranian
exports were down to about 200,000 barrels a day, leaving Iran--the
world's largest state sponsor of terrorism, the country that swears to
wipe Israel off the map--by the end of the Trump administration's
massive sanctions policy against Iran, they had about $4 billion in
foreign reserves. For a country that size, that is not a lot--$4
billion.
So what do we have with the Biden administration? They started their
appeasement policy of Iran from day one, and one element of that was to
stop enforcing these oil and gas sanctions. I don't know why, you know,
appeasement. Maybe we are going to get back into the JCPOA they
thought.
But they did that. There is no one who doubts that. Jake Sullivan and
the President of the United States, they will all admit it because here
is the result: As a result, the amount of oil that Iran has started to
export over the last 3 years has been up every year, and it is about
over 3 million barrels a day--200,000 barrels a day at the end of
Trump, 3 million barrels a day now.
Foreign reserves that the Iranians have are about $75 billion. Four
billion at the end of Trump, 75 billion right now during the Biden
administration.
And, of course, the terrorist leadership of Iran is using this
windfall, as everybody knew they would, to fund their terrorist
proxies: Hamas, Hezbollah, the Houthis. Remember, you don't have those
proxy terrorist groups at all if you don't have Iran.
[[Page S2857]]
Iran funds them; they train them; they resupply them with missiles.
So these groups are not only vowing to wipe Israel off the face of
the Earth but aggressively targeting the U.S. Navy and American sailors
and marines in the Red Sea. So that is happening.
China is buying about 80 percent of that Iran oil. So they are being
helped by this policy that the Biden administration has to lift
sanctions on the Iranian oil and gas sector. And, of course, China is
also dominating rare earth and critical minerals throughout the world.
Hardly a day goes by without a story being published in the American
media about the danger to America's economic strength, transition to
cleaner energy, and national security that is posed by China's
domination of critical minerals around the world: mining them,
processing them.
So those are two important trends that are happening: Iran's
dominance on exporting oil and gas, the funding they get from that. The
Chinese benefit; they get oil at a discounted price, and China
continues to dominate critical mineral around the world.
So what is the Biden administration doing to reverse these very
troubling national security trends? They are undertaking policies that
will make them much worse. Tomorrow, the Biden administration has let
the media know--they started leaking this at the beginning of the week.
By the way, they let the Alaska delegation know much later. They wanted
the liberals in the media to know. But here is what they are going to
do. They are going to announce that they are shutting down from further
development two of the most important areas of energy and critical
mineral development in America, the National Petroleum Reserve of
Alaska, what we call NPR-A, and the Ambler Mining District in Alaska.
So, tomorrow, the Biden administration is going to announce that it
is sanctioning Alaska. They are not going to sanction Iran. They let
China produce all the critical minerals. Tomorrow, they are going to
sanction Alaska, Americans, my constituents.
I mean, you can't make this stuff up. They are coming after the
people I represent, and the terrorists in Iran: Hey, drill, baby,
drill. It is nuts. It is an insult.
Let me give you a little more detail on what this means. I talked
about the National Petroleum Reserve of Alaska. This is a part of the
North Slope of Alaska, about the size of Indiana. It was set aside by
President Warren Harding in 1923 for oil for the country, particularly
the U.S. Navy. They actually called it the Navy Petroleum Reserve, and
then in the 1970s Congress called it the National Petroleum Reserve.
This isn't ANWR. This isn't a wilderness area. This is an area
designated by this body for American oil and gas development because we
need it.
This is one of the most prolific oil basins on the planet Earth.
Estimates close to 20 billion barrels of conventional oil, 15 trillion
cubic feet of natural gas, as I mentioned, one of the most prolific
areas in the world for oil production.
It is right next to existing infrastructure. And, oh, by the way, it
is developed with the highest environmental standards in the world.
Do you think the Iranians have high standards?
Do you think the Chinese do, when they mine their critical minerals?
Do you think the Russians do?
Do you think the Saudis do?
They don't.
The place that has the highest environmental standards in the world
on resource development, by far, is my State, hands down. Everybody
knows it.
So what does the Biden administration do? Drill, baby, drill for the
ayatollahs who don't give a damn about the environment. Alaska, with
the highest standards in the world--we are going to shut you down.
So tomorrow the Biden administration is going to announce it is going
to take 13 million acres of the National Petroleum Reserve off the
table for development.
Wow, that is a good idea, Joe. That is a really good idea for the
national security and energy security of our country. Let the
terrorists here drill and let Putin drill, and you are going to shut
down Alaska--13 million acres.
Let's go to the Ambler Mining District. It is considered one of the
most extensive sources of undeveloped zinc, copper, lead, gold, silver,
cobalt anywhere in the world. Senator Murkowski did a good job just a
couple of minutes ago explaining what we have in the Ambler Mining
District in Alaska in America. Again, when we mine in Alaska--highest
standards in the world, by far. Not even a close call.
Do you think the Chinese have high environmental standards when they
mine?
Yeah, they don't.
So this part of Alaska, part of America, is critical for the minerals
we need for our renewable energy sector; for our economy, of course, to
compete against China; and for our national security--F-35s have all
kinds of critical minerals that we need and rare Earth elements.
But, tomorrow, the Biden administration is going to announce that
they are going to reverse a previously permitted road--by the way, with
a 7-year EIS that cost 10 million bucks which we paid for in Alaska
that was permitted. Tomorrow, the Biden administration is going to
announce that they are going to reverse that permitted road and say:
Ah, Ambler Mining District, America--sorry, off limits.
Our adversaries will certainly be celebrating these national security
suicide measures of the Biden administration. It is only going to
strengthen them. Putin, Xi Jinping, the terrorists in Iran, North
Korea--they are going to be like: Holy cow, these Americans have all
this stuff in Alaska and Joe Biden and his radical allies are going to
shut it down.
Xi Jinping is going to be like: Damn, the Americans are going to be
more reliant on us for critical minerals. I guarantee you they were
worried about the Ambler Mining District. But don't worry, Xi Jinping.
Joe Biden is sanctioning my State. Don't worry. He is sanctioning
Alaskans. He won't sanction the Iranians; drill, baby, drill with them.
But you are going to sanction Alaskans.
So this is just insanely stupid policy. Everybody knows it.
But I want to mention something else. These policies are also
lawless. Even my colleagues on the other side of the aisle who don't
always get it when it comes to American energy, Alaskan energy--you
should get it when we pass laws that say: You got to do X, Y, and Z,
and when we pass laws that say things like ``shall.''
The Biden administration doesn't get it, especially when it comes to
Alaska. We passed, in 2017, the requirement to do two lease sales for
ANWR. My State had been working on that for 40 years. The leases, the
first one was done during the Trump administration. The Biden
administration came along and said: Oh, we are going to cancel those
leases. No reason--lawless.
But let me just give you an example. So they are going to take half
of the NPR-A off the table tomorrow for development--13 million acres--
even though Congress, in 1980, directed the Secretary of the Interior
to conduct an expeditious program of competitive leasing for oil and
gas in the NPR-A. So we are telling any executive branch official: Hey,
you got to develop the NPR-A. It is for America. It is for the oil and
gas that we need. Tomorrow, Joe Biden is going to say: Congress, we
don't need to listen to you.
That is lawless action No. 1 as it relates to NPR-A.
But lawless action No. 2 that they are going to announce tomorrow on
the Ambler Mining District is a real shocker. I mean, even Joe Biden
and his lawless administration have to be blushing on this one.
By the way, there were some emails. There was a FOIA request when
they said: We are going to cancel those ANWR leases even though
Congress said we had to do it. This is the Biden administration
canceling the leases. OMB--in emails back and forth between the
Interior and OMB and the Biden administration--OMB was like: Hey, wait
a minute, where do you get the legal authority to do that?
This is the Biden administration's OMB. This is in emails with the
Interior, Deb Haaland. They are like: Yeah, whatever. We don't care. We
are just going to cancel them.
So then, they are going to take NPR-A off the table, and now with the
Ambler Mining District, the law is very, very clear. I will read it to
you.
[[Page S2858]]
This is on the Department of the Interior's website right now as we
speak. Their website says ANILCA--a really important law, Alaska
National Interest Lands Conservation Act, which was passed in 1980--
mandates a right-of-way to the Ambler Mining District. Senator Stevens
put that in there. Congress agreed.
Here is a poster of Secretary Haaland's Department of the Interior
website right now. It says:
(ANILCA) requires that a right-of-way access be permitted across NPS
lands for this project.
The Ambler mining project, OK? That is what the Department of the
Interior website says right now.
And here is actually the language from the law:
Congress finds that there is a need for access for surface
transportation purposes across the Western (Kobuk River) unit
of the Gates of the Arctic National Preserve (from the Ambler
Mining District to the Alaska Pipeline Haul Road) and the
Secretary shall permit such access . . .
``Shall.''
I ask unanimous consent to have this printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
ANILCA, PL 96-487 Sec. 201
SEC 201 (4)(a) Gates of the Arctic National Park,
containing approximately seven million fifty-two thousand
acres of public lands, Gates of the Arctic National Preserve,
containing approximately nine hundred thousand acres of
Federal lands, as generally depicted on map numbered GAAR-
90,011, and dated July 1980. The park and preserve shall be
managed for the following purposes, among others: To maintain
the wild and undeveloped character of the area, including
opportunities for visitors to experience solitude, and the
natural environmental integrity and scenic beauty of the
mountains, forelands, rivers, lakes, and other natural
features; to provide continued opportunities, including
reasonable access, for mountain climbing, mountaineering, and
other wilderness recreational activities; and to protect
habitat for and the populations of, fish and wildlife,
including, but not limited to, caribou, grizzly bears, Dall
sheep, moose, wolves, and raptorial birds. Subsistence uses
by local residents shall be permitted in the park, where such
uses are traditional, in accordance with the provisions of
title VIII.
(b) Congress finds that there is a need for access for
surface transportation purposes across the Western (Kobuk
River) unit of the Gates of the Arctic National Preserve
(from the Ambler Mining District to the Alaska Pipeline Haul
Road) and the Secretary shall permit such access in
accordance with the provisions of this subsection.
(c) Upon the filing of an application pursuant to section
1104(b), and of this Act for a right-of-way across the
Western (Kobuk River) unit of the preserve, including the
Kobuk Wild and Scenic River, the Secretary shall give notice
in the Federal Register of a thirty-day period for other
applicants to apply for access.
(d) The Secretary and the Secretary of Transportation shall
jointly prepare an environmental and economic analysis solely
for the purpose of determining the most desirable route for
the right-of-way and terms and conditions which may be
required for the issuance of that right-of-way. This analysis
shall be completed within one year and the draft thereof
within nine months of the receipt of the application and
shall be prepared in lieu of an environmental impact
statement which would otherwise be required under section
102(2)(C) of the National Environmental Policy Act. Such
analysis shall be deemed to satisfy all requirements of that
Act and shall not be subject to judicial review. Such
environmental and economic analysis shall be prepared in
accordance with the procedural requirements of section
1104(e). The Secretaries in preparing the analysis shall
consider the following--
(i) Alternative routes including the consideration of
economically feasible and prudent alternative routes across
the preserve which would result in fewer or less severe
adverse impacts upon the preserve.
(ii) The environmental and social and economic impact of
the right-of-way including impact upon wildlife, fish, and
their habitat, and rural and traditional lifestyles including
subsistence activities, and measures which should be
instituted to avoid or minimize negative impacts and enhance
positive impacts.
(e) Within 60 days of the completion of the environmental
and economic analysis, the Secretaries shall jointly agree
upon a route for issuance of the right-of-way across the
preserve. Such right-of-way shall be issued in accordance
with the provisions of section 1107 of this Act.
Mr. SULLIVAN. The Biden administration, tomorrow, is going to say: We
don't care about the law. We are going to take that off the table and
reverse the EIS and the road that you guys have, tomorrow--for good.
Again, who is going to benefit?
Who is going to benefit?
Well, I think these dictators are going to benefit--the Ayatollah, Xi
Jinping. Certainly, the Alaska workers aren't going to benefit. That is
a big issue.
The Presiding Officer is my friend, but I am going to say something I
said on the floor many times. When it comes to national Democratic
policy, when they have a choice between that guy or that woman building
a pipeline--the great men and women who built this country--their
interests--because everybody wants to develop resources in my State;
that is the Trans-Alaska Pipeline--or the interests of the radical far
left who is driving these policies to shut down my State, every time,
the national Democratic leaders go with the radical far left, and they
tell that young woman who is building that pipeline: Good luck. Sorry
for your job that you just lost.
So the working men and women of Alaska, of America, because these are
big projects, they are going to lose.
But I will tell you who else is going to get hurt really badly by
this--and this is a fact--by these decisions tomorrow: These great
people. These great people.
This is a picture of some of the Inupiat Native Alaskan leaders from
my State. They live on the North Slope of Alaska. They have been living
there for thousands of years--thousands of years. They are fully,
unequivocally against this rule that Secretary Haaland and the White
House are putting out tomorrow--100 percent against it--the tribal
leaders, the borough leaders--that is our new borough mayor, the North
Slope borough, Josiah Patkotak--the Alaska Native Corporation leaders.
They are fully against this. Every Alaskan Native leader who lives up
there--this is where they are going to do this. This is their homeland.
And the Biden administration tomorrow is going to look at them and go:
We don't care what you think. We don't care what your interests are.
The lower 48 eco-colonialists are telling us what to do, so you Alaska
Natives, tough luck.
Now let me tell you a story that is really infuriating. We held a
press conference a couple months ago in Alaska, led by these great
Alaskan Native leaders. They are wonderful, incredible people. They
have been living in Alaska for tens of thousands of years. They don't
like this rule, so they come to DC. They came to DC eight times--eight
different times--traveling over 4,000 miles. The leaders of the North
Slope, where the Biden administration is going to issue this rule
tomorrow, eight times they came to DC, flew here, and asked for a
meeting with Secretary Haaland to advocate: Madam Secretary, this is
bad for us. Bad for our future. Bad for our economy. Bad for jobs. We
do not want this rule. Hear us.
Eight times they have come here.
Do you know how many times Secretary Haaland met with them, the
leaders of the North Slope, the Inupiaq Native leaders of the North
Slope? Eight times they came to this city flying 4,000 miles. Guess how
many times Deb Haaland, who has an Indian trust relationship with these
great Americans, guess how many times she met with them?
You know the answer: Zero. Zero.
They came here. They came here eight times.
So we held a press conference with that banner: ``Secretary Haaland,
Hear Our Voices.''
She doesn't want to hear their voices.
She doesn't want to hear their voices.
She won't hear their voices.
You want to talk about cancel culture?
This administration talks a big game about, oh, we are going to take
care of the indigenous people of America, the people of color. But,
guess what. There is a giant asterisk when it comes to that policy on
the Biden administration: Not if you are an Alaskan Native. Not if you
are an Alaskan Native. If you want to develop your resources, we are
not going to listen to you at all.
Eight times they came to this city. Eight times Deb Haaland said:
Sorry, I am not listening to you. I am not going to listen to you. I am
not going to meet with you.
So what is going to happen tomorrow? The Biden administration is
going to issue a rule that every single one of these leaders is
adamantly opposed to, and not one official in this administration gives
a damn.
[[Page S2859]]
Let me give you a couple of quotes from these great Alaskan Native
leaders. This is Charles Lampe, President of the Kaktovik Inupiat
Corporation. This is about the Department of the Interior's actions
locking up their lands. These are their lands. This is not Interior's
lands, not Deb Haaland's lands.
We will not succumb to eco-colonialism and become
conservation refugees on our own lands.
That they have lived in for 10,000 years.
The [Inupiat] people have every right to pursue economic,
social and cultural self-determination.
My community unapologetically supports the leasing program.
ANWR--that is what he is talking about.
Many people try to steer the debate to caribou. For
Kaktovik, it's about our people and having an economy to
survive.
Here is Nagruk Harcharek. He is the president of the Voice of the
Arctic Inupiat, this great guy right here. He is talking about the NPR-
A rule that Secretary Haaland won't meet with him on. In this press
conference, here is what he said:
[This NPR-A rule from the Department of the Interior] is
yet another blow to our right to self-determination in our
ancestral homelands, which we have stewarded for over 10,000
years.
That is Nagruk Harcharek right there, talking:
Not a single organization or elected leader on the North
Slope [of Alaska] which fully encompasses the [National
Petroleum Reserve of Alaska] supports this proposed rule.
None of them do.
Joe Biden, Secretary Haaland, are you listening? None of these great
Alaskan Native people want this rule. And you don't give a damn.
He continues:
In fact, everyone has asked the [Department of Interior and
Secretary Haaland] to rescind the rule . . . [These] actions
will also foreclose on future development opportunities and
long-term economic security for North Slope Inupiat
communities . . .
The Native communities.
You can tell I am a little mad because these great Alaskans are being
canceled. Secretary Haaland will not hear their voices. We are going to
see that tomorrow. They are going to issue a rule that locks up a huge
chunk of their homeland.
Here is the bottom line: The Biden administration sanctions
Alaskans--sanctions them--while the terrorists in Iran and the
communists in China get strengthened by their policies. No wonder
authoritarians are on the march.
You are sanctioning us. You are sanctioning them. The goal is to
sanction the terrorists, not these great Americans whom you won't
listen to.
When I say ``sanctioning Alaskans,'' I am not just talking about what
we are going to see tomorrow--which, by the way, again, every American
should be worried. They are going to shut down one of the biggest oil
basins in America and one of the biggest critical mineral basins in
America. For what? Well, I think we all know for what. Joe Biden is
kowtowing to the far-left radicals because that is the way he thinks he
is going to get reelected.
But how bad is it when I talk about sanctioning Alaska? Here is how
bad it is: My State, since the Biden administration came into office,
has had 60 Executive orders and Executive actions exclusively focused
on Alaska--60. Tomorrow, it will be 61 and 62. It hits every part of
our State--every resource development project, every access to Federal
lands, every infrastructure project.
We got a lot done during the Trump administration, a historic amount
of things done for Natives, for non-Natives--things we had been trying
to get done for Alaska for decades. During the Trump administration,
working with a Republican Congress, we got a ton done. The Biden
administration comes in, and on day one--day one--they start their war
on Alaska.
This is a tough chart to read. These are the specific 60 Executive
orders and actions targeting Alaska by the Biden administration on day
one.
By the way, that is the President's first day in office, January 20,
2021. He issued 10 Executive orders and Executive actions exclusively
focused on Alaska--10.
So this administration loves to sanction us. It loves to sanction
Alaskans. When that happens, you are hurting the country. We need
Alaska's resources--our oil, our gas, our renewables. We are proud of
all of it, and we have the highest standards in the world on the
environment. So this is really bad for my State.
By the way, I was in the Oval Office last year, trying to convince
the President not to keep crushing Alaska, and I handed him this chart.
At the time, it was 46 Executive orders. Now it is 60--62 tomorrow. I
handed him that.
I was respectful--I am in the Oval Office--but I said: Mr. President,
do you know what you are doing to my State? Do you have any idea what
you guys are doing?
At the time, it was 44 Executive orders and Executive actions
singularly focused, exclusively focused on Alaska.
I handed him this. I said: Sir, this is wrong. You know it. I know
it. It is wrong. If a Republican administration came in and issued 44
Executive orders and actions targeting little Delaware--sorry; it is
little--and you were still a U.S. Senator, sir, you would be on the
Senate floor, raising hell every day, because it is wrong. You know it,
and I know it, and it is wrong.
But let me end by saying this: It is not just wrong for Alaska. It is
not just wrong for Alaska. It is wrong for America. The President is
making a choice not just whether to stiff the working men and women of
our great Nation, which he is doing with these orders tomorrow, not
just whether he is going to hurt my constituents, which he is going to
do tomorrow, particularly the Native people, but whether or not to
damage our national security even greater. When you shut down the great
State of Alaska's potential and ability to produce natural resources
for America, you are hurting the country--it doesn't matter where you
live. He is making a choice to favor these terrorists over these
workers, to favor these terrorists over these great Native people in my
State.
Here is the message they are going to be sending--the Biden
administration is going to be sending to the world tomorrow. They are
going to be sending this message to the dictators in Iran, in China, in
Venezuela, in Russia. President Biden is essentially going to be saying
this: We won't use our resources to strengthen our country. Sorry,
Alaska. You are off the table. But we are going to let you dictators
develop your resources--Iran--to strengthen your country.
I will end with this: I will never forget a meeting I had many years
ago with the late Senator John McCain and a very brave Russian
dissident named Vladimir Kara-Murza. A lot of my colleagues know who
Vladimir Kara-Murza is. As a matter of fact, a bunch of us wrote a
letter on his behalf. Putin has poisoned him twice. He survived those,
but now he is in jail in Moscow, and I worry about his life--a brave
man, a wise man.
Senator McCain, Vladimir Kara-Murza, and I were having a meeting, and
at the very end of the meeting, I said: Vladimir, one more question.
What can the United States do to further undermine the Putin regime and
other authoritarians around the world? What can we do?
He looked at me without even hesitating, and he said: Senator, it is
easy. The No. 1 thing the United States can do to undermine Putin and
other authoritarian regimes is produce more American energy. Produce
more American energy.
We are not doing that tomorrow. The Biden administration is going to
tell the world that we are going to shut down Alaska in terms of
critical minerals and any more oil and gas development. Joe Biden is
fine with our adversaries producing more energy themselves and
dominating the world's critical mineral supply while shutting down our
own as long as the far-left radicals he feels are key to his reelection
are satisfied. So they are probably going to be satisfied tomorrow, and
so are our adversaries. They are going to be gleeful. But certainly the
people I represent and I would say the vast majority of Americans who
understand these issues are going to be once again dismayed that this
administration is selling out strong American national security
interests and American strength for far-left radicals whom he listens
to more than the Native people of my State or commonsense Americans.
I yield the floor.
The PRESIDING OFFICER (Mr. Kaine). The Senator from Utah.
[[Page S2860]]
H.R. 7888
Mr. LEE. Mr. President, over the last few hours, I have listened to
debates occurring on the Senate floor over the Foreign Intelligence
Surveillance Act and specifically discussions surrounding section 702
of FISA, discussions surrounding, among other things, the FISA 702
reauthorization passed last week by the House of Representatives.
That bill they passed last week is commonly known as RISA, and under
RISA, there are a lot of conversations going on about what does and
what doesn't concern Americans, what should or shouldn't concern
Americans.
Under this bill I am going to be talking about today, RISA--it is an
acronym that stands for Reforming Intelligence and Securing America
Act. Like so many other bills that get passed by Congress, RISA has a
really Orwellian name. It purports to do something that, upon further
inspection, it doesn't do, and in some cases, it does quite the
opposite of that. So there has been a lot of misinformation being
peddled by the purveyors of the cult of infallibility surrounding FISA
and those who implement it, so I have come to the floor to dispel some
of those myths.
The first myth I would like to try to dispel today involves what
exactly it is that we are talking about with the FISA 702 collection
and what exactly it is that some of us find objectionable. Remember
that under FISA 702, a collection that is supposed to occur under that
section really doesn't trigger Fourth Amendment concerns. In fact, most
of what they collect I am willing to assume and have reason to believe
doesn't trigger Fourth Amendment concerns because it is there to
collect information about foreign adversaries operating on foreign
soil, doing things against American national security.
We are not concerned about someone plotting a terrorist attack
overseas as a non-U.S. citizen--we are not concerned about that
person's Fourth Amendment rights. We are concerned about that person
and what that person intends to do, but that person doesn't have Fourth
Amendment rights--at least not rights that are cognizable under the
U.S. system of government. That is why Congress was willing to enact
FISA--to allow for the acquisition of intelligence on foreign targets
operating outside the United States.
But under FISA 702, there are some communications from some U.S.
citizens that are, as we say, incidentally collected, that get swept up
into the collection under FISA 702--meaning, if you are a U.S. citizen
and you are in the United States and you have a phone call with
someone, there is a possibility that that person is outside the United
States and is not a U.S. citizen and might be under some sort of
collection--some kind of FISA 702 collection effort. There is a
possibility that when you talk to that person that that phone call is
being recorded or that text message exchange or that email thread is
being collected by U.S. intelligence Agencies, and we call that
incidental collection.
There are a lot of people who have come down here and have the
audacity to claim that the Fourth Amendment has no role to play
whatsoever under FISA 702. Now, in a broad sense, they have a point in
that what FISA 702 was created to do--and I assume--I certainly hope
that the bulk of what it does, the bulk of what it collects has no
Fourth Amendment protection attached to it, but some of it does, and
how you access that information after it has been incidentally
collected by our government and then stored in a U.S. Government
database under FISA 702--that matters.
One of the lies that I have heard perpetuated on this very floor on
this very day by some Members of this body is that somehow United
States article III courts, Federal courts, have concluded that FISA 702
collection just simply isn't a problem, and therefore we have nothing
to worry about here. That is misleading. It is misleading to a profound
degree, especially because in some instances these arguments have been
presented in a way so as to suggest that we have no Fourth Amendment
interest, no reason under the Fourth Amendment to care about the
querying of a specific U.S. person, a specific American citizen, to see
whether or where or to what extent that person's private communications
that are stored on the FISA 702 database exist--whether they exist and
then what the contents of them are.
In other words, if you want to search the FISA 702 database for a
specific American citizen, you can figure out, first, whether there is
information there; and, secondly, when you open it, you can read the
contents of it, figure out what that person said, to whom, when they
said it, how long they talked, and what else transpired.
This is a question on which no Federal court in the United States has
ever given its blessing, much less said that there are no Fourth
Amendment ramifications from this. In fact, some of the case law that
has been cited or referenced--indirectly, in some instances; directly,
in others--seems to suggest the exact opposite.
Each and every circuit that has addressed this has identified a
distinction. We have got, in one step, the incidental collection of
communications by a U.S. person who knowingly or unknowingly was
connecting with a foreign national located overseas, who happens to be
under surveillance under FISA 702. That is one question, a distinct
question.
We have come to accept the fact that some of that is going to happen.
It is not the collection itself that presents the Fourth Amendment
injury that we can remedy and must remedy here. It is, rather, the
second question: whether the querying of 702 data in its 702 database
for information on a specific American citizen implicates the Fourth
Amendment, thus requiring a warrant in order to search for that
American's stored private but incidentally collected information.
Each circuit that has identified this second step to which I refer
after the incidental collection--the query--each circuit that has
identified that as a separate step has acknowledged that it presents
different Fourth Amendment questions from the first step, and both
circuits have declined to answer that question.
It, thus, remains an open question. And it is my frustration with
those who have come down to this floor and suggested directly and
indirectly that this matter is closed; that it has been considered and
decided by multiple circuits, no less; that we have got nothing to
worry about under the Fourth Amendment here. That simply is not true.
Let me read to you an excerpt from one of the cases most frequently
cited. This is the ruling from the U.S. Court of Appeals for the Second
Circuit, a case called the United States v. Hasbajrami. You can find it
at 945 F.3d--again, decided by the Second Circuit in 2019. Here is what
they said:
But querying the stored data does have important Fourth
Amendment implications, and those implications counsel in
favor of considering querying a separate Fourth Amendment
event that, in itself, must be reasonable.
What kinds of querying, subject to what limitations, under
what procedures, are reasonable within the meaning of the
Fourth Amendment, and when (if ever) such querying of one or
more databases, maintained by an agency of the United States
for information about a United States person, might require a
warrant, are difficult and sensitive questions. We do not
purport to answer them here, or even to canvass all of the
considerations that may prove relevant or the various types
of querying that may raise distinct problems.
Then another circuit, the Tenth Circuit--the Tenth Circuit, where I
have argued dozens of cases, and that includes my home State, Utah,
along with a number of other States in the West--decided another case
that also recognized this distinction. This case was decided in 2021.
It is called United States v. Muhtorov. It is found at 20 F.4th 558.
In this case, the Tenth Circuit says that Mr. Muhtorov's Fourth
Amendment argument, specifically on this point, ``asserts the
government unconstitutionally queried Section 702 databases using
identifiers associated with his name without a warrant. He contends
that querying led to retrieval of communications or other information
that were used to support the traditional FISA applications. But this
is sheer speculation. There is nothing in the record to support that
evidence derived from queries was used to support the traditional FISA
applications.''
The Tenth Circuit then goes on to say:
[[Page S2861]]
The record confirms that the relevant evidence did not
arise from querying. We therefore do not address Mr.
Muhtorov's second Fourth Amendment argument.
Querying might raise difficult Fourth Amendment questions
that we need not address here.
So like the Second Circuit Court of Appeals, the Tenth Circuit Court
of Appeals also acknowledged that that is a different question, a
second question--one that almost certainly raises Fourth Amendment
questions, Fourth Amendment questions that weren't addressed by that
court.
Notice, by the way, some of the language used. This highlights some
of the problem, some of the reason why we need to be concerned about
this. They said that there is nothing in the record to support where
exactly that evidence came from. That is part of the problem, you see,
with the Foreign Intelligence Surveillance Court, or the FISC, as it is
sometimes known. It operates in secret.
Having the FISC operate in secret for purposes limited to
communications involving foreign nationals operating on foreign soil
undertaking acts hostile to the United States of America, that is one
thing. But we have reason to be concerned when they operate in secret
and don't have additional legal requirements to follow with respect to
a query specifically identifying a particular American citizen. We
should all be concerned about that.
We should be even more concerned about it, given this feature that
the Tenth Circuit acknowledged, which is that there is almost no way of
knowing or approving what they might gain. It is one of the reasons why
more exacting standards are required under the law.
The second broad misconception that I want to try to dispel--that has
been thrown around a lot today, and I suspect will continue to be
thrown around a lot today--is that somehow we are operating under a
really, really tight timeframe--a timeframe that acknowledges that
section 702 of the Foreign Intelligence Surveillance Act is going to
expire at midnight tomorrow, and that if it does expire--which they are
saying it will expire if we do anything other than just rubberstamp
this ham-fistedly drawn up and passed legislation from the House of
Representatives without doing our own homework, without dotting the i's
and crossing the t's and making sure that they did their job right,
which they did not--that the cost of that will be certain doom and
gloom because FISA 702 collection will abruptly cease at exactly
midnight tomorrow night.
I would otherwise make mention here of the fact that we have known
for months, since December, that April 19 at midnight this deadline was
happening. You have seen a deliberate decision in both Houses of
Congress. They have religiously, scrupulously avoided bringing it up
until just days before that deadline occurs. So they have contrived the
very deadline that they are now trying to use as leverage to manipulate
our votes to prevent us from doing our jobs to make sure that the i's
are dotted and that the t's are crossed and that the American people's
Fourth Amendment rights aren't being steamrolled. Shame on them.
I said if I had more time, I would go into that. But I won't because
there is another much better argument to make here.
They are lying. They are lying when they say that FISA 702 collection
will end abruptly at midnight tomorrow. It will not. The reason we know
it will not is because when they shamelessly reauthorized this thing in
another eleventh-hour vote back in 2018, our foreign intelligence
Agencies and the clever lawyers who work with them threw in language
anticipating then that the next time around--that next time when the
bill came due late last year in 2023--that there might be a moment then
of hesitation because the truth would catch up to them by then that
FISA 702 is rife with opportunities for abuse of Americans' Fourth
Amendment rights.
Recognizing that, they built into the legislative text, which they
dropped at the very last minute and passed by the thinnest of margins,
language to guarantee that, even if FISA 702 were to lapse, that as
long as there was a certification by the FISC, or the Foreign
Intelligence Surveillance Court, a recertification of the FISA 702
collection program broadly--not specific orders regarding specific
targets, just the program broadly--that that certification would allow
for all FISA 702 collection to continue for 365 days following the
issuance of that certification by the FISC, even if during that 365
days, whether at the beginning or near the end of it, FISA 702 had
lapsed.
Now, just last week--in fact, I believe it may have been a week ago
today--the FISC granted another FISA 702 program certification. What
that means is that, because the language that was adopted in 2018
continued until December of last year, and, in December of last year,
we punted this issue forward to April 19 of this year, they reenacted a
version of that same language from 2018 into the 2023 short-term
extension. So it says the same thing.
And because we got, just last week, the FISC certification, that FISC
certification and all 702 collection remain lawful 365 days into that,
even if FISA 702 lapses statutorily in the meantime.
Mr. SCHUMER. Would my colleague yield so I can make a brief
announcement about schedule to inform the Members?
Mr. LEE. I will do so.
Mr. SCHUMER. I appreciate his courtesy. Thank you.
The PRESIDING OFFICER. The majority leader.
Order of Business
Mr. SCHUMER. Mr. President, we do not expect votes this evening, but
we are continuing to work on an agreement on the FISA bill. Members
should expect votes tomorrow.
I yield back to my colleague and thank him for his courtesy.
H.R. 7888
Mr. LEE. Thank you.
I am glad to hear that we will be having votes tomorrow. We need
votes tomorrow, for some of the reasons that I am discussing. We
shouldn't fear those votes.
There is a great song by Blue Oyster Cult: ``(Don't Fear) the
Reaper.''
We are lawmakers. It is what we do. We cast votes. We vote on
amendments. We shouldn't fear votes. We shouldn't fear doing our jobs.
I have heard it said many times: If you don't like fires and you
can't stand being in their presence, then you shouldn't become a
firefighter. And if you can't handle taking tough votes, for heaven's
sake, you shouldn't be a lawmaker. So that is what we need to be
talking about.
One of the reasons why people are fearing the reaper here, fearing
amendment votes here--even though there is nothing to fear--they are
wanting people to fear those amendment votes because they say: If we
cast any amendment votes, if we depart in even the slightest degree
from what the House, in its supposedly infinite wisdom, passed last
week--with its ham-fisted draftsmanship and its manipulated, truncated
approach to voting on amendments over there--that if we depart from
that to even the slightest degree, it will be Armageddon, dogs and cats
living together in the streets. It will be Armageddon stuff playing out
in America. We are all going to blow up. We are all going to die
because all FISA 702 collection is going to come to an abrupt halt.
That is a damned lie, and they know it is a damned lie because they
guaranteed that that would not be the case.
When I bring this language up to them, they have the audacity to tell
me: Oh, no, but that is all great and everything, but the reason it
would halt is because some of the service providers, some of the third-
party companies through whom they have to work to collect a lot of this
information, they are not smart enough to realize what it says. So they
are going to fight it, and some of them say they are going to sue us.
Yeah. Good luck with that. Good luck with that theory. In the first
place, if they are relying on the fact that they would sue the Federal
Government in order to not have to participate with them, I really
would like to see that because it is never going to happen. And if it
did happen, they would lose. And if they did try, it would take so long
to do it that it wouldn't do them any good, especially because they are
wrong.
The clock is, in one sense, ticking, but we have got an entire year
left before FISA 702 collection would even stop at all. Now, don't get
me wrong. I am not thrilled about that. That doesn't make me happy.
[[Page S2862]]
It was a manipulative thing to do when they added it. It was a
manipulative thing to do when they extended it using the same language.
But it is the law. And if they want the benefit of it, which they
clearly did just a few weeks ago--just like 3 months ago--then, you
know, if you pick up that stick, you are picking up both sides of the
stick. And the fact remains that the law makes abundantly clear that
FISA 702 collection is not going to halt at midnight tomorrow. It is
not going to halt until approximately April 10 or 11 of 2025.
Now, that does not mean we should wait until then to enact
legislation addressing these issues and we need not act until then, but
it sure as heck means that we can at least take the time to do our own
work. There is a reason why we have a bicameral legislative branch.
Washington described the Senate as the cooling saucer; tea would come
over sometimes very hot from the House, and it would have time to cool
over here. This tea hasn't had any time to cool, certainly not enough
time to cool, much less be aired and understood by those whose rights
may be affected by it.
So let's do away with those lies at the outset. It is completely fake
news; it is a complete, darned lie to say that courts have weighed in
and said that there is no problem with the U.S. person queries, to go
after a U.S. person's private communications incidentally collected
under FISA 702 and stored on a FISA 702 database.
Now, look, I get it. That doesn't fit well onto a bumper sticker.
Nobody is going to have that embroidered onto a pillow, although
someone should, but it is true.
Second, FISA 702 collection is not going to end tomorrow at midnight.
It is not going to end for almost a year. So let's get over ourselves,
and let's get over the lies and deal with the actual truth.
All right. Let's talk about RISAA again. I want to talk specifically
about RISAA and some of what RISAA does.
Now, a lot of people voted for RISAA over in the House, saying: Oh,
it does so much good. I voted for it even though I have concerns with
warrantless backdoor searches on Americans. I have got concerns with
that, too, but it did so much good, so many reforms. Just so many
reforms. Can't even count them. Reforms are so good. You can't let the
perfect be the enemy of the good.
Nonsense. Most of those reforms are fake. Some of them are worse than
fake. In fact, I could make an argument that RISAA amounts to a net
loss for Fourth Amendment privacy interests. Those folks over there who
tell themselves that to justify their votes, they are kidding
themselves, absolutely kidding themselves.
Let's go through some of the reasons why. When it comes to backdoor
searches of American citizens, the bulk of RISAA is just a codification
of preexisting internal FBI procedures, the same procedures that
continue to produce illegal queries of Americans' communications.
In fact, you know, I have been here since 2011. I have been on the
Judiciary Committee the whole time, had opportunities to have
conversations with FBI Directors serving under three different
Presidents, different political parties. They have all told me
variations of the same thing over the years: Don't worry about it. We
have got procedures to stop it. These aren't the droids you are looking
for. You really have nothing to worry about. In fact, you are kind of
stupid for even assuming that this is a problem because, in any event,
we at the FBI, we are serious about this stuff, and we have got
procedures that will stop it.
Well, fool me once, shame on you. Fool me twice, shame on me. Fool me
hundreds of thousands of times, that is not acceptable, not to anyone.
Look, RISAA fails to address the worst of warrantless 702
surveillance. It just does. It codifies the existing FBI requirement of
having prior approval from the Deputy Director of the FBI, not from an
article III court, a normal court, not from the Foreign Intelligence
Surveillance Act Court--or the FISC. And it has this requirement only
for sensitive queries involving a U.S.-elected official, a Presidential
appointee, or an appointee of a Governor, political organization, U.S.
media organizations, and so forth.
And then, for queries of religious organizations or batch queries,
RISAA requires preapproval, again, internal FBI approval only, from--
get this--an FBI attorney. What could go wrong? Great. So the Deputy
Director of the FBI, the current occupant of the legacy position once
held by Andrew McCabe. I am sure that will make a lot of Americans feel
a lot better. I am sure a lot of Americans will feel a lot better also
knowing that the likes of Peter Strzok and Lisa Page won't be involved
in this.
Look, there are a lot of great FBI agents out there, rank-and-file
FBI agents, a lot of great work that they do. The top brass at the FBI
is not held in as high esteem as they once were. In fact, that is
putting it really, really mildly and indeed euphemistically--not just
depending on your political leanings but based on what they have done,
based on the number of times we have been lied to, based on the number
of times we, as Members of the U.S. Senate and members of the public,
the voting public, we have been given assurances that time and time
again that have just turned out to be dead wrong.
So it is as though, under RISAA, they say: Hey, Mr. Fox, come on in.
Here are the keys to the henhouse. Have fun. Get stuff done, and use
your power and your keys responsibly. I am sure you won't be tempted to
do otherwise.
What? Do they think we are stupid? Do they think the American people
are stupid? They are not. They should know better. Shame on them, and
shame on our counterparts in the House of Representatives for thinking
that this is anything but insulting to the American people.
They say: Oh, don't worry about it. We have FBI internal controls,
FBI internal controls. We are putting the same darn people in charge of
this, the same people who have manipulated and abused this over and
over again. And we have said: You are in charge now. You will be
employing the same sort of reviews that you have employed on the honor
system in the past, knowing full well that the American public can't
see anything that you do. And we are supposed to trust you with that?
This is crazy.
This is the same FBI that approved the surveillance of President
Trump's campaign and has failed to prevent illegal queries year after
year after year, even after denying that they don't happen.
In all cases involving Americans but especially in these sensitive
cases, outside checks and balances--actual checks and actual balances--
on the use of surveillance authority should be firmly in place, but
alas they are not, nothing like them.
In addition to narrow queried preapproval requirements, RISAA
codifies additional changes to some of these internal FBI procedures
regarding the abuse of 702 queries of U.S. citizens by its agents. But
these internal procedures have not stopped violations, thousands of
which are occurring every year. In fact, we have had hundreds of
thousands. Until last year, I think we had over--it was in the hundreds
of thousands, like over 200,000, occurring several years in a row until
last year when they ramped down a bit. And in the meantime, all while
telling us that the same darn procedures that they are now codifying,
putting the same people in charge of enforcing them, of providing this
oversight--that those same people are now going to be put in charge of
making sure that they comply with the same requirements they have
already falsely been claiming to follow.
So what exactly is this going to stop? Well, it didn't stop the FBI
with the same personnel, employing the same standard from, I don't
know, let's think about the guy, the unsuspecting guy who wanted to
rent an apartment and, unbeknownst to him, the guy who owned the
apartment was an agent who decided that he would run the would-be
tenant through the FISA 702 database. Or what about the agent who had
some kind of an unparticularized suspicion or hunch, something that
wouldn't even most likely justify a Terry stop, that his father might
be cheating on his mother, and he therefore ran his dad through the
FISA 702 database. Or what about the unsuspecting 19,000 donors to a
particular congressional campaign, all of whom were run through the
FISA 702 database? Or what about
[[Page S2863]]
the Member of Congress who was run through the FISA 702 database?
These are just a few of the people we know about. Through some
miracle, we have been able to learn about the existence of those very,
very inappropriate, very, very unlawful, very indefensible searches--
searches approved against the backdrop of the same procedures, under
the supervision of the same people holding the same positions at the
FBI. So forgive me if I don't think that is necessarily going to change
a lot.
Now, RISAA purports to rein in warrantless searches of Americans'
information by ending the practice of querying data to find evidence of
a crime unrelated to national security. However, such queries represent
just a tiny fraction of warrantless violations of Americans' privacy.
Keep in mind, what we are talking about here are those that are
deemed solely for that purpose. They are there solely for the purpose
of looking for evidence of a crime. That was never a significant
percentage of the problem. It was always a tiny, tiny portion of the
problem. And in any event, this is entirely within the FBI's own
ability to circumvent just by recharacterizing the nature and purpose
of the query in question.
(Mr. King assumed the Chair.)
You know, of the more than 200,000 backdoor searches performed in
2022, the prohibition would have denied authority in exactly 2
instances--2 searches. And in both of those instances, the FBI could
easily have gotten around them by characterizing them differently than
they did. Again, this is not serious. This is not the kind of reform
that the American people are demanding. It is certainly not the kind of
reform that they deserve.
Now, when it comes to transparency and surveillance oversight, there
are a number of purported reforms that many Members of the House of
Representatives who voted for this are clinging to with all their
might, insisting that ``oh, these do a lot of good; these fix the
problem.''
But let's look into that. Let's look at what RISAA does to amicus
participation. Remember what ``amicus'' means. ``Amicus'' is short for
``amicus curiae.'' The plural of ``amicus curiae'' is ``amici curiae.''
It means ``friends of the court.'' And ``amicus curiae'' is a ``friend
of the court.''
Back in 2015, a bipartisan effort that I led on the Republican side
in the Senate, called the USA FREEDOM Act, was passed by Congress and
signed into law by President Obama. It imposed a number of reforms. It
ended the bulk of metadata collection, among other things. It also
imposed some requirements related to the FISC, allowing for the
participation of an amicus curiae before the FISC in a number of
circumstances--because, remember, in the FISC, unlike in ordinary
court, its members consist of presidentially appointed, life-tenured
article III Federal judges. But in their capacity, while they are
serving in their capacity as FISC judges, they sit in a courtroom
without opposing counsel. Only the government has historically been
present in those circumstances. And because of the sensitive nature of
some of the issues that we have described today, we created in the USA
FREEDOM Act provisions requiring the participation, in a number of
circumstances, for amicus curiae.
There have been no complaints about this not working well--none. I am
not aware of a single instance where amicus participation before the
FISC has caused a problem. And yet, consistent with its pattern and
practice of scanning the horizon, looking high and low to find a
solution in search of a problem, those loyal to the intelligence
Agencies over on the House of Representatives side have put in place
some very significant restrictions on amici before the FISC by limiting
the arguments amici can raise and by limiting those who can even serve
as amici in 702 proceedings.
Again, not one complaint that I am aware of has been raised on this.
Not one reason has been provided as to why they shouldn't do this--not
one. But they still said we have got to limit them.
RISAA's amicus provisions will actually weaken oversight, instead of
adopting the reforms that passed the Senate, 77 to 19, in 2020, as part
of the Lee-Leahy amendment, which would have strengthened oversight by
bolstering the role of amici.
By the way, that measure passed in 2020 by the Senate, 77 to 19, was
part of a legislative package expected, at the time, to move over in
the House, where it would have passed by correspondingly overwhelming
bipartisan supermajority margins over there, but for the fact that that
vehicle, for reasons unrelated to the Lee-Leahy amendment, caused that
bill to stall out. Now, 77 to 19, those are the margins by which this
passed the Senate just a few years ago.
That Lee-Leahy amendment would have created a presumption that amici
should participate in cases that raise critical issues--such as those
involving the First Amendment-protected activity of a U.S. citizen or
any other U.S. person, a request for approval of a new program, a new
technology, or a new use of an existing one, a novel or significant
civil liberties issue with respect to a known U.S. person or a
sensitive investigative matter--while giving the FISC the ability to
deny participation where there was some particularized reason why that
would be inappropriate.
Amicus participation is critical, especially so where you have this
kind of ex parte proceeding. An ex parte proceeding is one in which
only one side is represented by counsel. It is just the government's
lawyer and the judge or judges. Without an amicus, there is no one
there to look out for, to protect, to advocate for the rights of the
American public.
RISAA requires the government also to provide only limited and
inadequate presentation of what we call exculpatory evidence, the type
of evidence required by United States v. Brady in an ordinary Federal
court. By contrast, the Lee-Leahy amendment would have required a full
presentation to the court of all material, exculpatory evidence that
might come into play there. And this is absolutely necessary.
Now, why these guys chose to weaken that, I think, is consistent
with--I mean, we can only surmise what the reasons might be, but I
think they have a lot to do with the fact that, of course, no
government Agency wants additional responsibilities or additional
burdens. It makes additional work for them.
And that is the whole point. The whole point of the Fourth Amendment
is not to make the government's job more efficient. I am sure law
enforcement, domestically, would be a whole heck of a lot easier if
there were not a Fourth Amendment. That is not a reason to jettison the
protections of the Fourth Amendment.
And even though I am sure some of the legitimate foreign intelligence
gathering operations of our intelligence Agencies would be made easier,
less burdensome if we just threw all of these protections to the wind
and pretended that there aren't legitimate reasons related to Fourth
Amendment interests to be concerned here, should that make it easier,
that doesn't make it the right thing do. It doesn't mean that it is
consistent with the letter and spirit of the Fourth Amendment.
Look, this requirement about exculpatory evidence, as it is contained
in RISAA, just provides a mere veneer. It is a Potemkin village version
of the real thing, just the illusion of protection. This provision
draws near to the Fourth Amendment with its lips, but its heart is far
from the Fourth Amendment.
The FISC should be given all exculpatory material evidence before a
proven surveillance. We have to remember, in December of 2019, the
Department of Justice IG reported 17 errors and omissions in the FBI's
FISA applications, requesting authority to surveil President Trump's
Presidential campaign adviser, Carter Page.
Unsurprisingly, this included the failure to disclose the
unreliability of the Steele dossier, an opposition research document
with largely fabricated, unsubstantiated claims.
Now, unfortunately, the April 2020 memorandum from the inspector
general to FBI Director Wray proved that this was not an isolated
incident.
After a sampling of 29 FBI applications for FISA's surveillance of
U.S. persons, he found an average of 20 errors per application.
The Lee-Leahy amendment that passed, in 2020, with 77 votes in this
Chamber would have required that the
[[Page S2864]]
government provide all of that material--all material, exculpatory
evidence to the FISC--since the U.S. person being surveilled is
excluded from the FISA proceedings.
Next, we will turn to another provision that I think persuaded,
unfortunately, some Members of the House of Representatives to support
this bill, even though it lacked adequate substantial Fourth Amendment
reforms. I am referring, of course, to the protections directed
specifically at Members of Congress.
The RISAA bill provides protections not available to others,
specifically for Members of Congress. Think about this for a second.
One of the reasons why a number of people felt comfortable voting for
it was because of the belief--the mistaken belief, as I will explain in
a minute--that this protects rank-and-file Members of the House and the
Senate. I don't believe it even does that. But, even if it did, think
about what that says.
Anyone persuaded by this is tacitly admitting--if not to the public,
at least should admit to themselves--that, No. 1, this is enough of a
concern that they ought to be worried about it, such that they ought to
provide some sort of language requiring accountability for when they do
702 queries on individual Members of Congress. So they are
acknowledging that there is a problem, that it can be abused. But then
they are providing a type of accountability available only to Members
of Congress. That is kind of creepy.
If this thing is bad such that it needs protection, why not make that
protection or other similar protections available to Americans
broadly--to all Americans? Why limit this to Members of Congress?
So what it does is it requires notification not to all of Congress
but notification to congressional leaders--meaning to the law firm of
Schumer, McConnell, Johnson, and Jeffries and to the top Republican and
top Democrat of the House Intel Committee and the top Republican and
top Democrat of the Senate Intel Committee. Sometimes, collectively, we
refer to this as the Gang of 8.
It requires notification to them if FBI queries the name of a Member
of Congress, and RISAA requires prior consent from the Member of
Congress in question, but only if it wishes to perform a query on that
Member for purposes of a defensive briefing. Otherwise, if it is not
for the purpose of a defensive briefing, that Member doesn't get
notified.
But the law firm of Schumer, McConnell, Johnson, and Jeffries gets
notified, and the Intel bruhs--you know, the top heads of the Intel
Committee on both sides of the Capitol--they get notified too. Nobody
else does.
Now, it is not like they are going to feel inclined to notify the
Member. In fact, they are probably prohibited from doing so. Who
exactly does that protect? Why is that a good thing? If the querying is
being done, then you are allowing a tiny handful, 8 Members out of 535
sworn and currently serving Members of the legislative branch, who have
been elected by their respective States--8 of them, just 8 of them--to
get to know what they are doing about any and every other Member of
Congress. How is that going to help anyone?
In fact, how is that not something that could actually work to the
disadvantage of those being surveilled, except in the specific context
of a defensive briefing?
This is crazy. This is throwing gasoline on the fire. In addition to
giving the keys of the henhouse to the fox, you are then dousing the
whole thing with gasoline and then adding more gasoline to it after it
is on fire.
As much as anything, these are fake reforms. And to the extent they
are not fake, because they are available exclusively to Members of
Congress, they are a slap in the face to our constituents, who receive
no such protections--none. Including those protections shows that the
drafters of RISAA knew that there is a problem. It shows that those who
voted for it, who relied on this, to their detriment, understand how
invasive these queries really are. And that is why they want to protect
Members of Congress, even though they are failing to do that here,
unless they happen to be in the Gang of 8. That is why they are
claiming to protect themselves from being subjected to 702 queries
focused on them.
In reality, these protections for Members of Congress aren't just
self-serving, they are elusory. The consent requirement is flimsy, at
best, and there is an exception that quite arguably swallows the whole
rule, even where it might otherwise apply. And the FBI can, based on
the way it categorizes the search in question, it can get around it,
the consent requirement, even in the narrow circumstances where it
might otherwise apply. So this thing is a fake. But it is worse than
fake. I actually think it would be a detriment to privacy and even to
the interests of most Members of Congress.
Then we get to one of the big enchiladas of this: the electronic
communication service providers expansion, the so-called Turner
amendment. And it was basically drawn up and thrown together and thrown
into the bill at the last minute, rubberstamped by the House. This
particular provision of RISAA authorizes the largest surveillance
expansion of this type of surveillance on U.S. domestic soil since the
PATRIOT Act.
Egregious Fourth Amendment violations against the United States and
its citizens will, I am confident, increase dramatically if this thing
is passed into law. RISAA, as amended by the Turner amendment, would
allow the government to compel a huge range of ordinary U.S. businesses
and individuals--exempting only an odd assortment of entities,
including hotels, libraries, restaurants, and cafes--to assist the
government in spying on U.S. persons.
Currently, the government conducts 702 surveillance with the
compelled assistance of electronic communications service providers or
ECSPs. Historically, the definition of ECSP included those entities
with direct access to Americans' electronics communications; for
example, Google, Microsoft, Verizon, et cetera. This new proposition
would allow the government to compel warrantless surveillance
assistance of any provider of any service that has access to equipment
on which communications are routed and supported. This would include a
huge number of U.S. businesses that provide Wi-Fi to their customers
and, therefore, have access to routers and communications equipment.
Apparently, this provision is the result of the intelligence
community's ire at being told by the Feds that data centers for cloud
computing do not have to comply with FISA-compelled disclosures. House
Intel Committee members claim it was a narrow fix to allow the
government to compel information from a single service provider.
I don't buy it. The reason I don't buy it is because if that is what
it was supposed to do, they would have written it differently. They
didn't write it that way. They have smart lawyers. They are smart
people. They know exactly what they are doing. But even if they didn't
know what they were doing, we know what they did, and it is not good.
The fix was deliberately written, you see, in really broad terms to
conceal the particular provider at issue.
As written, the provision could be used to compel any service
provider that could potentially access communications equipment
including, potentially, janitors, people involved in repairs, plumbers,
to assist NSA in spying. Nothing in the language provides any backstop,
any limitation of the unfettered use of this newly, dramatically
expanded authority.
Moreover, because these businesses and individuals lack the ability
to turn over specific communications, they would be forced to give NSA
access to the equipment itself. The NSA would then have access to all
of the communications transmitted over or stored on the equipment,
including a trove of wholly domestic communications. It would be up to
the NSA to capture only the communications of foreign targets.
No disrespect to the fine men and women who work at the NSA, but it
is one of the most impenetrable--necessarily impenetrable--Agencies
that has ever existed in any government anywhere. Yet no visibility, no
transparency, no oversight there that is going to make any difference.
Giving the NSA access to Americans' communications on such a broad
scale is a recipe for disaster, and it is contrary to the purportedly
narrow focus of 702 on foreign targets.
Look, I have outlined some of the myths surrounding this whole FISA
702
[[Page S2865]]
debate. I explained that the collection under 702 is not going to go
dark if something doesn't pass immediately, meaning we are not forced
with this obstinate choice between having to accept lock, stock, and
barrel with no amendments, with no opportunity to review it, to air it,
to improve it, to make it better, to address the disaster that is the
Turner amendment, to address the hypocrisy and the sham that is the
Member of Congress exclusive protection; to address any of the glaring
omissions, including the failure to add any type of a warrant
requirement for communications--private communications--of U.S.
citizens incidentally collected and stored on a 702 database.
These are all lies that we can't address any of those to try to
include in this thing because FISA 702 collection is going to end
abruptly, tragically, at midnight tomorrow.
We already established this language that was first adopted in 2018
then reupped, renewed, and reenacted in December of last year to extend
this deadline to April 19. It makes clear that once the FISC has issued
a recertification of the program, 702 collection may continue unabated,
undisturbed even if FISA 702, itself, expires in the meantime, as long
as it is still valid at the time of the certification. That
certification was renewed a week ago, and so we have a year. We have a
year before that ends. Let's get rid of this nonsensical, unbelievable
lie that is being told that we are all going to die if we don't do it.
What do we need to do? First, we have to have an amendment process.
We have to have an amendment process that, among other things, allows
for a probable cause warrant to be the backstop of any U.S. person
query. We have language that I support that is being offered in a
Durbin amendment that would require that. And it would attach at the
moment they want to review the content, they want to do a U.S. person
query, to figure out whether it is there in an emergency or in some
other circumstance for some reason. Even if they do that, before they
open it, before they review the substantive content after doing a U.S.
person-specific query, they would have to get a warrant.
Mr. President, I ask unanimous consent that I be allowed to finish my
remarks within the next 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEE. So we need a probable cause warrant requirement. Now, all of
the sky-is-falling predictions about why that would be so bad to have a
probable cause warrant requirement is really not addressing the facts
here.
Look, I think we would have been just fine had we adopted what is
known as the Biggs amendment--you know, the amendment that failed by a
tied vote 212 to 212. And it failed, I believe, because they gaveled
out the second they saw that it was tied, even though there were still
more Members coming to the floor to vote--more Members coming to the
floor to vote--I was over there at the time--who were believed to be
intending to support it. They gaveled out the second they thought they
could get away with it and make it fail.
One of the reasons why it didn't get more votes is because of the
scare tactics associated with that and overblown, exaggerated concerns
that it would just make it impossible. You know, I heard members of the
intelligence community argue that it would just necessarily bring an
abrupt halt to everything we do in this area. It is not credible. It is
not true.
But even if that were true, let's indulge that for purposes of this
discussion. The same concerns are minimized by the warrant requirement
in the Durbin amendment. In the Durbin amendment, the warrant
requirement would be triggered not at the moment of the query itself,
but at the moment they want to open the results of the query so they
could see whether the particular U.S. person, the U.S. citizen
addressed in the search, triggered some kind of response. But then
before they could open the search result, read the contents of the
email, listen to the contents of the phone calls, read the text
messages, whatever it is, then they would have to go get a warrant,
unless they make the same argument here and scare people yet again
because this is what they do and they get away with it because they are
the spies, the spy Agencies: Trust me, trust me, people are going to
die unless Congress does exactly what I say.
That is what they say over and over again. You know, it gets really
irritating when they say the same thing year after year.
But lest they gain any advantage here by coming up with that, it
would affect such a tiny, tiny portion of all--you know, U.S. person
queries are a tiny fraction of all queries run on the FISA 702
database. I am told it is, likewise, a tiny percentage of all U.S.
person queries, something like 1 or 2 percent, that would be implicated
by the Durbin amendment's warrant requirement.
According to Senator Durbin, I believe the estimate he provided was
about eight queries a month would trigger that. That is not hard to
comply with at all. Those of us who have been prosecutors know it is
not hard to get a warrant, especially in a program as huge as FISA 702.
To suggest that it is just unduly oppressive for them to get up to
eight warrants per month when querying specifically for the private
communications of U.S. citizens on the 702 database, no, don't tell me
that is unduly burdensome. That is not credible.
So we need that amendment. It is not the only amendment we need, but
we definitely need that one. Without that one, I think this bill is an
absolute mistake without adopting that amendment.
There are other amendments as well. One that I will focus on is the
amendment I am running providing necessary reforms to the amicus curiae
process requiring the government to disclose exculpatory evidence. Yes,
it is essentially the same amendment. It does exactly the same thing as
the Lee-Leahy amendment but introduced now as the Lee-Welch amendment.
With a certain degree of poetic symmetry, I have united now with the
Senator from Vermont who took the place of our dear former colleague
Senator Pat Leahy. Peter Welch is now cosponsoring this measure with
me, and we introduced what is the Lee-Welch amendment, which would do
as I described a moment ago.
It would beef up the amicus curiae process participation, which has
been badly weakened and undermined by RISAA, and it would restore it,
making it just a little bit more like the adversarial process that is
the hallmark of our country's legal system, designed to protect our
individual rights.
It would require, among other things, that at least one of the court-
appointed amici have expertise in privacy and civil liberties unless
the court found that such qualifications were inappropriate in a
particular case.
It would also require the FISC to appoint an amicus in cases
presenting a novel or a significant interpretation of law or
significant concerns with First Amendment-protected activities of a
U.S. person, a sensitive investigative matter, a request for approval
of a new program, new technology, or a new use of an existing
technology with novel or significant civil liberties issues with
respect to a known U.S. person.
All of these things are important, and it is also important that they
be required to provide the full panoply of material exculpatory
evidence to the FISC as they are going before the FISC in cases
involving U.S. person queries under 702.
It is really important that we have these reforms because, again,
remember, we suspend what would otherwise be significant restrictions
in this arena. We suspend those. Because we suspend them and because
this is a secret court, it is that much more important to be careful.
We still understand that because of the risks associated with it, it
is still not a court that would operate in a public way, but at least
there would be another set of eyes in there looking at it. A set of
eyes under some circumstances is allowed to be in there now but maybe
not as often as they should be, and that will be weakened if we just
pass RISAA reflexively. RISAA would actually weaken transparency in
surveillance oversight, very significantly and very dangerously.
So, look, I am about out of time, and so I need to wrap this up. Let
me just close by saying this: We can't fall for the lie every time, and
we certainly can't fall for the lie every time and then claim surprise
when it gets abused again.
[[Page S2866]]
The American people have seen over and over again that there is some
risk in this. Sure, these things have made us safer, and we like those
things that have made us safe.
I don't personally know any American who is concerned--who stays up
late at night worrying about FISA 702 surveillance of a foreign
adversary operating on U.S. soil. That is not a zone where Fourth
Amendment interests are cognizable in our legal system, and it is not
something that Americans I know spend time worrying about. But they are
worried when they learn that a number of innocent, unsuspecting
Americans have their own private communications incidentally collected
or swept up in what might well be legitimate operations associated with
FISA 702. It is the querying of their name, of their personal
identifiers, their phone numbers, the email addresses of a known U.S.
citizen, looking for them--it is a great cause of concern to many.
That is my principal focus, and it is why I am focused so heavily on
the Lee-Welch amendment and on the Durbin amendment, of which I am also
a cosponsor, requiring a warrant for them to access the contents of
those private communications of U.S. persons when they are queried on
the FISA 702 database.
That doesn't mean these are the only reforms that are necessary.
There are a handful of our other colleagues who have introduced other
reforms. One of them addresses the Turner amendment.
This breathtakingly broad expansion of FISA was written in a ham-
fisted way. I understand that there is a legitimate reason for it, but
the way it is written, one has to wonder about what the subjective
motives of those writing it may have been. But even if you assume for
purposes of argument that they were pure, their draftsmanship sure
wasn't pure, and we have to fix that. We have to fix that.
There are some other amendments that also need to be considered. You
know, I am not sure how I feel about every one of these amendments,
but, you know, when you get elected to the United States Senate, one of
the things that differentiates this body from other legislative
bodies--we pride ourselves on supposedly being the world's most
deliberative legislative body. We need to act like it.
Our rules and nearly 2\1/2\ centuries of tradition, precedent,
custom, and practice are such that we are expected to vote on each
other's amendments even when we don't necessarily agree with them. Even
those amendments that I don't feel great about, that I might well
oppose, perhaps even vigorously, I want them to have votes too.
We can't fall for fake scare tactics telling us that Armageddon will
be upon us if we get past tomorrow night at midnight because it is just
not true. Nor can we fall for the lie that has been repeated on this
floor today that Federal courts have addressed this issue and concluded
that this issue raises no Fourth Amendment concerns. That is a lie.
To the extent that it is being spun innocently or just negligently,
then I guess in that circumstance, we wouldn't call it a lie; we would
call it a badly, badly mistaken argument. But it is not something that
should persuade us. Just let us vote.
We have to end this practice of filing cloture and filling the tree.
That is fancy Senate parlance for preventing people from offering up
amendments and having those amendments voted on. Every time you do
that, you bolster the disproportionate, hegemonic power of the law firm
of Schumer, McConnell, Johnson, and Jeffries so that you make them
superlegislators while subordinating all of us and, more importantly,
those who elected us from a pretty important legislative process.
I implore my colleagues to think about them--those who voted for us
and those who didn't vote for us but those to whom we stand
accountable--before reflexively enacting this again. And I implore our
Senate majority leader to just let the people's elected lawmakers vote.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
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