[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 12632-12636]
[From the U.S. Government Publishing Office, www.gpo.gov]




                ENDING BULK COLLECTION OF PHONE RECORDS

  Mr. UDALL of Colorado. I welcome this opportunity to speak on the 
floor about the National Security Agency surveillance programs, their 
effectiveness, and their future.
  I am proud to be joined by my colleague from Oregon, Senator Wyden, 
who will comment as well after my remarks. He has been a stalwart 
leader on these issues, and it has been my honor to join forces with 
him and to draw attention to this very important discussion President 
Obama recently welcomed.
  He called for a public debate on finding the right balance between 
national security and privacy in the context of NSA's surveillance 
programs.
  His call is long overdue, and it is an opportunity we should not 
squander. As I have said time and time again to Coloradans and as they 
have said back to me as well, we owe it to the American people to have 
an open, transparent debate about the limits of the Federal 
Government's surveillance powers and how we reconcile the need to keep 
our families safe while still respecting our hard-won constitutional 
rights to privacy.
  Although I would have preferred that this debate would have been 
kicked off by more transparent actions by the White House instead of by 
unauthorized leaks, we are nonetheless presented with a unique 
opportunity--an opportunity to finally have an open dialog about the 
limits of our government's surveillance powers, particularly those 
relating to the vast dragnet of Americans' phone records under section 
215 of the PATRIOT Act.
  This is a debate in which I feel privileged to take part. It is a 
debate that Senator Wyden has been a part of since before I was elected 
to the Congress and one that I have been engaged in for a number of 
years now.
  I want to be clear. I have acted in every possible way that I could 
within the confines of our rules that protect classified information to 
oppose these practices and bring them to light for the American people. 
I have fought against overly intrusive sections of the PATRIOT Act and 
the FISA Amendments Act and registered objections repeatedly with the 
administration. I believe these efforts are critical for protecting our 
privacy and also ensuring our national security.
  I serve on both the Senate Armed Services Committee and the Senate 
Intelligence Committee, and in those assignments I focus every day on 
keeping Americans safe, at home and abroad. I recognize that we still 
live in a world where terrorism is a serious threat to our country, to 
our economy, and to American lives. Make no mistake, our government 
needs the appropriate surveillance and antiterrorism tools to combat 
the serious threats to our Nation. But it is up to the White House and 
Congress to ensure that these tools strike the right balance between 
keeping us safe and protecting our constitutional right to privacy. 
This is a balance I know we can achieve, but, in my view, the PATRIOT 
Act's bulk phone records collection program does not achieve that 
balance. That is why I am here on the Senate floor with my colleague 
Senator Wyden to call for an end to the bulk phone records collection 
program, as we know it today.
  Two years ago we were here on the Senate floor considering extending 
certain PATRIOT Act provisions. At that time I argued that the sweeping 
surveillance powers we were debating did not contain sufficient 
safeguards to preserve the privacy rights of Americans. In particular, 
I argued that the PATRIOT Act's business records provision--or section 
215--permits the collection of records on law-abiding Americans who 
have no connection to terrorism or espionage. As I said at that time, 
we ought to be able to at least agree that an investigation under 
PATRIOT Act powers should have a terrorist- or espionage-related focus.
  We all agree that the intelligence community needs effective tools to 
combat terrorism, but we must provide those tools in a way that also 
protects the constitutional freedoms of our people and that lives up to 
the standard of transparency our democracy demands. The Bill of Rights 
is the strongest document we have. Another way to put it: It is the 
biggest, baddest weapon we have. We need to stand with the Bill of 
Rights and in this case the Fourth Amendment.
  Following Mr. Snowden's actions and the subsequent declassification 
of information concerning the NSA's surveillance programs, Americans in 
recent weeks are coming to understand what it means when section 215 of 
the PATRIOT Act says the government can obtain ``any tangible thing'' 
relevant to a national security investigation. That is the Foreign 
Intelligence Surveillance Court's way of saying that section 215 
permits the collection of millions of Americans' phone records on a 
daily, ongoing basis. As a member of the Senate Intelligence Committee, 
I have repeatedly expressed concern that the FISA Court's secret 
interpretation of this provision of the PATRIOT Act is at odds with the 
plain meaning of the law. This secrecy has prevented Americans from 
understanding how this law is being implemented in their name.
  In my view and the view of many Americans, this large-scale 
collection of information by the government has very significant 
privacy implications for all of us. What do I mean by that? Information 
about our phone calls--or, as it is known, ``metadata''--may sound 
pretty simple and innocuous, but I believe that when law-abiding 
Americans call up their friends, family, doctors, religious leaders, or 
anyone else, the information on whom they call, when they call, and 
where they call is private information and should be subject to strong 
privacy protections.
  I have heard it said that the bulk phone records program collects 
nothing beyond what you could find in a phone book. But let's be clear 
about exactly what this program does. It collects the very personal 
details of our phone calls--the who, where, when, and how long--and 
stores them in a database. This doesn't just happen for those who are 
suspected of having some connection to terrorism; this program collects 
the phone records of literally millions of Americans. This is a far 
greater intrusion into our privacy than being voluntarily listed in the 
Yellow Pages, and it is the reason why I am calling on the White House 
and Congress to immediately reform this program.
  Let me reiterate that it is absolutely possible to have both privacy 
and security. Yet, in the case of the bulk phone records collection 
program, Senator Wyden and I believe we aren't getting enough of 
either. Not only does this program unreasonably intrude on Americans' 
privacy, but it also does so without achieving the alleged security 
gains. For instance, in recent weeks the intelligence community has 
made new assertions about the value of recently declassified NSA 
surveillance programs, but in doing so they have conflated two 
programs: section 702 of the Foreign Intelligence Surveillance Act 
regarding foreigners' Internet communications and section 215 of the 
PATRIOT Act regarding bulk phone records. It appears, however, that the 
bulk phone records collection program alone played little or no role in 
disrupting terrorist plots--I say this as someone who has been fully 
briefed on these terror-related events--nor has it been demonstrated 
that this program even provides any uniquely valuable intelligence. 
Therefore, saying, as the intelligence community has, that ``these 
programs'' together have disrupted ``dozens of potential terrorist 
plots'' is misleading.

[[Page 12633]]

  While the intelligence community has been conflating these two 
programs, some of my colleagues in Congress in recent days have been 
going even further to say that the phone records program alone has been 
greatly successful. They have said it has saved lives and prevented 
dozens of terrorist plots. As someone who has been presented with the 
same information as my colleagues on the much-discussed 54 terror-
related events, I have to say I disagree. Again, I have seen no 
evidence that the bulk phone records collection program alone has 
played a meaningful role, if any, in disrupting terrorist plots.
  I have yet to see any convincing reason why agencies investigating 
terrorism cannot simply obtain information directly from phone 
companies using a regular court order. It may be more convenient for 
the NSA to collect phone records in bulk rather than asking phone 
companies to search for specific phone numbers, but convenience alone 
cannot justify the collection of the personal information of millions 
of innocent, ordinary, law-abiding Americans, especially when the same 
or more information can be obtained using less intrusive methods. A few 
hundred court orders per year would clearly not overwhelm the FISA 
Court, and the law already allows for emergency authorizations to get 
these records quickly in urgent circumstances.
  Senator Wyden and I are not alone in believing there is a more 
effective and less intrusive way to collect this information. Even 
before the nature of the bulk phone records collection program was 
declassified, there was support for narrowing the language of section 
215 from many Members of Congress of both political parties. In fact, 
when the PATRIOT Act reauthorization passed the Senate in 2005 by 
unanimous consent, it included commonsense language that would have 
limited the government's ability to collect Americans' personal 
information unless there is a demonstrated link to terrorism or 
espionage. That language was designed to, among other things, protect 
our Fourth Amendment constitutional rights and put a check on 
government power. While that language did not make it into the final 
conference bill, it demonstrated that bipartisan agreement on reforms 
to section 215 is possible.
  Let's fast forward to 2011, when the Senate again took up the 
extension of a number of expiring provisions of the PATRIOT Act. I 
offered an amendment drawn directly from language in the 2005 Senate-
passed bill to narrow the application of this provision. That 
amendment, unfortunately, did not receive a vote. But this Congress I 
introduced bipartisan legislation with Senator Wyden based on that same 
language and principles, and we are now joined by a strong bipartisan 
group of our colleagues from across the country and all along the 
political spectrum, including Senators Durbin, Murkowski, Begich, Tom 
Udall, Merkley, Lee, and Heinrich. Our bill will responsibly narrow the 
PATRIOT Act's section 215 collection authority to make it less 
intrusive on the privacy of law-abiding Americans. Our legislation 
would still allow law enforcement and intelligence agencies to use the 
PATRIOT Act to obtain a wide range of records in the course of 
terrorism- and espionage-related investigations, but it would require 
them to demonstrate that the records are in some way connected to 
terrorism or clandestine intelligence activities--which is not the case 
today.
  This past week there was a strong bipartisan vote in the U.S. House 
of Representatives to curtail NSA's bulk phone records collection. 
Although the legislation didn't pass, the American people are demanding 
action and those who share our concerns are on the march. It is time to 
take action.
  It is common sense that our law enforcement agencies should have 
reason to suspect a connection between the records they are seeking and 
a terrorism or espionage investigation before using these broad 
authorities to collect the private information of Americans. If the 
government can use these powers to collect information on people who 
have no connection to terrorism, then where does it end? Is there no 
amount of information that our government can collect that would be off 
limits? What is next--our medical records?
  We must be able to put in place reasonable measures that allow our 
law enforcement agencies to pursue enemies who would try to harm us, 
while protecting our rights as Americans.
  That is why I believe if an investigation cannot assert some nexus to 
terrorism or espionage, then the Government should keep its hands off 
the phone records of law-abiding Americans. These are the kinds of 
reasonable, commonsense limits on the Government's powers that 
Coloradoans tell me are necessary to keep us safe while also respecting 
our privacy.
  That takes me back to the statement I made at the outset. I believe 
it is time to end the bulk collection program as we know it. Tonight I 
am calling on the White House to begin to make the administrative 
changes to end the bulk collection of Americans' phone records and to 
conduct the program instead through direct queries to phone companies 
where there is a connection to terrorism or espionage. Under this 
targeted approach, our Government would retain its broad authorities to 
investigate terrorism while ordinary Americans will be protected from 
overly intrusive surveillance activities.
  Congress should support the administration's move in this direction 
by passing our legislation to end bulk collection. Passage of our 
bipartisan bill would prevent unwarranted future breaches of Americans' 
privacy rights and focus on the real threats to our national security.
  Taking into account the serious privacy concerns raised by the bulk 
collection program, the lack of demonstrated unique value of the 
program, and our ability through direct queries to the phone companies 
to collect the data in the same but less intrusive way, I believe the 
administration--I hope the administration will see the value in working 
with Congress to end the bulk collection of phone records conducted 
under the PATRIOT Act's section 215 authorities. I pledge to work with 
the administration and all of my colleagues to see this through.
  Let me end on this note. We need to strike a better balance between 
protecting our country against the threat of terrorism and defending 
our constitutional rights. The bulk records collection program as we 
know it today does not meet this balance test, and that is why I 
believe it must end.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, before he leaves the floor, I want to 
tell Senator Udall how much I have appreciated having him in that 
intelligence room, because he has been a strong advocate for making 
sure our country can have security and liberty in those classified 
meetings, just as he has done tonight. It is great to have him on the 
committee and to have him as a partner in these efforts.
  He is so right when he stated tonight that this is a debate that 
should have begun long ago. It is a debate that should have been 
started by elected officials and not by a government contractor. I very 
much appreciate the Senator's remarks. I think he made it clear that we 
are going to stay at this until we get it fixed, and I very much 
appreciate his leadership.
  As Senator Udall has made clear, these issues are about as important 
as it gets. When you are talking about how you can secure these bedrock 
American values--security and liberty--this is right at the heart of 
what Americans care about most. For too long, my view is the American 
people have essentially been presented with false choices. Americans 
have been told they can have one or the other: They can have security 
or they can have liberty, but they cannot have both. Suffice it to say, 
in the last 8 weeks, as this debate has evolved, I think Americans have 
come to understand that this set of false choices is not what this 
debate is all about, and they deserve better.
  As this debate has unfolded, whether you are in a lunchroom at work 
or a senior citizens center or you are looking at a political opinion 
poll, the polls

[[Page 12634]]

have changed something like 20 points just in the last few weeks, with 
Americans saying, particularly, that the bulk phone records collection 
program is an intrusion on the rights of law-abiding Americans. Whether 
it is what citizens say at townhall meetings or what they say in the 
company lunchroom or in senior citizens centers, Americans have come to 
understand that these false choices are not what the discussion is all 
about. Americans have come to figure it out.
  Frankly, a big part of the problem in the past--and I documented it 
last week--is leaders in the intelligence community have made 
misleading statements, repeatedly. It is not just a question of keeping 
the American people in the dark--which was true--but the American 
people were actively misled on a number of occasions.
  Senator Udall and I have been walking everyone through that. The bulk 
phone records collection program is often compared to a grand jury 
subpoena approach. That is about as far-fetched as it gets. Even 
national security lawyers have made fun of that kind of argument in 
publications such as the Wall Street Journal.
  Very often when I talk to lawyers--the distinguished Presiding 
Officer is, of course, a particularly illustrious lawyer and has taught 
in the field. I often say when I am visiting with lawyers, or I ask for 
a show of hands: Does anybody know of a grand jury subpoena where you 
can have the bulk collection of millions of phone records of law-
abiding Americans? Come on up to me and tell me after the meeting is 
over.
  I do not exactly get swarmed. The reason is there are not any.
  One of the reasons I wanted to touch on these misleading statements 
is that, just in the last few days--Senator Udall touched on this--
there has been an effort to commingle the two programs. One of them is 
called the FISA 702 Program, the PRISM Program, which targets 
foreigners and has useful value. We have made that clear. It can be 
improved. I came to that conclusion when I was finally able to get 
declassified a finding from the FISA Court that on at least one 
occasion the Fourth Amendment had been violated in connection with the 
use of the 702 Program. But even with that, I am of the view that 
provides useful value.
  But what a number of the leaders of the intelligence community have 
done is essentially commingled their advocacy of these programs so that 
702 and the bulk collection program essentially ride together, when in 
reality, 702--which Senator Udall and I have supported--I think we can 
improve it with these privacy reforms--in effect, 702 does all the 
work. The bulk collection program, which does intrude on the rights of 
millions of law-abiding Americans, is essentially along for the ride. 
But you would not know that when you hear these statements from a 
number of the leaders in the intelligence community, when they just say 
``these programs,'' of course, are what keeps us safe.
  In addition, I thought it was important to briefly start this evening 
by mentioning that over the last few days there have been a number of 
comments about whether the PATRIOT Act has violated the rights of 
Americans with respect to this bulk collection program. A number of 
commentators and others have said: ``Where are the violations? I 
haven't seen any violations.''
  The Director of National Intelligence said last Friday, in a letter 
to you and me and Senator Udall and 23 other of our colleagues: Yes, 
there have been violations of the PATRIOT Act--when he said 
specifically that the Government had violated court orders on the bulk 
collection of those phone records.
  I am not allowed to discuss the classified nature of that, but I want 
to make sure those who are following this debate know that from my 
vantage point, reading those documents that are classified, these 
violations are more serious than have been stated by the intelligence 
community, and in my view that is very troubling. So I do hope Senators 
will go to the Intelligence Committee and ask to see those classified 
documents because I think when they read them--I think they will come 
to the conclusion to which I have come that, not only is what was 
stated by the Director of National Intelligence in that letter that was 
sent to you and me and Senator Udall and 23 other Senators--not only 
was that correct, but I think Senators who read those classified 
documents will also come to the conclusion that the violations are more 
serious than they thought--than the intelligence community portrayed.
  Let me, if I might, talk a little bit more about why we spent several 
years examining this bulk phone records program. First, I think it is 
important for citizens to know that the ability to conduct this secret 
surveillance that lays bare the personal lives of millions of law-
abiding Americans, coupled with the ability to conjure up these legal 
theories as to why this is acceptable, and then have such limited 
oversight through this one-sided adversarial FISA Court, in my view, is 
an opportunity for unprecedented control over the private lives of 
Americans. That is why Senator Udall and I have spent all this time 
focused on this issue.
  I thought also tonight, and having done this before, I will provide a 
little more history as to how we got to this particular place. When I 
came to the Senate early on I had a chance to work with a number of 
colleagues who saw the extent of these problems--early on. One of them 
was our former colleague, Senator Russ Feingold.
  Senator Feingold saw the problems that the PATRIOT Act posed before 
they were apparent to many Senators. He and his staff took the 
responsibility to protect both American security and American liberties 
very seriously. In 2007, the two of us came to understand that the 
PATRIOT Act was being secretly interpreted to justify the bulk 
collection of Americans' records, and we made it clear that we thought, 
first of all, that was something very different from what Americans 
thought was going on.
  We thought it was very different, for example, from the plain reading 
of section 215 of the PATRIOT Act, and we thought that the language of 
the PATRIOT Act had been stretched beyond recognition because the 
language in the PATRIOT Act spoke to relevance and a sense that it was 
relevant to suspected terror activity, rather than something that 
created this enormous leap from what was in the statute that called for 
relevance to collecting millions and millions of records on law-abiding 
people.
  So Senator Feingold and I dutifully set about to write classified 
letters to senior officials urging them to make their official 
interpretation of the PATRIOT Act public. We said at the time that for 
intelligence activities to be sustainable and effective, they have to 
be based on publicly understood laws and be consistent with Americans' 
understanding of their own privacy rights. This, in our view, was 
clearly not the case with the bulk records collection because, of 
course, the government's official interpretation of the PATRIOT Act was 
a tightly guarded secret.
  Back then in those early days we were rebuffed when we made repeated 
requests that the intelligence community inform the public what the 
government had secretly decided the law actually meant. In fact, there 
was a secret court opinion that authorized massive dragnet domestic 
surveillance, and the American people, by that point, were essentially 
in the dark about what their government was doing with respect to 
interpreting an important law.
  In 2009, as the expiration of the date for the PATRIOT Act 
approached, Senator Feingold and I began to caution our colleagues and 
the public that our people were not getting the full story about the 
PATRIOT Act. At that time, we'd had the good fortune of having our 
colleague, Senator Durbin, on the committee, and we all wrote public 
letters. We authored various articles. We wrote editorial pages for the 
newspapers and made statements for the Congressional Record. We raised 
issues about this to the extent we could at public hearings. But, of 
course, the Senate rules regarding the protection of classified 
information limited what we could say.

[[Page 12635]]

  One point I have tried to make clear is the intelligence rules--the 
classification rules don't let a member of the committee tap the truth 
out in Morse Code. We have to comply with the rules, and they are very 
laborious. If we don't comply with the rules, we cannot serve on the 
Intelligence Committee and be a watchdog for some of these efforts that 
we think goes right to the heart of protecting American security and 
American liberty.
  So we decided--a small group of us who shared these views--if we 
wanted to have the opportunity to play that watchdog rule, we needed to 
work within the rules. So we did everything we could--recognizing that 
we can't tap out classified information in Morse Code--to alert the 
public about what was going on.
  After a series of short-term extensions, the PATRIOT Act came up for 
a long-term reauthorization in the spring of 2011. By that time, 
Senator Feingold had been replaced on the committee by Senator Udall. 
He, as my colleagues know, shares these concerns about the bulk 
collection of phone records on millions of law-abiding Americans, and 
we are lucky he has been a prominent leader in the cause of protecting, 
security, and liberty.
  During the 2011 reauthorization, Senator Udall and I spoke to 
colleagues. We invited colleagues to secure settings so we could lay 
out what was actually happening, and many of those colleagues joined us 
on the floor to oppose the extension of the PATRIOT Act for 4 more 
years.
  During that debate, I came to the floor and said:

       When the American people find out how their government has 
     secretly interpreted the PATRIOT Act, they will be stunned 
     and they will be angry.

  That week the Senate voted to extend the PATRIOT Act until 2015, but 
those of us who opposed the extension continued the fight in the months 
that followed.
  At that time the NSA was also conducting a bulk e-mail records 
program in addition to the bulk phone records program that is ongoing 
today. Senator Udall and I were concerned about this program's impact 
on our liberties and our privacy rights, and back in the Intelligence 
Committee, we spent a big chunk of 2011 pressing intelligence officials 
to provide evidence of its effectiveness. It turned out that the 
intelligence community was unable to provide any such evidence. 
Intelligence agencies have made statements to both Congress and the 
Foreign Intelligence Surveillance Court that--they had significantly 
exaggerated the effectiveness of the bulk e-mail program. When Senator 
Udall and I pressed them to back up these statements, they couldn't do 
it. The bulk e-mail records program was shut down that year.
  Our experience with the bulk e-mail records program showed us that 
the Intelligence Agency's assessments about the usefulness of a number 
of these particular programs, even big ones, are not always accurate. 
Now, that doesn't mean that intelligence officials were deliberately 
lying. In a number of instances--as far as I could tell--they believed 
their claims that the bulk e-mail surveillance program was effective, 
even though it was actually close to worthless. This was an important 
reminder that even if intelligence officials are well intentioned, they 
can be dead wrong, and that any policymaker who simply defers to 
intelligence officials' conclusions without asking to see their 
evidence is making a mistake.
  As we looked at that evidence, Senator Udall and I found that the 
claims about the effectiveness of the bulk phone records program also 
did not seem well supported by the facts. So in March of 2012, we wrote 
to the Attorney General expressly with this concern. In our letter we 
said:

       In recent months we have grown increasingly skeptical about 
     the actual value of [this] ``intelligence collection 
     operation.''

  And we added:

       This has come as a surprise to us, as we were initially 
     inclined to take the executive branch's assertions about the 
     importance of this ``operation'' at face value.

  The Department of Justice, unfortunately, decided not to respond to 
our letter, but we continued our efforts to educate the public and to 
call out senior officials from intelligence agencies and the Department 
of Justice as they repeatedly made misleading statements about domestic 
surveillance.
  In June of this year, disclosures by the Washington Post and the 
Guardian newspaper revealed the fact of bulk collection to the American 
people. This sparked the debate that is now ongoing about whether 
offering up the personal records of ordinary Americans is the best way 
to protect our security and our liberty. This debate--as I indicated 
when Senator Udall was on the floor--should have started a long time 
ago, but I am sure glad it is finally happening now.
  The fact is that Americans' phone records can reveal a lot of private 
information. If you know, for example, that somebody called a 
psychiatrist three times in a week and twice after midnight, you know a 
lot about that person. If you are vacuuming up information on whom 
Americans call, when they call, and how long they talked, you are 
collecting an astounding amount of information about a huge number of 
law-abiding Americans.
  The intelligence agencies try to emphasize that they have rules about 
who can look at these bulk phone records and when. There has been a lot 
said on cable by the talking heads on TV, and I want to emphasize, none 
of these rules require the NSA to go back to a court to look at 
Americans' phone records. None of these rules erase the privacy impact 
of scooping up all of these records in the first place. On top of that, 
as I indicated in the beginning, there have been a number of serious 
violations of those rules.
  The Senators who got the letter last Friday know that, and I want to 
tell all the other Senators on both sides of the aisle that the 
violations--as I have touched on tonight--were a lot more serious than 
the public has been told. I believe the American people deserve to know 
more details about these violations that were described last Friday by 
Director Clapper.
  I am going to keep pressing to make more of these details public. It 
is my view that the information about the details of the violations of 
the court orders with respect to the bulk phone record collection 
program--the admission that the court orders have been violated--has 
not been, I think, fully fleshed out by the intelligence community. I 
think a considerable amount of additional information can be offered 
without in any way compromising our national security.
  If the impact on America's liberties wasn't bad enough, it is made 
even worse by the fact that this program--when we asked and asked--does 
not seem to have any unique value. I will explain briefly what it 
means.
  Mr. President, I ask unanimous consent for 7 additional minutes.
  The PRESIDING OFFICER (Mr. Donnelly). Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, I will see if I can beat the clock because 
I know colleagues are waiting. In fact, Senator Baldwin has been a 
great advocate for liberties and showing that liberty and security are 
compatible, both when she was a Member of the other body and here when 
she was part of our group, and I thank her for it.
  Intelligence officials can only point to two cases where this 
program--the bulk phone records collection program--actually provided 
useful information about an individual involved in terrorist activity. 
In both of these cases, the government had all the information it 
needed to go to the phone company and get an individual court order and 
emergency authorization for the phone records they needed.
  In both of these cases, the individuals who were identified using 
these phone records were arrested months or years after they were first 
identified, but if government agents believed that the situation was 
urgent, they could have used emergency authorizations to obtain their 
phone records more quickly. I am glad both of these cases resolved the 
way they did. I am proud that our intelligence agencies and law 
enforcement individuals were able to identify and arrest those who were 
involved in terrorist acts.
  In one case four men in California were arrested for sending money to 
a

[[Page 12636]]

militant group in Somalia. In the other case they arrested a co-
conspirator of Mr. Zazi a few months after Zazi's plot was disrupted. 
These men committed serious crimes. They are now being punished with 
the full weight of the justice system.
  What I don't see, however, is any evidence that the U.S. Government 
needed to operate a giant domestic phone records surveillance program 
in order to catch these individuals. I have seen no evidence--none--
that this dragnet phone records program has provided any actual unique 
value for the American people. In every instance in which the NSA has 
searched through these bulk phone records, it had enough evidence to 
get a court order for the information it was searching for.
  Getting a few hundred additional court orders every year would 
clearly not overwhelm the Foreign Intelligence Surveillance Court. The 
intelligence agencies may argue that collecting Americans' phone 
records in bulk is more convenient than getting individual court 
orders, but convenience alone does not justify the massive intrusion on 
the privacy of ordinary Americans. I believe it is vitally important to 
protect the safety and liberty of our people. I don't see any evidence 
that this program helps protect either. That ought to be the standard 
of any domestic surveillance program. If the bulk collection program 
doesn't protect privacy or security, then it ought to end--plain and 
simple.
  The executive branch simply has not shown anything close to an 
adequate justification for this massive dragnet surveillance that has 
compromised the civil liberties of millions of Americans. I am not sure 
they ever could, but I am confident that I have not seen it as yet.
  Now, let me close by way of saying that over the last few weeks we 
have seen extraordinary support for reform. Last week over 200 Members 
of the other body voted to end the bulk phone records collection 
program, and a number of the Members who voted against ending it at 
that time made it clear they have serious concerns they want to 
address. So there are going to be more votes. Make no mistake about it, 
there are going to be more votes on whether to end the bulk collection 
of phone records on law-abiding Americans in the 113th Congress. And 
there are going to be efforts to reform how the entire U.S. 
surveillance system works.
  One of the most important reforms will be to make the significant 
rulings of the Foreign Intelligence Surveillance Court public, which is 
a goal I have been pursuing for several years.
  Additionally, I believe Congress needs to reform the process for 
arguing cases before the court. Right now the government lawyers walk 
in with an argument for why the government should be allowed to do 
something, and there is no one to argue the other side. That is not 
unusual if the court is considering a routine warrant request, but it 
is very unusual when a court is doing major legal or constitutional 
analysis.
  I believe Congress needs to create a way to advocate for the public--
a public advocate to argue cases before the court, because making this 
court more transparent and more adversarial is a way to ensure that 
Americans can have security and liberty. Of course, the relevant 
provisions of the PATRIOT Act itself will be expiring in 2015. I don't 
think there is any reason for the administration to wait for Congress 
to act.
  The executive branch can take action right now. They can and should 
continue to obtain the records of anyone suspected of connections to 
terror or other nefarious activity, and at the same time they can 
restore protections for Americans' Fourth Amendment rights. I am very 
interested in working with the administration on these issues, but they 
can move of their own volition.
  One way or another, we are going to stay at this until, at this 
unique time in our constitutional history, we have revised our 
surveillance laws so we can have security and liberty. Colleagues are 
coming to this cause. Senator Blumenthal has particularly recommended a 
number of constructive FISA Court changes over the last few months. I 
hope colleagues will support that, and I hope they will see this unique 
time in our history when it is critically important that these 
surveillance laws that I and Senator Udall have talked about tonight 
can be reformed and we do it so as to protect the bedrock of American 
values, both security and liberty.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that I and 
Senator Blumenthal from Connecticut and Senator Baldwin from Wisconsin 
and, if he is able to join us, Senator Murphy from Connecticut be 
allowed to engage in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________