[Congressional Record (Bound Edition), Volume 160 (2014), Part 11]
[Senate]
[Pages 15894-15896]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. McCONNELL. Mr. President, the recent beheading of U.S. citizen 
Peter Kassig was the latest reminder of the brutal tactics employed by 
ISIL, a murderous terrorist organization and insurgency that slaughters 
the innocent and routinely employs suicide bombers and IEDs in its 
campaign of terror.
  The Islamic State of Iraq and the Levant slaughtered Sunni tribe 
members in Anbar Province, executed prisoners, and captured key terrain 
in cities such as Mosul.
  Americans know ISIL is lethal, but it is also versatile. It has 
associates and sympathizers in countries across the West, some self-
radicalized on the Internet, including not only in Europe and Canada 
but right here in the United States. The ISIL fighting force continues 
to grow more numerous--now numbering at least 20,000 strong--with its 
success on the battlefield having drawn more extremists to the fight 
from many of the same places, including, again, right here in America.
  At its core, ISIL includes many seasoned veterans who once fought 
under the banner of Al Qaeda in Iraq and either survived the U.S. 
military detention or eluded our military altogether during the years 
of Operation Iraqi Freedom. Many of these fighters are familiar with 
America's intelligence capabilities, and many are savvy with 
communications. These are terrorists who know how to use encryption, 
and they know how to change devices frequently. That is part of the 
reason I am strongly opposed to legislation offered by the chairman of 
the Judiciary Committee that would end one of the Nation's critical 
capabilities to gather significant intelligence on terrorist threats. 
This is the worst possible time to be tying our hands behind our backs.
  The threat from ISIL is real. It is different from what we faced 
before. If we are going to overcome it, if our aim is to degrade and 
destroy ISIL, as the President has said, then it is going to require 
smart policies and firm determination. At a minimum, we should not be 
doing anything to make the situation worse. Yet that is what this bill 
would do.
  Most damagingly, it would hinder the ability of intelligence 
community analysts to query a database to determine

[[Page 15895]]

links between potential terrorists. Instead, the Leahy bill would have 
this data be held by telephone companies. It would make it far harder 
for records to be gathered for a specific selection term. Under the 
Leahy bill, the telephone companies would face no statutory requirement 
to even hold the relevant data.
  There is a legitimate debate to be had over the proper balance to 
strike in our democracy. We continue to have that debate, and we 
should. But the opponents of this collection program have not provided 
any examples--no examples--of the National Security Agency 
intentionally spying on innocent civilians--no examples of that. In 
fact, the NSA, the courts, and the Congress have put in place detailed 
oversight procedures to protect both privacy and national security. 
Moreover, the only data captured under this program is the telephone 
number dialed--the telephone number dialed--the number from which the 
call was made, and the length of the call. Under section 215 of the 
PATRIOT Act, the content of the call is not captured. So I think the 
programs we have in place strike an appropriate balance between 
protecting our civil liberties and keeping our Nation safe. I think the 
bill before us would upend that delicate balance completely.
  What is more, legislation with such far-reaching effects should be 
given the closest possible scrutiny, but this bill was never even 
considered by the Judiciary Committee or the Intelligence Committee. So 
it is unclear why the majority leader is moving to it now rather than 
taking up a bipartisan measure such as the FISA Improvements Act that 
passed the Intelligence Committee on a strong bipartisan vote of 11 to 
4.
  With the current law not even expiring until next June, it is unclear 
why the majority leader wants to rush this untested bill through in 
this lameduck session rather than after a reasonable consideration by 
relevant committees and by the newly elected Members who will actually 
be responsible for overseeing the program's operation.
  The point is that the authorities we enacted after September 11, 
2001, which were crafted to ensure that we integrated intelligence 
gathered overseas and here in the United States, are acutely relevant 
right now. We live in a dangerous world. Threats such as ISIL only make 
it more so. At a moment when the United States is conducting a military 
campaign to disrupt, dismantle, and defeat ISIL, now is certainly not 
the time to be considering legislation that takes away the exact tools 
we need to combat ISIL.
  Our intelligence community is working to track foreign fighters 
returning from fighting in Syria, to prevent others from traveling to 
the battlefield, and to keep those within Syria from radicalizing their 
friends and families back home. It makes little sense to pass 
legislation that hinders our intelligence community--legislation that 
has yet to receive any committee consideration.
  On that note, today's Wall Street Journal features an excellent 
opinion piece offered by former Federal judge and Attorney General 
Michael Mukasey and Gen. Michael Hayden, the former Director of the CIA 
and the NSA. I recommend their column, ``NSA Reform That Only ISIS 
Could Love.'' I ask unanimous consent that a copy be printed in the 
Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, Nov. 7, 2014]

                  NSA Reform That Only ISIS Could Love

             (By Michael V. Hayden and Michael B. Mukasey)

       For those charged with gathering the information our 
     government needs to keep us safe, the news has been grim. 
     Following the leaks by Edward Snowden beginning in June last 
     year of highly classified intelligence gathering techniques, 
     the former head of the National Counterterrorism Center, 
     Matthew Olsen, disclosed in September that terrorists tracked 
     by U.S. intelligence services have started encrypting their 
     communications in ways that defeat detection, and that the 
     government has lost track of several.
       Meanwhile, Islamic State terrorists continue to rampage 
     across Syria and Iraq, even as the group, also known as ISIS, 
     uses sophisticated Internet communications to swell its ranks 
     with recruits bearing U.S., Canadian or European passports 
     who can easily slip back into their native countries and 
     wreak havoc.
       In that threat environment, one would think that the last 
     thing on the ``to do'' list of the 113th Congress would be to 
     add to the grim news. Yet Senate Majority Leader Harry Reid 
     has announced that he will bring to the floor the 
     extravagantly misnamed USA Freedom Act, a major new bill 
     exquisitely crafted to hobble the gathering of electronic 
     intelligence.
       For starters, the bill ends the National Security Agency's 
     bulk collection of what is called telephone metadata. This 
     includes the date, time, duration and telephone numbers for 
     all calls, but not their content or the identity of the 
     caller or called, and is information already held by 
     telephone companies. The bill would substitute a cumbersome 
     and untried process that would require the NSA, when it seeks 
     to check on which telephone numbers have called or been 
     called by a number reasonably associated with terrorist 
     activity, to obtain a warrant from the Foreign Intelligence 
     Surveillance Court, or FISA court, and then scurry to each of 
     the nation's telephone-service providers to comb through the 
     information that remains in their hands rather than in the 
     NSA's.
       Nothing in the bill requires the telephone companies to 
     preserve the metadata for any prescribed period. Current 
     Federal Communications Commission regulations impose an 18-
     month retention requirement, but administrative regulations 
     are subject to change. It isn't hard to envision companies 
     that wish to offer subscribers the attraction of rapid 
     destruction of these records, or a complaisant bureaucracy 
     that lets them do it.
       The bill's imposition of the warrant requirement on the NSA 
     would be more burdensome than what any assistant U.S. 
     attorney must do to get metadata in a routine criminal case, 
     which is simply to aver that the information is needed in 
     connection with a criminal investigation--period.
       Proponents say this change is necessary to allay fears that 
     the NSA could use telephone metadata to construct an 
     electronic portrait of an American citizen's communications, 
     and determine whether that person has, say, consulted a 
     psychiatrist, or called someone else's spouse. However, only 
     22 people at the NSA are permitted access to metadata, and 
     only upon a showing of relevance to a national-security 
     investigation, and they are barred from any data-mining 
     whatsoever even in connection with such an investigation. 
     They are overseen by a Madisonian trifecta of the FISA court, 
     the executive and committees of Congress. Those people and 
     everyone else at the NSA live in constant dread of failing to 
     detect a terrorist attack. Nonetheless, the sponsors of the 
     USA Freedom Act prefer the counsel of hypothetical fears to 
     the logic of concrete realities.
       This sensitivity to abstract concerns doesn't stop at the 
     water's edge. Under the bill, if the FISA court directs any 
     change, however technical, in the gathering of information 
     from foreigners abroad, no information gathered before the 
     change is implemented could be used before any official body 
     in this country--agency, grand jury, court, whatever.
       Back in the bad old days, as during World War II and the 
     Cold War, intelligence of all sorts directed at protecting 
     national security was gathered by the executive without 
     supervision by judges who, after all, know nothing about the 
     subject and cannot be held to account for adverse outcomes. 
     After the Watergate scandal and the resignation of President 
     Nixon, the FISA court was established in 1978 to provide 
     oversight for intelligence gathering, in addition to that 
     already provided by the executive and by Congress. Now, there 
     are those who complain that the FISA court accedes too often 
     to requests for government access to information, and does 
     not appear to resemble a true court in that there is no 
     public advocate opposing the government position.
       But the nearly uniform success of the government before the 
     FISA court is due both to the government's careful restraint 
     in presenting applications, and to pushback from the court 
     itself--which results in the amendment of applications. Even 
     when the government applies for wiretaps or search warrants 
     in ordinary criminal cases there is no advocate opposing the 
     application.
       Nonetheless, this new bill would establish a permanent 
     advocate appointed by the court to oppose the government's 
     applications before the FISA court. This provision has 
     elicited an extraordinary written objection from a former 
     presiding judge of the FISA court. U.S. District Judge John 
     D. Bates points out that the presence of such an advocate, 
     who cannot conceivably be aware of all the facts, would 
     simply add to the burdens of the court and could wind up 
     sacrificing both national security and privacy.
       This bill redefines the FISA court, which was never meant 
     to be an adversary tribunal and was imposed simply as an 
     added safeguard in the 1970s, without regard to its history 
     or its purpose. Worse, it is a three-headed constitutional 
     monster: It is a violation of both the separation of powers 
     principle and the Constitution's appointments clause by 
     having judges rather than the president appoint the public 
     advocate, and then it has the advocate litigate against the 
     Justice Department when both executive offices are supposed 
     to be controlled by the president.

[[Page 15896]]

       The bill is not an unrelieved disaster. It rightly allows 
     for the expansion of metadata gathering to include more calls 
     made by cellphones.
       Not surprisingly, the bill has received the endorsement of 
     President Obama's attorney general, Eric Holder, and his 
     director of national intelligence, James Clapper, who in a 
     Sept. 2 letter to the Senate Judiciary Committee said they 
     were ``comfortable'' with the bill's provisions--even as they 
     conceded that the bill may have ``additional impacts that we 
     will be able to identify only after we start to implement the 
     new law.''
       If that calls to mind the Affordable Care Act and the 
     suggestion that we should wait and find out what is in the 
     bill until after it passes, bear in mind that ``additional 
     impacts'' here may include holes in the ground where 
     buildings used to stand and empty chairs where people used to 
     sit.
       There is no immediate or emergency need for this piece of 
     legislation. Current surveillance authorities do not expire 
     at the end of this year, which is fortunate given the current 
     threats we face at home and abroad. The USA Freedom Act 
     should await the attention of the Congress that will actually 
     oversee it. A change to national-security procedures is not 
     something to be rushed through in a lame-duck session.

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