[Congressional Record (Bound Edition), Volume 161 (2015), Part 6]
[Senate]
[Pages 7920-7935]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   USA FREEDOM ACT OF 2015--Continued

  The PRESIDING OFFICER. The majority whip.
  Mr. CORNYN. Mr. President, I would ask the Senate's indulgence. I 
actually have three topics that I need to discuss here today. One topic 
involves the historic flooding that we have experienced in Texas and 
the consequences of that, also the President's signing the Justice for 
Victims of Trafficking Act, and lastly, the bill that is before us on 
the floor today, which is another tool in the toolbox of the national 
security apparatus in this country to help keep Americans safe.


                              Texas Floods

  First, Mr. President, let me talk about the flooding and storm damage 
that has affected Texas this last week or so. Over the course of a 
month, Texas has faced a deluge of storms and rain, and according to 
Texas A&M climatologists, May was the wettest month on record. Texas 
has been in a drought for a number of years now, and we are glad to get 
the rain, but we just wish that Mother Nature had spread it out over a 
longer period of time. The National Weather Service reported yesterday 
that in May Texas skies shed 37.3 trillion gallons of water, which 
translates into almost 8 inches of water covering the entire State--a 
state more than 268,000 square miles large.
  Unfortunately, this historic volume of water quickly turned into 
tragedy and massive destruction. Many Texans have experienced great 
loss. Some have lost their homes as the rivers came down without any 
warning and washed their houses from their foundation. But, of course, 
losing your home does not compare to the heartbreak of losing a loved 
one, and tragically, at least 24 people have lost their lives in the 
floods.
  As usual, despite the direst of circumstances, the Texas spirit 
remains alive, and we see many volunteers continuing to dedicate their 
time and efforts to lend a helping hand. In Wimberley, in central 
Texas, a town hit particularly hard by flooding and the overflowing 
Blanco River, a group of students and adults helped to organize a 
makeshift market in the high school gym. This same group helped 
consolidate and coordinate donations to give to those most in need. 
Locals in the town of about 2,500 people have

[[Page 7921]]

come to refer to this as the ``Wimberley Walmart.''
  Fortunately, stories such as these of Texans helping one another are 
not isolated--far from it, in fact. Communities across the State are 
organizing donation drives to help those who have lost all their 
material possessions, and many individuals have selflessly risked their 
own lives to help rescue strangers from the floodwaters and the rubble. 
To these volunteers, and to the many first responders who are working 
tirelessly, we all thank you from the bottom of our heart. During these 
hard times, you not only provided relief but you also provided perhaps 
something more important, and that is hope.
  I spoke to several local officials over the last couple of days, 
including Nim Kidd, who is chief of the Texas Department of Emergency 
Management. Nim is doing a terrific job in this very difficult 
position, and he is performing like the experienced public servant that 
you would come to expect, particularly in dealing with disasters such 
as this. Nim has said there is a lot of work to be done. He told me 
that the rivers may not actually be within their banks for 2 more 
weeks, assuming that we don't get more rain.
  This weekend, with recovery efforts in full swing and Texans 
beginning the painstakingly slow process of answering the painful 
question of what now, several Texas rivers remain at flood stage in 
more than 100 different locations. So as we start to recover, we are 
reminded that we need to remain vigilant.
  I was encouraged to hear Nim's report that the assistance of FEMA and 
other Federal agencies has been making a big difference. He was highly 
complimentary of their contributions. FEMA, as just one example, has 
rapidly deployed resources to help assess the damage done in local 
communities, and we were both glad to see the President quickly grant 
Governor Abbott's request for a major disaster declaration on Friday 
night, which will help Texans get the resources they need. I promised 
Nim and others I spoke to that I would continue to work with Governor 
Abbott and our State's congressional delegation to make sure that the 
Federal Government provides all the help Texans deserve during this 
difficult time.
  So, to those suffering today, I want to offer my deepest condolences 
and prayers. We will continue to do everything we can here in 
Washington, in Austin, and in local communities that have been so 
severely affected, to give Texans the help they need. We have no time 
to lose in getting these communities back on their feet. I know the 
people of Texas will continue to help their neighbors across the State 
during their time of need to ensure that each affected community will 
make the fullest and fastest recovery possible.


                 Justice for Victims of Trafficking Act

  Mr. President, on the second topic, on Friday, the President signed 
into law the Justice for Victims of Trafficking Act. I know I speak for 
all those involved in the long journey on which this legislation has 
led us when I say that I am thrilled that we are able to mark this 
milestone. This is a perfect example of Congress working together in a 
bipartisan way along with the President to try to do something to help 
the most vulnerable people in our society--the victims of human 
trafficking. This is an important day, as it shows to both the victims 
of human trafficking as well as to the predators who exploit them that 
Congress, on both sides of the Capitol and on both sides of the aisle, 
takes this issue seriously.
  I want to express my gratitude to the organizations and the people 
who have helped get this done, lending countless hours and endless 
expertise to this cause. Without their advocacy and their 
determination, this would not have been possible. I thank in particular 
groups such as Rights4Girls, Shared Hope International, the National 
Association to Protect Children, the Coalition Against Trafficking 
Women, and End Child Prostitution and Trafficking.
  It is also important to remember whom this bill is for, and of 
course, it is for the victims--typically, a young girl between the ages 
of 12 and 14 who may have left home expecting some adventure or 
something else other than what they ultimately experienced. Many of 
them find themselves victims of modern day slavery and victims of 
habitual sexual abuse. This is for women such as Melissa Woodward, whom 
I have met. She is from the Dallas-Fort Worth area. At just 12 years 
old, Melissa was sold into the sex trade by a family member--as hard as 
that is to conceive of. Her life became a prison. She was chained to a 
bed in a warehouse and endured regular beatings and was raped. She was 
forced to sexually serve between 5 and 30 men every day. Melissa said 
that at one point she wished she was dead. As heartbreaking as her 
story is--and it is heartbreaking--it is good to know that strong 
people such as Melissa--along with the help we can give and others who 
care for them can give and with those who can help them from living a 
life of victimhood--can be transformed by their experience and regain a 
new and productive life. So with this law we begin to provide for 
people such as Melissa the help they need to heal, and, importantly, to 
treat her and others as the victims they are and not as criminals. 
While I am thankful for what will be accomplished through this 
legislation, my hope is that we continue to fight the scourge of human 
trafficking using this law as the first step of many.
  Mr. President, I want to speak about the effort to reauthorize the 
critical provisions of the PATRIOT Act that expired at midnight last 
night.
  As others have observed, there has been a lot of misleading rhetoric 
and downright demagoguery about this topic. The issue is pretty 
straightforward and simple. This is about how we use all of the tools 
available to us to keep our Nation safe amidst pervasive and growing 
threats, while at the same time preserving our essential liberties. 
This is not about trading one for the other. This is about how we 
achieve the correct balance.
  Despite our efforts last night, this Chamber was unable to come up 
with even a short-term solution to ensure that the key provisions--
including section 215--of the PATRIOT Act did not expire. We know that 
any single Senator could object to this extension that would allow us 
to continue our work without allowing this program to expire. 
Unfortunately, three of our colleagues chose to object to the 
commonsense unanimous consent request to allow those temporary 
extensions while the Senate and the House continued their work.
  It is important to remember that these provisions of the law were 
created after September 11 and were designed to equip those 
investigating terrorism with the basic tools used by ordinary law 
enforcement. Why in the world would we want to deny law enforcement the 
investigatory tools they need to keep America safe from terrorist 
attacks? That is what section 215 did and does and will do again once 
we resurrect it.
  Before it expired at midnight, these provisions helped our 
intelligence and law enforcement officials keep the country safe. As I 
think about this, and in discussing it with Chairman Burr and others 
who are very concerned about the safety and security of our country and 
who are determined to protect the country by making sure that our 
counterterrorism efforts maintain every available legal tool consistent 
with our civil liberties, I think what has happened is we have fallen 
victim again to the pre-9/11 mentality of considering counterterrorism 
efforts to be a law enforcement matter alone. Of course, the Fourth 
Amendment to the Constitution, which prohibits unreasonable searches 
and seizures, was designed primarily in a criminal law enforcement 
context to make sure that American citizens' privacy was protected. But 
what many of those who object to using these provisions fail to 
acknowledge is that our intelligence community has to be able to 
investigate and detect threats to the American homeland before they 
occur.
  After 9/11, where almost 3,000 people lost their lives, there was 
plenty of time to do a criminal investigation and law enforcement 
action, but we had

[[Page 7922]]

failed in our most essential obligation, which is to detect these 
threats ahead of time and to prevent them from ever occurring.
  Importantly, as we discussed the week before last, section 215 in 
particular included vigorous oversight measures. It is important for 
people to understand that the executive branch--in other words, the 
White House--and the legislative branch, which is both Houses of 
Congress, and the courts are all very much engaged in the vigorous 
oversight of these tools used to protect the American people. By taking 
this tool away from those investigating the constant threat stream to 
American citizens, we have unfortunately given terrorists an advantage 
right here in our own backyard.
  As we have reiterated over and over that these threats to our 
homeland are real and they are growing. Why in the world would we take 
time to gamble with our national security?
  Secretary of Homeland Security Jeh Johnson said that our country has 
entered ``a new phase in the global terrorism threat'' as the so-called 
Islamic State or ISIL continues to encourage people right here at home 
to take up the cause of global jihad. Perhaps, to me, the best and most 
concrete examples are events such as what happened in Garland, TX, just 
a few weeks ago, when two people who had been communicating overseas 
with representatives of the Islamic State were incited to take up arms 
against their fellow citizens here in the United States of America. Why 
in the world would we want to deny our law enforcement and intelligence 
authorities lawful tools available to them to be able to identify 
people plotting threats against the homeland and to prevent those 
threats from actually being carried out?
  Thank goodness, due to the vigilance of local police and other law 
enforcement authorities, what could have been a bloodbath in Garland, 
TX, was averted. Why in the world would we want to take away a tool 
available to our intelligence and law enforcement authorities and raise 
the risk that an attack here in the homeland be successful rather than 
thwarted?
  This is not just something that happened in Garland. A few weeks ago, 
FBI Director James Comey described the widespread nature of the 
threats--so widespread, in fact, that he said all 56 field divisions of 
the FBI have opened inquiries regarding suspected cases of homegrown 
terrorism. So let me repeat. Every FBI field division in the country is 
currently investigating at least one suspected case of homegrown 
terrorism.
  As my colleagues must know, we do not have to go very far to find 
other examples like the one I mentioned that manifested itself in 
Garland. We read about examples regularly. Just 2 weeks ago, also in my 
home State of Texas, the FBI arrested a man who had reportedly pledged 
his allegiance to the leader of ISIL. According to the FBI, he is but 
one of hundreds of ISIL sympathizers here in the United States, which 
ought to alarm all of us, ought to be a call to vigilance and to make 
sure we maintain every available legal tool consistent with civil 
liberties to protect our citizens.
  So I think it is obvious that section 215 and the two 
noncontroversial national security provisions at issue should not have 
been allowed to expire, but unfortunately they were, and now it is our 
responsibility to fill that gap by passing this legislation and taking 
up the important amendments, which will actually strengthen the House 
bill.
  We know our country and our people are the target of terrorists 
again, and we need to do everything we can to stop them. Well, my 
initial preference was to extend these portions of the PATRIOT Act for 
a short period of time so we could begin the debate and discuss the 
next best move to address these issues without giving the terrorist any 
advantage by handicapping the men and women committed to protecting our 
homeland.
  At a time when the threats to our country are increasing, we should 
be enabling our intelligence officials and law enforcement with the 
tools they need and not stripping them of the authorities they require 
in order to protect us. Clearly a full extension of section 215, which 
was easily extended in 2011, is not possible at this time. But the last 
thing any one of us should do is allow this program to continue to 
remain dark.
  I encourage our colleagues to join me in quickly working together to 
reauthorize these critical provisions. Every day we allow these 
authorities to remain expired, our intelligence officials are forced to 
act with one hand tied behind their back.
  We plan to make minor improvements to the House-passed bill, and I 
think they make a lot of sense, things such as actually getting a 
certification by the Director of National Intelligence and this plan to 
let the telecoms continue to hold this information and then, after a 
court order is provided, allow that search. But certainly we should 
want to know whether this actually will work in a way that is 
consistent with our national security.
  So, essentially, the House provisions are the base bill here, but I 
think Chairman Burr and others on the Intelligence Committee have 
recommended some very positive, commonsense improvements which will 
make this bill better. Working together, the Senate and the House, I 
think we can make sure these necessary authorities are restored.
  As elected representatives of the American people, it is our duty to 
make sure the balance between physical safety and civil liberties is 
struck. We will do that again. We can do that responsibly by extending 
these authorities and coming together to find a long-term solution that 
keeps these invaluable tools in place.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I thank the majority whip for his comments 
and for his support of the extension of 215 and for what I think are 
some very reasonable changes to it. Some of what the Senator from Texas 
said took me back to some of the hearings I know the Presiding Officer 
was in where intelligence officials were asked about this transition. 
They were asked very simply ``Will it work?'' and the answer they gave 
was ``I think so.'' To an institution such as Congress, where our No. 1 
responsibility is the defense of the country, ``I think so'' is not the 
answer on which you base the change of a program. Therefore, that is 
why there is a debate in Washington right now--now in the Senate, soon 
to be with the House--as to whether 6 months is sufficient time to be 
able to address it.
  I know the Presiding Officer of the Senate heard individuals from the 
Justice Department say: Well, if this does not work, we will get back 
to you on changes.
  One of the reasons this tool is in place is because we identified 
shortcomings in our capability to identify terrorists post-9/11.
  Let me revert back--and I hate to go to history, but on 9/11, as the 
majority whip said, there was the loss of almost 3,000 lives, American 
and international lives. Washington, New York--could have been this 
building had some brave passengers not found out what they were up to 
and stopped them.
  I remember those days and weeks and months right after 9/11 as a 
member of the House Intelligence Committee. There are not many of us 
left who were here. I think only 40 percent of the Senate was here on 
9/11. What were the questions that went through our minds? Who did 
this? Why did they do it? How wide was the plan to attack us? We had to 
start from a dead stop and try to figure out the answer to all of those 
questions. It is amazing that in a very short period of time we were 
able to construct tools that made sure that America would never be 
faced with questions such as those again and that if we were, it would 
be a very short period of time, not weeks and months and in some cases 
years to connect the dots and try to figure out how to keep this from 
happening again. Section 215 was one of the tools that was created as a 
result of 9/11.
  I revert back to the Director of the FBI, who said last year that had 
section 215 been in place prior to September 11, the likelihood is that 
we could have connected the dots between

[[Page 7923]]

a known terrorist we lost track of by the name of Al Mihdhar, who 
traveled from Kuala Lumpur to San Diego before we had a no-fly list, 
who communicated via cell phone with a terrorist cell operating out of 
Yemen--we had the numbers out of Yemen; we just did not have the number 
of Al Mihdhar. Had 215 been in place, we could have tested the 
terrorist cell phones against the database we had. The FBI Director's 
own words: We probably would have stopped that component of 9/11.
  Al Mihdhar and his roommate, I believe, were the two who flew the 
plane into the Pentagon. Would it have captured everybody? Possibly 
not. Would identifying two individuals incorporated in a cell inside 
the United States have allowed the FBI to work through traditional 
means of investigation and find the rest of that cell, those planes 
directed--two planes toward New York and that fourth plane directed to 
the Capitol? Maybe. Maybe it would have.
  Maybe when you are trying to stop something, it is good, but when you 
are talking about eliminating something, ``I think we can do it'' does 
not meet my test. That is why one of the amendments I will ask my 
colleagues to vote on is an amendment to make the transition period not 
6 months but 12 months. It is to make sure we have allowed the NSA a 
sufficient amount of time to technologically prepare the telephone 
companies to be able to search their data in a timeframe that we need 
to get in front of an attack versus in back of an attack.
  It is very simple: If it happens in front, it is intelligence. If it 
happens in back, it is an investigation. It is a legal investigation. 
It has already happened. We are trying to make sure we stay in front.
  I would like to take a moment to go over some myths about the PATRIOT 
Act.
  Here is myth No. 9: The President put in place two panels--a review 
panel and another one called the Privacy and Civil Liberties Oversight 
Board--and, interestingly, both panels told him the same thing: that 
what he was doing was illegal.
  Fact: President Obama's review panel never opined on the legality of 
the metadata program. It said the question of the program's legality 
under the Fourth Amendment ``is not before us,'' and it is not the 
review panel's job to resolve these questions of whether the program 
was statutorily authorized.
  Myth. Fact.
  Myth No. 8: The national security letter is similar to what we fought 
the Revolution over.
  I am not a lawyer, but given what we have been faced with since 
September 11, I think it would have been easier to go to law school 
than to try to figure out some of these things. The national security 
letter, despite its ominous-sounding name, is nothing more than an 
administrative subpoena. It has the authority equivalent to the 
authority postal inspectors employ to investigate mail fraud or IRS 
agents use to investigate tax fraud. Postal inspectors and IRS agents 
do not need judicial authorization to issue an administrative subpoena. 
Our Framers would likely be embarrassed if the post office had more 
authority to investigate postal fraud than the Federal Government had 
to protect us from terrorism.
  Before 215, the FBI would issue a national security letter that gave 
them expansive investigatory tools. Now, they could not do it in a 
timely fashion, but eventually they could not only get to a search of 
telephone numbers, they could search financial records, and they could 
search anything about an individual.
  Let me remind my colleagues that what we are talking about in section 
215, the metadata program--we have never identified an American. All we 
have is a pool of telephone numbers with no person's name attached to 
them, and we collect the date the call was made, the duration of the 
call, and the telephone number that it talked to. The only time that 
information can be queried is when we have a foreign telephone number 
that we know to be the telephone number of a terrorist. Where we were 
before was much more expansive with a national security letter, but it 
was not timely, and if you want to be in front of an act, you have to 
be timely. That is how 215 was created.
  Myth No. 7: NSA collects your address book, buddy lists, call 
records, et cetera, and then they put them into a data--I think the 
program is called SNAC--they put it all into this data program and they 
develop a network of who you are and who your friends are.
  Myth.
  Here is fact: SNAC is the National Security Agency Systems and 
Network Attack Center, which, among other things, publishes a 
configuration guide to assist entities in protecting their networks 
from intrusion. Its work could not be further from the allegation made.
  Myth No. 6: Executive Order 12333 has no congressional oversight.
  Boy, that is a strange one to the Intelligence Committee, which 
spends a lot of time on oversight of 12333. It is simply wrong. S. Res. 
400 of the 94th Congress created the Select Committee on Intelligence. 
CRS--the Congressional Research Service--points out that the President 
has a statutory responsibility to ``ensure that the intelligence 
committees are kept fully and currently informed of the intelligence 
activities of the United States.'' The committee routinely receives 
reports on such matters, including reports on NSA activities under 
Executive Order 12333. It is a part of the committee's mandate that we 
do successful oversight, and it is a requirement of any President that 
they make sure their administration fully cooperates and reports to 
both the Senate select committee and the House select committee.
  Myth No. 5: The President started this program by himself. He did not 
tell us about it. Maybe one or two people knew about it.
  Again, that is factually incorrect. Every Senator was put on notice 
of the program's existence in 2010 and again in 2011. My gosh, it has 
been a national--international debate over the last several weeks.
  Myth No. 4: The PATRIOT Act goes from probable cause, which is what 
the Constitution had, to articulable suspicion, down to relevance.
  This statement conflates issues. Articulable suspicion and relevance 
are not two different standards for the same thing. They both must be 
present--both must be present--in the metadata program.
  FISA, as amended by section 215 of the PATRIOT Act, allows the 
government to seek a court order requiring the production of ``tangible 
things'' upon a statement--articulation--of facts showing ``there are 
reasonable grounds to believe'' those things are ``relevant'' to an 
authorized investigation. This allows the government to seek call 
records from telecommunications companies. Then, when those records 
have been compiled into a database, that database can only be queried 
upon a reasonable articulable suspicion that the number to be queried 
is associated with a particular foreign terrorist organization.
  We keep getting back to this, and of all the conversations that are 
had on this floor about intrusion into privacy--one, let me state the 
obvious fact again. It is hard for me to believe we have invaded 
anyone's privacy when we have done nothing but grab a telephone number 
and we have no earthly idea to whom it belongs. And the only reason we 
would be concerned with that telephone number is if we pull a foreign 
terrorist telephone number and we search it and find somebody in 
America they have talked to. That is it. That is the entirety of the 
program, and it is all predicated on the fact that we don't search 
any--we don't query any data unless we have a foreign terrorist 
telephone number known, and that is what triggers the program to begin 
to meet the threshold of the court for a query of the information.
  Myth No. 3: The FISA Court has somewhat become a rubberstamp for the 
government.
  First, if that characterization is correct, then the Federal criminal 
wiretap process is even more of a rubberstamp for the government. The 
approval rate for title III criminal wiretaps is higher than the 
approval rate for FISA applications.

[[Page 7924]]

  Second, this claim does a disservice to the practice of the FISA 
Court, where there is often a back-and-forth between the government as 
applicant and the court. Again, this is not unlike the criminal wiretap 
process. The government often proposes to make an application before 
making its final application. The chief judge of the FISA Court has 
said it returns or demands modifications on these proposed applications 
25 percent of the time. In this respect, the high approval rate of FISA 
applications does not ``reflect the fact that many applications are 
altered prior to final submission or even withheld from final 
submission entirely, often after an indication that a judge would not 
approve them'' because it had not met the threshold.
  Third, the government has every interest in self-selecting only 
meritorious applications to bring to the court. The government is a 
repeat player at the FISA Court. It has a well-earned reputation as a 
broker of candor before the court, and there would be significant 
reputational costs to bringing nonmeritorious applications to the 
court.
  Let me sort of put in layman's terms what that is. The current 
wiretap standard--equivalent to going to a FISA Court--approves at a 
25-percent higher rate than the FISA Court. And the FISA Court is the 
court that expedites time-sensitive investigations and time-sensitive 
intelligence requests.
  Myth No. 2: The problem in the FISA Court is that when they take you 
to this court, it is secret.
  True, it is secret, but so are any other judicial hearings where 
classified information is before to the court, and that court shuts 
down and goes into a nonpublic setting, just the way this institution 
does. We will do it as we get into the appropriations bills, and when 
we get into classified, sensitive appropriations, these doors will 
shut, the Gallery will be cleared, the TVs will be cut off, and we will 
do our business on secret, classified information.
  It is only realistic to believe that the court--especially the court 
that hears the most sensitive cases--would only hear those cases in 
secret because the cases cannot be presented in public.
  The last, No. 1: The bulk collection of all Americans' phone records 
all of the time is a direct violation of the Fourth Amendment.
  The Fourth Amendment protects against unreasonable searches. A search 
occurs when the government intrudes upon ``a reasonable expectation of 
privacy.'' The Supreme Court has noted ``that a person has no 
legitimate expectation of privacy in information he voluntarily turns 
over to third parties.''
  The Court has also squarely determined that a person does not have a 
Fourth Amendment-protected privacy interest in the numbers he dialed on 
his phone. Telephone companies keep call records for billing purposes. 
When the government obtains those records from a third-party 
telecommunications provider, a search has not taken place for 
constitutional purposes, and therefore a warrant is not required.
  This program has been approved over 40 times by the FISA Court to 
exist. The program was instituted by the executive branch. The 
executive branch could end the program today. Why don't they? They 
don't because this program is effective. This program has thwarted 
attacks here and abroad.
  I know individuals have come on the floor and they have said: There 
is absolutely nothing that shows that section 215 has contributed to 
the safety of America.
  I can only say that they are factually challenged in that. You would 
not have the majority of the Intelligence Committee on floor lobbying 
for this program to continue in its current form. Now we know that is 
not going to happen, so we are trying to reach a modification of the 
current language so, in fact, we have a greater comfort level that the 
intelligence community can be in front of attacks and not behind them.
  I remind my colleagues that hopefully tomorrow afternoon we will be 
at a point where we are ready to vote on amendments. There will be 
three amendments to the USA FREEDOM Act.
  The first one will be a full substitute. It will take all the 
identical language of USA FREEDOM with two changes:
  One, it will require the telephone companies to notify the U.S. 
Government 6 months in advance of any change they make in their 
retention policy of the data, the telephone numbers. I think it is a 
very reasonable request that they give us 6 months' notice if, in fact, 
they are going to reduce the amount of time they keep that data.
  The second piece is that we direct the Director of National 
Intelligence to certify at the end of the transition period that we can 
successfully make the transition and that the technology is in place at 
the telephone companies, provided by the government, that they can 
query those numbers--in other words, that they can search it and take a 
foreign terrorist telephone number and figure out whether they talked 
to an American.
  In addition to that substitute amendment, there will be two 
additional amendments.
  The first one will take the transition period that is currently 6 
months in the bill and will simply make it 12 months. If I had my 
preference, it would be 24 months, but I think this is a fair 
compromise. And my hope is that, matched with the certification of the 
DNI, we will be prepared to transfer this data but to continue the 
program in a seamless fashion, although it will add some time--yet to 
be determined--to how quickly we can make the identification of any 
connection of dots.
  The second amendment very specifically will be addressing the amicus 
provision in the USA FREEDOM Act. I am going to talk about amicus a 
little later, but let me just say for my colleagues that in the USA 
FREEDOM Act, in numerous places, it says that the courts shall provide 
a friend of the court.
  I am not a lawyer, but my understanding from those who are lawyers is 
that ``shall'' is an indication of ``you must.'' The courts have told 
us that will be cumbersome and difficult and delay the ability of this 
process to move forward. So the courts have provided for us language 
that changes it to where the FISA Court can access a friend of the 
court when they feel it is necessary but not be required to have a 
friend of the court regardless of what their determination is.
  We will talk about that over the next just shy of a day, but it is my 
hope to all the Members that all three of these amendments can be dealt 
with before 24 hours is up and that passage of the USA FREEDOM Act as 
amended by the Senate can be passed to the House for quick action by 
the U.S. House and hopefully by the end of business tomorrow can be 
signed by the President and these very important programs can be back 
in place.
  I would make one last note--that I am sure Americans find it 
troubling that this program is going to be suspended for roughly 48 
hours. In the case of investigations that are currently underway, they 
are grandfathered and the ``lone wolf'' and roving wiretap can still be 
used, but new investigations have to wait for the reauthorization of 
this bill. From the standpoint of the metadata program, last night at 8 
o'clock it could no longer be queried, and it won't be able to be 
queried until this is reauthorized.
  There is time sensitivity on us passing this, just as there is time 
sensitivity in getting the language of this bill correct so that, in 
fact, we can query it, we can connect the dots, and we can get in front 
of an attack prior to the attack happening.
  I urge my colleagues in the Senate to spend the next 24 hours 
understanding what is in the USA FREEDOM Act. Look at the amendments. 
They are reasonable. They don't blow up this piece of legislation. They 
provide us the assurance that we can make this transition and that 
after we make the transition, the program will still work.
  I urge my colleagues to support all three amendments.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Ernst). The clerk will call the roll.

[[Page 7925]]

  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Madam President, it is time to get the job done on 
FISA. It is time to get the job done.
  From the beginning of this debate, I had aimed to give Senators a 
chance to advance bipartisan compromise legislation through the regular 
order. That is why I offered extension proposals that sought to create 
the space needed to do that. But as we all know, by now, every effort 
to temporarily extend important counterterrorism tools--even 
noncontroversial ones--was either voted down or objected to.
  So here is where we are. We find ourselves in a circumstance where 
important tools have already lapsed. We need to work quickly to remedy 
this situation. Everyone has had ample opportunity to say their piece 
at this point. Now is the time for action.
  That is why, in just a moment, I will ask for unanimous consent to 
allow the Senate to consider cloture on the House-passed FISA bill, 
along with amendments to improve it, today--not tomorrow but today.
  There is no point in letting another day lapse when the endgame is 
clear to absolutely everyone--we know how this is going to end--when we 
have seen such a robust debate already, a big debate, not only in the 
Senate but across the country, and when the need to act expeditiously 
could not be more apparent.
  Madam President, I ask unanimous consent that at 6 p.m. today, the 
Senate vote on the pending cloture motion on H.R. 2048, the U.S. 
FREEDOM Act, and that if cloture is invoked, that all postcloture time 
be yielded back and the Senate proceed to vote on the pending 
amendments under the regular order; that upon disposition of the 
amendments, the bill be read a third time, as amended, if amended, and 
the Senate proceed to vote on passage of the bill, as amended, if 
amended.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kentucky.
  Mr. PAUL. Madam President, reserving the right to object, I would be 
happy to agree to dispensing with the time and having a vote at the 
soonest possibility, if we were allowed to accommodate amendments for 
those of us who object to the bill. I think the bill would be made much 
better with amendments. If we can come to an arrangement to allow 
amendments to be voted on, I would be happy to allow my consent. But at 
this point, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Madam President, without consent to speed things up, 
the cloture vote will occur an hour after the Senate convenes tomorrow, 
on Tuesday. Therefore, Senators should expect the cloture vote at 11 
a.m. tomorrow.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Madam President, before the recess, there was an attempt to 
try to bring finality before this bill expired. At that time, I reached 
out to my friend and colleague from Kentucky, Senator Paul, and offered 
him my assurance, as manager of the bill, that we would take up his 
amendments. But as the President of the Senate knows, if any one 
Senator objects to a vote, then a vote does not happen. I consented at 
that time that I would initiate a tabling of his amendment so that 
there could actually be a vote. There has been every attempt to try to 
accommodate amendments. I think that given the short time that we are 
dealing with, where we are trying to make sure that the expiration of 
these needed tools is as limited as we can, the leader is exactly 
right. You cannot go outside of the processes that were already 
triggered prior to this.
  I think we have made every attempt to try to accommodate the current 
Senate rules, but unfortunately, there were objections to that as we 
departed town over a week ago, and we are where we are.
  For my colleagues' sake, let me restate where we are. We have had the 
expiration as of midnight last night of section 215. Section 215 has 
many pieces to it, but there are three that are highlighted. One is the 
``lone wolf'' provision, an individual who has no direct tie to a 
terrorist organization but could be radicalized in some type of 
communication, and ``lone wolf'' provides us the ability to target them 
without a direct association to a terrorist group. And roving wiretaps 
are the ability to target an individual and not a specific phone.
  These two are noncontentious, and there was a request by unanimous 
consent yesterday before the expiration to extend those two pieces. 
There was an objection. The Senate operates by rules. When one Senator 
objects, everything stops. For that reason, those two provisions 
expired last night.
  Let me say for the benefit of my colleagues and for the American 
people that any investigation that was currently under way as of 12 
o'clock last night can continue to use those two tools. What is 
affected while we are in this expiration period is that you cannot open 
a new investigation and use those two tools to investigate that 
individual. So we are limited on anything that might have opened since 
12:01 this morning.
  My hope is that the Senate will dispose of all of the 215 provisions 
by 3 o'clock tomorrow. We can turn the faucet back on, and law 
enforcement can use those two tools.
  But the third piece has been the focus of contention in the Senate 
and in the country, and it deals with a program called the metadata 
program. It is a scary word. Let me explain what the metadata program 
is.
  The NSA receives from telephone companies a telephone number with no 
identity whatsoever. We refer to it as a deidentified number. They put 
all of that into one big database. The purpose of it is that when we 
find a known terrorist outside of the country and we have his telephone 
number, then we want the ability to query or search that big database 
to see if that known terrorist talked to anybody in the United States. 
We actually have to go to court--to the FISA Court--to get permission, 
and we have to have articulate, reasonable suspicion that there is a 
connection, that that known terrorist's telephone number can be tested 
against this database. We collect the telephone number, we collect the 
date the call was made, and we collect the duration of time of the 
call. There is absolutely zero--zero--content. There is zero 
identifier. There is not a person's name to it. People have questioned 
whether the program is legal. It is legal because the Supreme Court has 
said that when we turn over our data to a third party, we have no 
reason to believe there is a privacy protection. Therefore, when we get 
that telephone number from a telephone company, we throw it into a 
pool, and the only person who should ever be worried is somebody who is 
in that pool that actually carried on a conversation with a terrorist. 
And if we connect those two dots--a person in America and a known 
terrorist abroad--and they communicate, then it is immediately turned 
over to the FBI for an investigation. It is a person of suspicion. We 
turn it over to law enforcement. Law enforcement then goes through 
whatever court procedures they need to do to investigate that 
individual.
  That is the metadata program. That is the contentious thing that has 
bogged this institution down to where we have let it expire--in most 
cases because people have suggested it is something other than what I 
have just described.
  I have read a lot of the myths. Let me just go back through some of 
them again. I think it is important.
  Myth No. 1: The NSA listens to Americans' phone calls and tracks 
their movement.
  The NSA does not and cannot indiscriminately listen to Americans' 
phone calls, read their emails or track their movement. The NSA is not 
targeting or conducting surveillance of Americans. Under the Foreign 
Intelligence Surveillance Court--FISA Court--order, the only 
information acquired by the government from telephone companies is the 
time of call, the length of call, and the phone number

[[Page 7926]]

involved in the call. The government does not listen to the call. It 
does not acquire the personal information of the caller or the person 
who is called, which is obtained only through a separate legal process 
including, if necessary, a warrant based on probable cause, which is 
the highest standard that the judicial system has.
  Frankly, there is more information available in a U.S. phonebook than 
what the NSA puts in the metadata base. There is more privacy 
information that Americans share with their grocery store when they use 
their discount card to get groceries. There is more data that is 
collected at the CFPB on the American people than the NSA ever dreamed 
about, but there is nobody down here trying to eliminate the CFPB, 
although I would love to do it tomorrow. But the fact is, if this is 
about privacy, how can we intrude on anybody's privacy when we do not 
know who the individuals are of the phone numbers that we have? And 
there is the fact that the Supreme Court has said that when you 
relinquish that information to your phone company, you have no right of 
privacy.
  Myth No. 2: The NSA program is illegal.
  There have been some who have come to the floor and said that. The 
Supreme Court held in Smith v. Maryland and in U.S. v. Miller that 
there is no reasonable expectation of privacy in telephone call 
records, such as those obtained under section 215. Those records are 
not protected by the Fourth Amendment.
  Under the current 215 program, the judges of the FISA Court must 
approve any request by the FBI to obtain information from the telephone 
companies. Congress has reauthorized the PATRIOT Act seven times. The 
FISA Court reviews the act in an application every 90 days, and the 
FISA Court has approved the reauthorization of those 90-day extensions 
over 41 times.
  This is not a car on cruise control. This is a program that every 90 
days the court looks at and assesses whether for another 90 days we 
have the right to run the program. Put on top of that, the 
congressional oversight of the program is probably the second-most or 
third-most looked at program by the Senate and House Intelligence 
Committees of any program within our intelligence community.
  Myth No. 3: The NSA dragnet repeatedly abuses government authority.
  The government does not acquire content or personal information of 
Americans under the section 215 program. The names linked to the 
telephone numbers are not available unless the government obtains 
authorization through a separate legal process, including, if 
necessary, a warrant based on probable cause.
  Careful oversight of the program reveals no pattern of government 
abuse whatsoever. In fact, after more than a decade, critics cannot 
cite a single case of intentional abuse associated with FISA 
authorities. That is a far cry from the debate that we have listened to 
and, I might say, that has been covered on some of the national media.
  Myth No. 4: The government stopped only one plot using section 215.
  For anybody that was listening earlier to me, I described four 
specific things that I can talk about in public. There were four plots. 
A plot is something that you get to before an act is done.
  We even talked about the Tsarnaev brothers, who committed a violent 
act that killed and maimed a number of people in the Boston Marathon. 
We had the ability because we had a foreign telephone number that we 
thought was tied to the Tsarnaevs, and even after the fact, we were 
able to go back and use 215 to see if there was a foreign nexus to an 
act that had already been committed. In this case, we could not find 
that nexus, but we had the tools available so that law enforcement 
could responsibly look at the American people and say we have done 
everything to make sure that there are not additional participants in 
this act who might carry it out at the next marathon or the next race 
or the next festival. That is what our ability is supposed to be if, in 
fact, our oath of office as a Member of Congress is to defend the 
country, number one.
  Myth No. 5: The FISA Court is a rubberstamp.
  Despite all the claims that the FISA Court approves 99 percent of the 
government's applications, the FISA Court often returns or demands 
modifications to about 25 percent of the applications before they are 
even filed with the court. According to the FISA Court chief judge, the 
99-percent figure does not reflect--does not reflect--the fact that 
many applications are altered prior to the final submission or even 
withheld from final submission entirely, often after an indication that 
a judge would not approve them.
  Let me put this in perspective. Twenty-five percent more of the 
wiretap applications are approved than of FISA. I mean, that says 
enough right there. In comparison to Federal court documents which 
include wiretap applications as instructed, of the 13,593 wiretap 
applications filed from 2008 to 2012, the Federal district court 
approved 99.6.
  The only reason that FISA is at 99 percent is because when the 
government sees that they are not going to be approved, they withdraw 
the application. That seldom happens in wiretap applications.
  Myth No. 6: There is no oversight of the NSA.
  The NSA conducts these programs under the strict oversight of three 
branches of government, including a judicial process overseen by 
Senate-confirmed judges appointed to the FISA Court and a chief judge 
of the United States. Republicans and Democrats in Congress together 
review, audit, and authorize all activities under FISA. There are few 
issues that garner more oversight attention by congressional 
Intelligence Committees than this program, as well as the 
responsibilities imposed on the executive branch to make sure that the 
Federal agencies in a timely fashion share all information with the 
select committees in the Senate and the House for the purposes of 
oversight of our intelligence community. Now, some have suggested that 
because the Director of the NSA says we think we can do this, we should 
just trust them. Please understand that the reason we are having this 
debate is because some have suggested that the NSA cannot be trusted.
  Once again, I will state for my colleagues that we are going to do 
everything we can to wrap this up by 3 p.m. tomorrow. The debate about 
whether the data is going to transfer from the metadata program at NSA 
to the telephone companies has been decided. It will transfer. Over the 
next 24 hours, we will attempt to take up the USA FREEDOM Act--the 
exact language that was passed by the House--with a substitute 
amendment that embraces all of the House language with the exception of 
two issues. We will make two changes. One of the changes will require 
the telephone companies to provide a 6-month notice of any change in 
their data retention policy. In other words, if one telephone company 
has an 18-month retention program currently in place and they decide 
they are only going to hold the data for 12 months, they have to notify 
the Federal Government 6 months in advance of that change.
  The second change will require the Director of National Intelligence 
to certify that on the transition date, that the government has 
provided the technology for the telephone companies to be able to 
search the data in a timely fashion for us to stay in front of attacks.
  In addition to that substitute amendment, which I hope my colleagues 
will support because there are minimal changes, there will be two 
amendments to the bill.
  The first amendment will change the transition period from 6 months 
to 12 months. So when the Director of the NSA says ``I think we can do 
it in 6 months,'' to the Intelligence Committee, ``I think we can do 
it'' is not a good answer. So what we are asking is that we go from 6 
months to 12 months so we can make sure the technology is in place for 
this program to continue.
  The last piece is a change in the amicus language of the bill or the 
friend-of-the-court language in the bill. The bill itself uses the 
words that the

[[Page 7927]]

courts shall--which means must--have a friend of the court, and that is 
not needed in all cases. If that is applied to all cases, it will put 
in place a very cumbersome and untimely process.
  When we are dealing with trying to get in front of an attack and 
dealing with individuals who are linked to known terrorists abroad, we 
want to have a way to query that data, to search that data as quickly 
as we possibly can with the approval of the court. So what we have done 
is taken language that has already passed out of the Intelligence 
Committee and has been signed off by the courts that changes ``shall'' 
to ``must.'' It basically says that the court has the opportunity, 
anytime they need a friend of the court's advice, to turn to it and to 
get it, but it doesn't require that they have a panel set up that 
automatically sits in on every consideration, because a judge doesn't 
always need that.
  As the Presiding Officer of the Senate knows, the FISA Court operates 
in secret, which is another criticism of many people. Well, I don't 
want to share any secrets, but sometimes the Senate operates in secret. 
Most of the time, the Intelligence Committee operates in secret. 
Believe it or not, some titans of the courts in our country operate in 
secret. They have the authority to do it anytime there is secret or 
classified information that can't be shared publicly.
  Well, that is all the FISA Court does. That is the reason it is in 
secret. It is not because we don't want the American people to know 
that there is a FISA Court or that there is an application or a 
decision made by the FISA Court, but everything the FISA Court takes up 
is secret or classified, so it has to be done in secret, just like some 
of the budgets and some of the authorizations we do in the Senate that 
are classified. We shut these doors, we empty the Gallery, we cut off 
the TV, we hash out our differences, we come together, and we have a 
piece of legislation that only those people who are cleared can read. 
That is part of functioning. And part of functioning from a standpoint 
of getting in front of terrorism is to make sure the tools are in place 
to allow not only intelligence but law enforcement to do their job.
  I think when the American people understand how simple this program 
is--we take the telephone numbers, we take the date the call was made, 
we take the duration of the call, and if it connects to a known foreign 
terrorist number, then we turn it over to the Federal Bureau of 
Investigation and they go to court to figure out whether this is an 
individual they need to look at. It is no longer a part of the 
intelligence community. It is a valuable tool. It has helped us to 
thwart attacks in the past. My hope is that after we get through with 
business tomorrow at about 3 p.m., that this will continue to be a 
useful tool.
  I urge my colleagues to expeditiously consider not only the base 
language but the substitute and both amendments.
  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.
  Ms. MIKULSKI. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Remembering Beau Biden

  Ms. MIKULSKI. Madam President, I rise to speak about where we are as 
we debate the various aspects of the USA FREEDOM Act. However, before I 
proceed with my statement on the current issue before the Senate, I 
really wish to note the very sad passing of our Vice President's son, 
Beau Biden, who passed away at age 46 of brain cancer.
  Of course, the world knows this now because of the news announcement. 
Standing on the Senate floor, where I served with the Vice President 
when he was a U.S. Senator, I just personally want to express my 
condolences to him on behalf of myself, his friend in the U.S. Senate 
and his colleague on so many issues, as well as the people of Maryland.
  Once the news broke over the weekend, many people asked me in my home 
State: Did you know him? Had you ever met him? There is just a general 
outpouring of sadness for his family, his wife, his two children, and, 
of course, the Vice President and his stepmother Jill. So, Mr. Vice 
President, if you have the opportunity to listen, know that the U.S. 
Senate is sending our thoughts and our prayers to you during this 
difficult time.
  Madam President, I wish to speak now about where we are in terms of 
our parliamentary situation. Once again, here we are in the Senate 
where, when all is said and done, more is getting said than is getting 
done. I am a very strong proponent of the oath I took to defend the 
Constitution of the United States against all enemies. By that I mean 
we have to be able to protect this country. We need to have a sense of 
urgency about it.
  I am not only disappointed, I am deeply, deeply, deeply frustrated 
that the key authorities of the PATRIOT Act expired last night, when we 
had a path forward on legislation that would be constitutionally sound, 
would be legal, and would be authorized. But what did we do? We got 
ourselves into a parliamentary quagmire with the filibuster of one 
individual, which now has left us exposed in the world's eyes.
  Major authorities were given to our intelligence community to be able 
to pursue the surveillance of potential terrorists, and they have 
expired. Those authorities included ``lone wolf,'' the roving wiretap, 
and some other aspects involving surveillance, and we have just let 
them expire at midnight. Right now, I hope we do what we can to pass 
the USA FREEDOM Act without delay. We need to get these authorities 
restored. Do we need reform? Absolutely. But let's not delay. Let's get 
it going.
  Others are going to speak later on today on the merits of the USA 
FREEDOM Act. I believe it is our best opportunity to protect the 
Nation, while balancing privacy and constitutionally approved 
surveillance. I do support reforming the PATRIOT Act, but I don't 
support unilateral disarmament. I don't want to throw the PATRIOT Act 
away. I don't want to throw away our ability to place potential 
terrorists under surveillance. I don't want to give in under the guise 
of some false pretense about privacy where we say, Well, gee, I worry 
about my privacy, so the terrorists don't need to worry about us being 
able to pursue them.
  Our Nation needs to know that when bad guys with predatory intent are 
plotting against the United States of America, we are going to know 
about it and we are going to stop it. We are going to know about it 
because we have the legal authority to track them, put them under 
surveillance, and we are going to stop them before they do very bad 
things to our country.
  The purpose of my comments today is to stand up not only for the 
ability to have a law but also for the men and women who are working 
for the intel agencies--for the people who work at the National 
Security Agency in my own State, the FBI, and other agencies within our 
intel community who are essential to protecting our country against 
terrorist attacks, whether it is a ``lone wolf'' or State-sponsored 
terrorism.
  These dedicated, patriotic, intelligence professionals want to 
operate under a rule of law. They want to operate under a rule of law 
that is constitutional, that is legal, and that is authorized by the 
U.S. Congress. They are ready to do their job, but they are wondering 
when we are going to do our job.
  Congress needs to pass a bill, as promptly as it can, that is 
constitutional, legal, and authorized.
  We on the Intelligence Committee have worked long and hard on such a 
legislative framework. We have cooperated with members of the Judiciary 
Committee, including Senators Grassley of Iowa and Leahy of Vermont, 
who have also worked on this. We worked together putting our best ideas 
forward, doing the targeted reform that was essential, not pursuing 
unilateral disarmament, and we now have legislation called the USA 
FREEDOM Act. Is it a perfect bill? No, it is not perfect, but it is 
constitutional. If we pass it, it will be legal, and it will be 
authorized.

[[Page 7928]]

  I know the Presiding Officer is a military veteran and I support her 
for her service. The Presiding Officer knows what it is like when 
people try to trash America.
  Ever since Eric Snowden made his allegations, the wrong people have 
been vilified. The men and women of our intelligence agencies have been 
vilified as if they were the enemy or the bad guys.
  I have the great honor to be able to represent the men and women who 
work at the National Security Agency and some other key intelligence 
agencies located in my State. They work a 36-hour day. Many times they 
have worked a 10-day week. When others have been eating turkey or 
acting like turkeys, they were on their job, doing their job, trying to 
protect America.
  Let me tell my colleagues, these people who work for the National 
Security Agency, for the FBI, and other intelligence agencies are 
patriots. They are deserving of our respect, and one way to respect 
them is to pass the law under which they can then operate in a way that 
is again appropriate. At times, these men and women, ever since Eric 
Snowden, have been wrongly vilified by those who don't bother to inform 
themselves about national security structures and the vital functions 
they perform. Good one-liners and snarky comments have been the order 
of the day.
  Now, the National Security Agency is located in my State, but I am 
not here because it is in my State. I am here because it is located in 
the United States of America. Thousands of men and women serve in 
silence without public accolades, protecting us from cyber attacks, 
against terrorist attacks, as well as supporting our war fighters. I 
wish the Presiding Officer would have the opportunity to come with me 
to meet them sometime. They are linguists. They are Ph.D.s. The 
National Security Agency is the largest employer of mathematicians in 
America. They are the cyber geeks. Many of them are whiz kids. They are 
the treasured human capital of this Nation. If they had chosen to go to 
work in dot-com agencies, they would have stock options and time off 
and financial rewards far beyond what government service can offer. We 
need to be able to support them, again, by providing them with the 
legal authority necessary.
  Remember, that section 215 is such a small aspect of what these 
intelligence agencies do as they stand sentry in cyber space protecting 
us. People act as though that is all NSA does. They haven't even 
bothered to educate themselves as to the legality and constitutionality 
of where we are.
  Now, let's say where we are and let's say where we have been. Much 
has been said about the PATRIOT Act. It has been sharply criticized. 
There has been no doubt that it does require reform. That is why the 
Congress, in its wisdom, when it passed the bill right after 9/11, put 
in the safeguard of periodic sunsets so we could take a breather and 
reexamine the law to make sure what we did was appropriate and 
necessary.
  Congress did pass the PATRIOT Act so the men and women at the 
intelligence agencies worked under what they thought was the rule of 
law that Congress supported. President George Bush also told us and his 
legal advisors told us that it was constitutional, so people believed 
it. Those men and women at the intelligence agencies thought they were 
working under legislation that was constitutional, legal, and 
authorized because we passed it. Well, now others say it wasn't. Others 
even want to filibuster about it. They want to quote the Founding 
Fathers. Well, I don't know about the Founding Fathers, but I know what 
the ``founding mothers'' would have said. The ``founding mothers'' 
would have said get off the dime and let's pass this legislation.
  We do need good intelligence in a world of ISIL, al-Nusra Front, and 
Al Qaeda. NSA is one of our key agencies on the frontline of defense, 
and the people of the National Security Agency make up the frontline. 
As they looked at audits, checks and balances, and oversight, there was 
no evidence ever of any abuse of inappropriate surveillance on American 
citizens. We need to know that and we need to recognize that. Those 
employees thought they were implementing a law, but some in the media--
and even some in this body--have made them feel as though they were the 
wrongdoers. I find this insulting and demeaning.
  The morale at the National Security Agency was devastated for a long 
time. People were vilified, families were harassed for even working at 
the NSA, and, in some instances, I heard even their children were 
bullied in school. This isn't the way it should be. They thought they 
were patriots working for America. When the actions of our own 
government have placed these workers where they feel under attack--they 
were attacked by sequester and they felt under attack by a government 
shutdown because many of them were civilian employees at DOD--they were 
not paid--and now Congress's failure to reform national security has 
further then said: We can take our time. What you are doing is 
important, but we have to talk some more.
  Gee, we have to talk some more. What do you mean we have to talk some 
more? The only person in the Chamber is my very distinguished 
colleague, the distinguished colleague from Indiana, whom I work with 
in such a wonderfully cooperative way on the Intelligence Committee. 
You know we are not bipartisan, we are nonpartisan for the good of the 
country.
  Where is everybody who wanted to speak? Do we see 10, 20, 30, 40, 50 
Senators lined up waiting to speak? No. We have to kill time. I don't 
want to kill time. I am afraid Americans will be killed. We have to get 
on this legislation and we have to get our act together and we have to 
pass it. I want the people to know we cannot let them down by our 
failure to act and to act promptly.
  I come to the floor to say let's pass the USA FREEDOM Act and let's 
do it as soon as we can. I know a vote has been set for 11 o'clock 
tomorrow. That means that it will be almost 35 or 36 hours since the 
authorities expired, and then it has to go over to the House. So let's 
move it and let's keep our country safe and let's get our self-respect 
back.
  For those who looked at our country, there were three attitudes 
toward America: One was great respect for who we are, our rule of law; 
the other was our fear, because we were once the arsenal of democracy; 
and, third, the yearning to be in a country that worked under a 
Constitution, a Congress that worked to solve the problems of our 
Nation. Can we get back to that? I know the Presiding Officer wants to 
get back to that. I know my colleague here wants to be part of that.
  Let's get back together, where shoulder to shoulder we shoulder our 
responsibilities, pass the legislation we need to, protect our country, 
respect the men and women who work there, and say to any foe in the 
world that the United States of America stands united and is willing to 
protect us, and to the men and women who work for us in national 
security, we will support you by passing legislation promptly that is 
constitutional, legal, and authorized.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Madam President, I want to thank my colleague from 
Maryland, a member of the Senate Intelligence Committee. It is obvious 
this is a bipartisan effort in dealing with the security of the 
American people. The Senator from Maryland is not from my party. 
Together, we serve on the Intelligence Committee. We have served 
hundreds of hours on that committee together doing everything we can to 
provide our country with the opportunity to protect Americans from 
harm.
  The threat to Americans today has never been greater. We are dealing 
with fires raging in the Middle East and terrorist groups forming as we 
speak, targeting the United States and Americans, and inspiring 
Americans to take up arms against their fellow citizens for whatever 
jihadist cause they are using as the basis for the brutality that is 
spreading throughout the Middle East and that can happen here if they 
respond to these inspirational social

[[Page 7929]]

media requests from organizations such as ISIS, Al Qaeda, and many 
others.
  I understand Americans' frustrations and concerns about their civil 
liberties and privacy. Those concerns have been bolstered by acts of 
government that can hardly be explained. Look at what has taken place 
with the IRS. Talk about targeting people, invading their privacy and 
civil rights and using the organization of government for political 
purposes is outrageous. Of course, people are up in arms about all of 
this, the debacle of Benghazi and Fast and Furious and on and on over 
the years. One can go into what has happened to instill distrust in the 
minds of the American people.
  When a program such as this comes along and, unfortunately, the 
American people are told by Members of this Congress falsehoods as to 
what this program is and what it isn't, it just feeds the narrative 
that Washington is in their bedroom, Washington is in their home, it is 
in their phone, it is listening to their calls--Washington is 
monitoring everything they do--their locations.
  This simply is not true. We have an organization and tools put in 
place with that organization, the National Security Agency, following 
the tragic events of 9/11 that the American people insisted on putting 
in place. Let's use the tools that we can to try to prevent another 9/
11 from happening, to try to identify terrorist attacks before they 
happen, not to clean up after they happen.
  The frustration for those of us on the Intelligence Committee is we 
are not able to come down and refute statements that are false that are 
made here without breaching our oath not to release classified 
information. We have had briefings with all of our Members. Some don't 
choose to attend, and therefore their narrative continues without any 
ability to publicly challenge what is being said. It has been said on 
this floor that Big Government is listening to everyone's phone calls. 
That is patently false.
  First of all, it is impossible. There are trillions of phone calls 
made every day throughout the world. The calculation is that it would 
take 330 million employees sitting there monitoring Americans' phone 
calls to be able to listen to everyone's phone calls. It is an 
impossibility, No. 1.
  No. 2, it is guaranteed that this is not happening because the 
authorities given to the National Security Agency prevent that from 
happening. There are layers and layers of attorneys and others who 
oversee this process, including those of us in the Intelligence 
Committees in the Senate and the House, the Justice Department, and the 
executive branch. All three branches of government are so concerned 
that this program could potentially be abused that the oversight is 
such that it would take a monumental conspiracy, involving hundreds and 
hundreds of people, to all agree that, yes, let's do this and breach 
the law.
  If what has been said on this floor about the nature of this program 
was correct, I would be the first to line up and say I am here to 
defend the liberties that are being abused by the government. I 
guarantee to my constituents that this is a high priority for me, that 
I do not support anything that would violate their civil rights or 
violate their privacy. That is true of those of us on the Intelligence 
Committee, whether we are a Democrat or Republican.
  We have heard today from Senator King, who is on the committee. We 
have heard from Senator Mikulski of Maryland, who spoke. We heard from 
Senator Nelson, who was formerly on the committee on the Democratic 
side. On the Republican side, our leader of the committee, Senator 
Burr, has laid out in great detail how this works.
  The tragedy is that in being forced to describe what the program is 
and what it isn't, we have had to declassify information. Guess who is 
listening.
  I hope a lot of the American people are listening because they need 
to understand that much of what they have heard is simply a falsity. It 
is factually incorrect.
  I am not going to go into why this has happened, why some Members 
choose to say things like--and I am stating what has been said on this 
floor--``Big Government is looking at every American's records, all 
Americans' phone records all the time. They have said the NSA collects 
Americans' contacts from address books, buddy lists, calling records, 
phone records, emails, and do we want to live in a world where the 
government has us under constant surveillance?''
  None of us want to live in that kind of world. That is why we live in 
America. That is why America is what it is. This is not Stasi Germany. 
This is not a Communist regime. This is not a totalitarian society. We 
would not allow that here. Our Constitution guarantees privacy and we 
cherish that privacy and we protect that privacy. But to come down to 
this floor and make statements such as those is irresponsible, and it 
is a narrative that is just not the case.
  Poor Ben Franklin has been dragged into this because the quote that 
has been attributed to Franklin that should drive our decision on this 
point was: ``Those who would give up essential Liberty to purchase a 
little temporary Safety deserve neither Liberty nor Safety.''
  I agree with that, but the key word here is ``essential.'' This 
matter has come before the Supreme Court, and the Supreme Court has 
said that what the NSA is doing in storing phone numbers only--not 
names, not collecting information--is not essential to liberty. They 
have declared it as a necessary, effective tool that is open. The only 
information that is in your phone record is the date of the call, the 
number called, the duration, and the time of the call--nothing more 
than that.
  Why is this done? It is done so that when we determine the phone 
number of a known terrorist in a foreign country, we can go into that 
haystack of phone numbers and say, Was that phone number connected to a 
phone number held by someone in America?
  In fact, the former Director of the CIA said that we likely would 
have prevented 9/11 because we now know that a phone number in America 
was connected to a phone number of a terrorist group--Al Qaeda--and we 
could have taken that information to the FISA Court or to a court and 
gotten permission to check into that to see if that was leading to some 
kind of terror attacks.
  It doesn't take much to recall the images of what happened on 9/11, 
where we were, what horror we stood and watched coming over the 
airwaves, and the tragedy and the loss of life that took place, 
changing the face of America.
  So it is important that we tell the American people what it is and 
what it isn't. It is important that Members take responsibility to 
understand this is an issue that rises above politics. This is an issue 
that cannot be used and should not be used for political gain, whether 
it is monetary gain or whether it is feeding a base of support that 
responds to the scare tactics of America listening to all of your 
calls, Big Government in all of your business.
  This is too important an issue. This is about the safety of America. 
This is about preventing us from terrorist attacks. The threat is real, 
and it is more real than it has been in a long, long time.
  So I talked yesterday about the existing program, what it was and 
what it isn't. It has been talked about by my colleagues on the floor. 
We have moved to a point where we have to choose between the better of 
two bad choices.
  One choice is that we eliminate the program. One of our Members in 
the Senate has publicly indicated that is what he wants to do. He 
claims it is unconstitutional. Unfortunately, he doesn't have the 
support of the Supreme Court that has dealt with this issue, nor the 
constitutional lawyers. That is a case that just simply cannot be made 
because it doesn't impede on anyone's liberty.
  Again, I would say, if it did impede on Americans' liberty, I would 
be the first in line to state that and to fight against it. But it is a 
solution to something that is not a problem.
  But secondly, because one individual would not grant even the 
shortest of

[[Page 7930]]

extensions, even an extension on two noncontroversial parts of this 
program that no one has challenged, to allow that to go forward so that 
we could keep something in place to address a potential threat that 
could happen--even that was denied us last evening as the clock was 
ticking toward midnight, and the program expired. Someone who is so 
determined to eliminate this entire program, who has misrepresented 
this program to the American people, so determined to stay with his 
narrative that he would not even allow an hour, not even allow a day, 
not even allow minutes for us to try to reconcile the differences here 
with the House of Representatives--and those differences are pretty 
small.
  Senator Burr has been in negotiations with the House and with Members 
of the Senate relative to some changes and modifications in the USA 
FREEDOM Act, which was supported by a significant bipartisan majority 
in the House of Representatives. I think that is a step in the right 
direction. It does not solve all of the problems. My concern with the 
FREEDOM Act is a concern of many; that is, the act has some major 
flaws, some of which I thought were fatal. But I have to measure that 
against nothing.
  Thanks to the procedural maneuvering by one Member here, we have been 
left with only two choices. The Senate majority leader laid those out 
with some clarity yesterday and today. The choices are completely 
eliminate the program, go completely dark, take away this tool, and put 
Americans more at risk--thanks very much, but it is over and try 
something else--or a provision that has been passed by the House of 
Representatives that moves collection of the phone numbers from NSA to 
the telephone companies. The problem with the bill is that it does not 
mandate that movement. It is a voluntary act that the phone companies 
are most likely not going to want to adhere to, primarily because they 
now have to set up a situation where they potentially could be liable 
for breaches of the people who are overseeing their program.
  There are 1,400 telephone companies in the United States. Many of 
them are small. But to move this program, which has six layers of 
oversight at NSA, which has the oversight of the Senate Intelligence 
Committee and the House Intelligence Committee, which has the oversight 
of the Department of Justice and the administration, and which has the 
oversight of the Federal intelligence court called FISA--all of that 
security oversight--to make sure there is no breach will now get 
transferred over to up to 1,400 telephone companies.
  The people who oversee this program--it is a very small number at NSA 
who operate this program--have had intensive background checks and 
security clearances. They have proven their commitment to make sure--to 
do everything possible not to abuse this program. There has never been 
a documented case, never one case of an abuse of this program--again, a 
solution to something that is not a problem.
  All of a sudden, now we will have dozens, if not hundreds, if not 
more than 1,000 phone companies all putting their own programs in 
place. This is not something they would like to do, No. 1, because it 
is going to be very costly, and, No. 2, they cannot guarantee that 
every one of their people is going to have the same kind of background 
check and security check NSA has. They will not have the oversight of 
the Intelligence Committees, of the Justice Department, of the 
executive branch.
  We are trusting a private entity to do the kinds of things that 
multiple agencies do. And you can just count on probably some breaches 
of security there as people want to use the capability to abuse that 
program for whatever reason--maybe checking up on their wife or their 
girlfriend or their business partner or who knows for what possible 
reasons they could use it. So it really does not add privacy 
protections; it detracts from privacy protections.
  Secondly, the retention of records is voluntary. Now, if we have some 
amendments that are passed by this body and accepted by the House, we 
will get notification if a company does not want to retain those 
records. But there is no retention authority granted here to us to 
ensure that those companies will keep any phone numbers, and then the 
capability of the program will be significantly reduced.
  We are having to look at a very sophisticated program that the NSA 
says: We are not sure it is going to work. We are not sure if this 
process that the FREEDOM Act requires to replace what we have now is 
going to be effective.
  It is going to take many months to determine if that is the case. So 
it is an untested program that we are putting a bet on that this is 
going to work. It would be nice to know we had something in place we 
can easily replace this with. So we are going from the known to the 
unknown. We are making a bet that this is going to be more effective 
and provide more privacy for the American people. It is a diminishment 
and a significant degradation of the current program. It will not be as 
effective as the program that is currently in place. Nevertheless, we 
have to weigh this against nothing. That is the position we have been 
put in because one Senator would not allow an extension of time for us 
to have a more lengthy debate and reasonable negotiation in 
consultation with the House of Representatives to arrive at something 
that will give us more assurance that we have a program in place that 
does not breach privacy but allows us to detect potential terrorist 
attacks and stop those attacks before they take place.
  Having had to go through all of this and raise these kinds of issues 
here and talk about a fellow colleague is not fun. It is not something 
I hoped I would ever have to do. But I could not stand by and watch a 
program that is helping protect American people from known terrorist 
threats and let their safety be jeopardized by falsehoods that are 
being said about what this program is and is not.
  It looks like we are coming together on something that is far from 
what we need, that is going to significantly degrade our capability, 
but it is the only choice that we have. We are going to have to weigh 
that decision. Is something that is far less better than nothing? 
Ultimately, given the fact that these threats have never been greater, 
something--even if it is not what we now have--something is better than 
nothing.
  But we have been put in this situation unnecessarily by 
misrepresentations and a public that has not been informed. It is not 
their fault. We have not been able to because so much of this has been 
classified. Now, much of it is. Our adversaries, the terrorist groups, 
know a lot about the program they did not know about before. Thanks to 
Edward Snowden and thanks to some misrepresentations, we are left with 
the devil's bargain, and that is to choose the best of the worst.
  We will talk this through today. We will have a vote tomorrow. In my 
mind, it is absolutely essential that the modifications that are being 
made, that are being presented--I will not go into depth about those. 
It has already been talked about here. It is essential that those be 
passed by this body. It is, of course, essential that the House accept 
them. I know a lot of negotiation has gone on back and forth, and it 
will continue. But it is the only way to keep a program in place. Even 
as degraded as it is, even as compromised as it is, it is the only way 
to keep a program in place.
  So I will be supporting those tweaks, those changes, even though I 
think they are far short of what we need to do to fix the issue that 
was rushed through the House without much deliberation. But to make it 
stronger, to put it in a better position, I will support those. If 
those amendments can be passed, then I will reluctantly choose to vote 
for something that is better than nothing, as degraded as it is, in 
order to keep this program as one of the essential tools--one of many--
as we collect information, keep that in place.
  I know my colleague from Ohio has been seeking the floor for some 
time. I apologize for taking too long.

[[Page 7931]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN. Madam President, I ask unanimous consent that following my 
remarks, Senator Blumenthal be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Condolences to the Biden Family

  Mr. BROWN. Madam President, first, I want to offer my deepest 
sympathy and condolences to Vice President Biden and the entire Biden 
family. The Vice President has been met with more personal tragedy than 
any person should have to endure in any lifetime. He has faced it all 
with remarkable grace. He has persevered to accomplish so much good for 
his family, for his State, and now for his country. We are all indebted 
to him for that. I know he and Jill and the whole family are in our 
thoughts and prayers today.


                           Export-Import Bank

  Madam President, turning to the business before the Senate this 
month--business that should be in front of the Senate this month--the 
Senate banking committee will hold two hearings beginning tomorrow on 
the Export-Import Bank. It is urgent that the Senate move to 
reauthorize the Ex-Im Bank before the charter expires on June 30.
  Frankly, I find it both curious and alarming and also troubling that 
we seem to be doing this over and over. We do a transportation bill 
only for a few weeks or a few months. We do the Ex-Im Bank for only a 
few weeks or a few months. When we act that way, it is wasteful, it is 
alarming to many, and it makes it almost impossible for companies and 
State departments of transportation and State development agencies to 
plan. It means that far too many companies simply cannot attract the 
investment they need because of the uncertainty.
  When I hear people complain in this body about the uncertainty of 
government and of government acting, and then it is those same people 
who so often block the Export-Import Bank, who want to stumble along 
for a few weeks of reauthorization or block a transportation bill--that 
clearly undermines the ability for our economy to grow and clearly 
undermines and erodes any kind of investment and planning we should be 
doing.
  In today's global economy, we should provide American businesses with 
predictability and support to sell their products around the globe. 
This should not be controversial. Like the Transportation bill, the 
Export-Import Bank--at least it used to be this way--there was almost 
unanimity. There was consensus. For instance, in 2006 the Export-Import 
Bank was passed by unanimous consent. For those obviously not 
necessarily conversant with Senate-speak, unanimous consent means 
nobody comes to the floor and objects. That means unanimous. It means 
that we move together as one to try to do something which obviously 
adds to our GDP, helps our workers, and helps our community.
  In places such as Columbia and in Mahoning County in Ohio, in places 
such as Dayton and Toledo, I know what globalization has done for our 
economy. I know that when we can do some things like the Export-Import 
Bank and a long-term transportation bill and actual planning, it helps 
the economy grow.
  I know what the plant closings in those communities have meant to 
places such as Mansfield and Gallopolis and Lima and Hamilton. When a 
plant closes, it not just hurts that family or the employee, it hurts 
the business, it hurts the community, and it hurts the local hardware 
store and everybody else.
  We know the Ex-Im Bank supports thousands of businesses, large and 
small, and hundreds of thousands of American jobs. According to the Ex-
Im Bank's estimates, it supported $27 billion in exports and 160,000 
American jobs. It is supporting $250 million in deals in just Ohio 
alone, my State, 60 percent of which went to small business.
  Opponents who like to talk about corporate welfare--the same people 
who by and large vote for trade agreements and tax cuts for the wealthy 
and trickle-down economics--those same people say this is corporate 
welfare.
  No, really, it isn't. Our government actually makes money on this, 
and it is aimed primarily at small businesses. The Ex-Im Bank fills 
gaps in private export plans. It charges fees, and it charges interest 
on loan rate-related transactions. The Ex-Im Bank covers its operating 
costs and its loan costs. Last year, Ex-Im returned $600-plus million 
to our Treasury. So it doesn't cost taxpayers; it actually brings money 
to our country--money that otherwise might go to foreign imports. If we 
don't have a big enough trade deficit, this would make it worse.
  We know that our competitors have their own export-import banks. 
There are some 60 of these around the world. Why should we unilaterally 
disarm and put our manufacturers and exporters at a competitive 
disadvantage? That is what we will do if the Bank's authorization 
expires at the end of this month. We need to give our companies, our 
businesses, and our workers the same leg up as they compete around the 
world. This should be about as obvious as it gets.
  Leader McConnell is committed to giving us a vote on Ex-Im 
reauthorization before it expires. I hope that he can manage it better 
than he managed the PATRIOT Act, FISA, the most recent issue, the NSA, 
which has been in front of the Senate, and better than he managed the 
trade bill that pushed all of this into this week and, as Senator Coats 
said rightly, caused this law to expire, which was a mistake.
  We should be planning here better. We should be coming together on 
issues where we can come together. We could have come together earlier 
on NSA. We could have come together earlier on trade a little bit 
better. We can certainly come together on a transportation bill and an 
Ex-Im Bank bill.
  I urge my colleagues in the House to act to reauthorize the Bank. 
Supporting U.S. exports should be a cause we all get behind. We have 
seen too many issues come out of this Senate with bipartisan support, 
only to watch them die a partisan death in the House. We can't let that 
happen with the Export-Import Bank.
  Once again, I hope my colleagues will join in pressing our 
counterparts in the House to get this done. We need to do it. The House 
needs to do it. We need to provide American workers the support they 
need to sell our products around the globe.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coats). The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I feel my speaking at this moment is 
appropriate because much of what I have to say follows logically from 
the last words of the Presiding Officer when he spoke recently on the 
USA FREEDOM Act because I agree with the Presiding Officer when he said 
we need a bill. We need to move forward and approve reforms and changes 
in the law that are contained in the USA FREEDOM Act. We may be in 
disagreement about some of the specifics. We may be in contention about 
the extent of the changes made. But there is a general consensus that 
this decade-and-a-half old law is in some need of revision.
  The USA FREEDOM Act contains many important and genuinely worthwhile 
changes in the rules that will apply as the United States helps to 
protect our security but also to safeguard and preserve essential 
rights and liberties. That is the balance which needs to be struck. It 
is a difficult balance in a democracy, one of the most difficult in an 
area where secrecy has to be maintained because surveillance is more 
useful if it is done in secret, but at the same time, rights need to be 
protected in an open society that prides itself on transparent and 
accessible courts.
  Changes in the rules are welcome, such as the end to the present 
system of bulk collection of phone data. We may disagree on that point. 
Changes in the rules that I support may not be supported by many of my 
colleagues. I

[[Page 7932]]

believe the USA FREEDOM Act goes in the right direction on bulk 
collection of phone data by ending the current practice in its present 
form.
  What brings me to the floor is not so much a discussion about the 
rules as the method of enforcing those rules and implementing and 
assuring that they are faithfully executed, which is the role and the 
responsibility of the Foreign Intelligence Surveillance Court in the 
first instance. There are means of appeal from that court, but, as with 
many courts in our system, that one is likely to be the end destination 
on most issues, particularly since it operates in secret.
  The USA FREEDOM Act goes in the right direction by making it more 
transparent and requiring the disclosure of significant decisions and 
opinions when it is appropriate to do so and under circumstances that 
in no way should involve compromising our national security--striking, 
again, a good balance.
  But this Court, we have to recognize, is an anomaly in an open, 
democratic system. Its secrecy makes it an anomaly. It works in secret, 
it hears arguments in secret, and it issues opinions in secret. Its 
decisions are almost never reviewable. It is, unlike most of our 
institutions, opaque and unaccountable--understandably so because it 
deals with classified, sensitive information, protecting our national 
security against threats that cannot be disclosed when they are 
thwarted in many instances. The success of actions resulting from the 
FISA Court are most valuable when they are known to most American 
people.
  So this court is special. It is different. But let's not forget that 
if we were to say to the Founders of this country that there will be a 
court that works in secret, has hearings in secret, issues opinions 
that are kept secret, and its decisions will have sweeping consequences 
in constitutional rights and liberties, they would say: That sounds a 
lot like the courts that were abhorrent to us, so much so that we 
rebelled against the Crown, who said in the Star Chamber, in courts 
that England had at the time, that there was no need for two sides to 
be represented or for openness. Secret, one-sided courts were one of 
the reasons we rebelled. Men and women laid their lives on the line. 
They lost their homes, treasures, families, and paid a price for open 
and democratic institutions.
  So we should be careful about this anomalous court. It may be 
necessary, but we should try to make it work better, and we have.
  Transparency in the issuance of opinions is very much a step in the 
right direction where the issues are significant and the transparency 
of those decisions is consistent with our security at the moment. There 
may be a delay, but we should remember that the bulk collection of 
phone data, which the U.S. Court of Appeals for the Second Circuit said 
was illegal, persisted for so many years because the decision itself 
was never made known to the American people.
  There is another reform that I think is equally if not more 
significant. Courts that are secret and one-sided are likely to be less 
accessible not only because they are secret but because they are one-
sided. So as a part of this reform, I have worked hard and proposed, in 
fact, for the first time a bill that would create an adversarial 
process--two sides represented before the court.
  A bill that I sponsored in 2013 to reform the Foreign Intelligence 
Surveillance Court was joined by 18 cosponsors. I thanked them for 
their support, both sides of the aisle. The basic structures that I 
proposed are reflected in the USA FREEDOM Act today.
  Colleagues worked with me--and have since--on formulating that bill 
and in arriving at this moment where the central goals would be 
accomplished by section 401 of the USA FREEDOM Act, which provides for 
the appointment of individuals to serve as amicus curiae--friends of 
the court--in cases involving a novel or significant interpretation of 
the law.
  That provision would be egregiously undercut--in fact, gutted--by 
McConnell amendment No. 1451 because it would prevent these lawyers--
the amicus curiae who would be selected by the court--from obtaining 
the information and taking the actions they need to advance and protect 
the strongest and most accurate legal arguments, and that is really 
eviscerating the effectiveness of this provision as a protection. It is 
a protection of our rights and liberties because these amicus curiae 
would be public advocates protecting public constitutional rights, and 
they would help safeguard essential liberties not just for the 
individuals who might be subjects of surveillance, whether it be by 
wiretap or by other means, but for all of us, because the Foreign 
Intelligence Surveillance Court is a court. Its decisions have the 
force of law. Its members are article III judges selected to be on that 
court, sworn to uphold the law, both constitutional law and statutory 
law.
  So this provision, in my view, is fundamental to the court as a 
matter of concept and constitutional integrity. That integrity is 
important because it is a court, but it is also important to the trust 
and confidence the people have in this institution.
  I was a law clerk to the U.S. Supreme Court--specifically to Justice 
Blackmun--and I well recall one of the Justices saying to me: You know, 
we don't have armies; we don't have police forces; we don't have even 
the ability to hold press conferences. What we have is our credibility 
and the trust and confidence of the American people.
  That is so fundamental to the courts of this Nation that consist of 
judges appointed for life, without any real direct accountability, as 
we can be held to through the election process.
  The Foreign Intelligence Surveillance Court has taken a hit in public 
trust and confidence. There is a question about whether the American 
people will continue to have trust and confidence and whether that 
sense of legitimacy and credibility will continue. The best way to 
ensure it is, is to make the court's process as effective as possible 
not just in the way it operates but in the way it is seen and perceived 
to operate, the way the American people know it should operate, and the 
way they can be assured that their rights are protected before the 
court by an advocate, an amicus curiae who will protect those rights of 
privacy and liberty that are integral to our Constitution--and the 
reason why the Founders rebelled against the English.
  But there is another reason an advocate presenting the side opposing 
the government is important to the Foreign Intelligence Surveillance 
Court; that is, everybody makes better decisions when they hear both 
sides of the argument. Judges testified at our hearings in the 
Judiciary Committee about the importance of hearing both sides of the 
argument, whether it is a routine contract case or a criminal trial--
where, by the way, often a judge's worst nightmare is to have the 
defendant represent himself because the judge is deprived, and so is 
the jury, of an effective argument on the other side of the government. 
And so, too, here we were told again and again and again by the 
judicial officers who testified before our committee--and I have heard 
it again and again and again as I have litigated over the last 40 
years--that judges and courts work best when they hear both sides.
  I have no doubt the judges of the FISA Court believe as strongly in 
constitutional rights and implementation of the Constitution as anyone 
in this body, including myself. I have no doubt government litigators 
who appear before the court representing the intelligence agencies 
seeking warrants or other actions and approval by the court have a 
commitment no less than anybody in the United States Senate, including 
myself, to those essential values and ideals. But courts are 
contentious. They are places where people argue, where sides--different 
sides--are represented with different views of complex questions, and 
these issues before the court are extraordinarily complex. They also 
involve technology that is fast changing and often difficult to explain 
and comprehend and is easily minimized in the consequences that may 
flow from approval of them.
  So the USA FREEDOM Act would provide for, in effect, a panel of 
advocates and experts with proper security

[[Page 7933]]

clearances that the court can call upon to give independent, informed 
opinions and advocacy in cases involving a novel or significant 
interpretation of law, not in every case, not every argument but where 
there is, for example, the issue of whether the statute authorizes the 
bulk collection of phone records.
  I tend to think the outcome would have been different in that case if 
the court had been given the opposing side of the argument, the 
argument that eventually prevailed in the U.S. Court of Appeals for the 
Second Circuit by a unanimous bench.
  So the court really deserves this expertise. It deserves the other 
side and it deserves to hear both sides of the argument. Just to 
clarify, those two sides of the argument should not be in any way given 
so as to detract from the time necessary. If it is an urgency, the 
warrant should be issued and the arguments heard later, just as they 
are in criminal court. When there is an exigency of time--and I have 
done it myself as a prosecutor--the government's lawyer should go to 
the judge, be given approval for whatever is necessary to protect the 
public or gain access to records that may be destroyed or otherwise 
safeguard security, public safety, and that should be the rule here 
too.
  Now, in the normal criminal setting, at some point, a significant 
issue of law is going to be litigated if the evidence is ever used, and 
that is the basic principle here too. If there is a novel or 
significant issue of law, it should be litigated at some point, and 
that is where the amicus curiae would be involved. Security clearance 
is essential, timing is important, and there should be no compromise to 
our national security in the court hearing the argument that the 
advocate may present on the other side. It can only make for better 
decisions. In fact, it will benefit all of our rights.
  These provisions were written in consultation with the Department of 
Justice attorneys who advocate before the FISA Court. They are 
supported by the Attorney General and the National Director of 
Intelligence. They reflect the balance and compromise that appear 
throughout the USA FREEDOM Act. Amendment No. 1451 would upset this 
balance. It would strike the current provisions providing for the 
appointment of a panel of amicus curiae--the provisions that represent 
a carefully crafted balance--and it would compromise those provisions 
in a way that need not be done because this balance has the support of 
numerous stakeholders, from civil liberties groups to the intelligence 
community, and it would replace this balance, this institution, with an 
ineffective, far less valuable advocate.
  There is no need to water down and undercut and eviscerate the role 
of the independent experts by removing requirements for the court to 
appoint a panel of experts to be on call, for the experts to receive 
briefings on relevant issues, and significantly to provide those 
experts with access to relevant information. Those provisions are 
unnecessary and unwise and, therefore, I oppose strongly amendment No. 
1451 because it does unnecessarily and unwisely weaken the role of 
these experts and amicus curiae.
  Equally important, amendment No. 1451 would limit access and 
significantly restrict the experts in their going to legal precedents, 
petitions, motions or other materials that are crucial to making a 
well-reasoned argument. It would restrict their access unnecessarily 
and unwisely; thereby, endangering those rights and liberties the 
public advocates are there to protect. It would also restrict their 
ability to consult with one another and share insights they may have 
gained from related cases as government attorneys are currently able to 
do.
  By undercutting these essential abilities and authorities, this 
amendment would hamstring any independence, both in reality and in 
perception; thereby, also undercutting the trust and confidence this 
act is designed to bolster and sustain.
  In short, I know many people of good conscience may disagree over the 
best way to reform this law. I accept and I welcome that fact. I 
welcome also my colleagues' recognition that an amicus curiae procedure 
in some form would benefit this court, but I urge my colleagues to 
reject an amendment that would lessen its constructive and beneficial 
impact.
  We have already delayed long enough. This amendment would not only 
weaken the bill, it would exacerbate the delay by sending this bill 
back to the House. We all want to avoid a very potentially troubling 
delay in approving this measure. I have been dismayed by the divisions 
and delays that have prevented us from finally approving the USA 
FREEDOM Act before the existing law expires. We should move now. We 
should act decisively. We should adopt the USA FREEDOM Act without 
amendment No. 1451, which would simply further erode the trust and 
confidence, the legitimacy, and credibility of the Foreign Intelligence 
Surveillance Court.
  I urge my colleagues to join me in voting against this amendment, 
passing the USA FREEDOM Act in its current form, avoiding the delay of 
sending it back to the House and then potentially having it come back 
to the Senate, so we can tell the American people we are protecting the 
strongest, greatest country in the history of the world from some of 
the most pernicious and perilous terrorist forces ever in the world's 
history.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. If the Senator will withhold his request, we 
may have a Member who would like to seek the floor.
  Mr. BLUMENTHAL. I will withhold my request, and I will just add, 
while we are waiting for my colleague to take the floor, that I want to 
join a number of my colleagues and speak on another matter.


                         Remembering Beau Biden

  Mr. President, I join many of my colleagues in our feelings and 
expressing deep sadness on the loss of Beau Biden, one of our Nation's 
greatest public servants, one whom I was privileged to join in serving 
with as attorney general--he as the attorney general of Delaware and I 
of Connecticut.
  I knew Beau Biden well and, in fact, sat next to him at many of our 
meetings of the National Association of Attorneys General. There was no 
one I met as attorney general who was more dedicated to the rule of 
law, to protecting people from threats to public safety, and respecting 
their rights and liberties in doing so.
  His loss is really a loss to our Nation as well as to the Vice 
President's family and my heart and prayers go out to them. I know how 
deeply the Vice President loved Beau Biden and how much, as a dad, his 
death will unspeakably and unimaginably affect him.
  So, again, I want to express, on behalf of Cynthia and myself, our 
thoughts and prayers which are with the Vice President and his family 
at this time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.


   Artifacts to Honor North Dakota Soldiers Who Lost Their Lives in 
                                Vietnam

  Ms. HEITKAMP. Mr. President, since March, I have been speaking on the 
Senate floor about the 198 North Dakotans who died while serving in the 
Vietnam war. But today I want to talk about something a little 
different. I want to talk about projects that were made by the Bismarck 
High School juniors in commemoration of these servicemen who gave the 
ultimate sacrifice in Vietnam.
  Three Bismarck High teachers, Laura Forde, Sara Rinas, and Allison 
Wendle, are working with their history and English class students to 
research the lives and deaths of North Dakota's fallen servicemen in 
Vietnam. I am partnering with these high school students to learn about 
and to honor these men.
  In addition to conducting research, contacting families, and writing 
essays about these North Dakotans who died in Vietnam, the Bismarck 
High students took this information and created artifacts to further 
honor these men. It is their goal to place these artifacts by the 
soldiers' names at the Vietnam Memorial wall when these students come 
to Washington, DC, this fall.

[[Page 7934]]

  Over 150 students worked in groups or individually to create some 
truly amazing artifacts. It was difficult to single out a few to share 
with you today on the Senate floor but know that the artifacts I 
describe today are truly examples of this wonderful project that has 
connected these young students with the stories and the families of the 
young men who gave their lives for our country almost 50 years ago.
  The first artifact I will show you is for John Lundin.
  McKenzie Rittel, Emily Schmid, Brittany Hawkinson, and Shelby 
Wittenberg are Bismarck High School juniors who reached out to John 
Lundin's son and daughter-in-law, Ray and Cheri Lundin. The girls 
learned that John wanted to be a farmer after completing his Army 
service and painted a farm scene on the scoop of a shovel. On the 
shovel's handle, they wrote John's dates of birth and death in purple 
to represent his Purple Heart Medal. Also on the handle, they painted a 
Bronze Star and a Silver Star--medals that John earned while in 
service.
  John's family worked with the students to commemorate John's service. 
They mailed the students soil from the Kansas land where John intended 
to farm and a small John Deere tractor. The students placed the Kansas 
soil in a jar with North Dakota soil and put the tractor on the lid.
  If it works out, John's son and daughter-in-law may try to join the 
students in visiting the Vietnam Veterans Memorial wall in November to 
place these artifacts by John's name.
  Hunter Lauer and Kyra Wetzel paired up to research the life and death 
of Roy Wagner, who was a student at Bismarck High School about 50 years 
before them.
  In high school, Roy was a lineman on the football team and wore No. 
62. Hunter and Kyra decorated a Bismarck High School football jersey 
with Roy's last name and wrote his dates of birth, deployment, and 
death in the numeral ``6'' and the medals received for his service and 
sacrifice in the numeral ``2.'' Hunter and Kyra compared Roy's football 
position as a guard to his Army position on the battlefield protecting 
his comrades and his friends.
  Hoping that his tribute to Navy seaman Mitchell Hansey will last a 
long time, Bismarck High School student Logan Mollman decided to carve 
Mitchell's name into a piece of wood. Learning that Mitchell served on 
the Navy APL 30 barge during his entire tour, Logan hand-carved the 
full APL 30 emblem into the wood and then protected the project with a 
coat of lacquer. The emblem consists of the Stars and Stripes on the 
left, three bars on the right, and an apple in the middle for APL, or 
Auxiliary Personnel Lighter. Logan is looking forward to the placement 
of his project in honor of Mitchell at the Vietnam Veterans Memorial 
wall.
  Ashley Erickson, Kaleb Conitz, and Sam Stewart are the three students 
who researched the life and death of Marine Corps Capt. Ernest 
Bartolina.
  Ernest was flying a Chinook helicopter on a medevac mission when his 
helicopter was shot down and he was killed. To honor him, the students 
placed a small Purple Heart Medal on a model Chinook helicopter. They 
decorated the board that holds the helicopter with music notes, because 
Ernest played the French horn, and with the Marine Corps and Purple 
Foxes emblems to represent that he belonged to the HMM-364 Squadron.
  Kadon Freeman also created an artifact to commemorate the life of 
Ernest Bartolina. Kadon drew Ernest's Chinook medevac helicopter and a 
jungle setting of Vietnam. In the helicopter, he incorporated photos of 
men who served in Vietnam, stating:

       The reason I made this CH-46 collage of soldiers in Vietnam 
     was to represent Ernest Bartolina and the fallen heroes of 
     the war with the medevac which he died in. I think that this 
     is a good representation of him because he volunteered to be 
     in the war.

  Bismarck High School student Shaydee Pretends Eagle and PFC Roger 
Alberts are both from the Spirit Lake Sioux Reservation in North 
Dakota. It is this connection that led Shaydee to research Roger's life 
and decide to make by hand a ``God's eye'' for a lost son of the Sioux 
Tribe. She hand-wove the yarn of her God's eye in red and yellow. She 
hand-beaded ``37E,'' the panel location of Roger's name on the Vietnam 
Veterans Memorial wall, in black and white. These four colors are the 
colors of the medicine wheel--very important colors to the Native 
American culture.
  Let me read what Shaydee said in her own words about honoring Private 
First Class Alberts:

       I decided to make a God's Eye because as Native Americans, 
     we believe that everything belongs to the Creator; the land, 
     the animals, the food we eat, and ourselves. We believe that 
     this life on earth is only temporary. We believe we were put 
     here to grow, love and learn, and then we return home. Our 
     culture has made most Natives artists. Some of the things we 
     do consist of bead work, feather work, quill work, cloth 
     work, buckskin work, painting and dentalium work. All is made 
     by hand, which means whatever we decide to make, we put our 
     mind, heart, and time into. Our elders say, ``always do 
     things with a good heart,'' because the energy and vibes we 
     have at the time stay with whatever we are making, which is 
     why I hope I put my best into the God's Eye.

  Taylor Anderson, Austin Wentz, and Miriah Leier are 11th graders who 
created a large F4D Phantom plane to leave at the Vietnam Veterans 
Memorial wall in honor of Air Force Lt. Col. Wendell Keller.
  The students contacted Wendell's family, who shared mementos and 
photos of Wendell and told them about Wendell's life, the 1969 plane 
crash, and the 2012 identification of his remains. The family even 
mailed the students items recovered from Wendell's crash site, 
including pieces of a zipper and air tube.
  Taylor, Austin, and Miriah built and decorated the plane with images 
of Wendell and the medals he was awarded in recognition of his 
extraordinary service. The students named the plane the Carol II, in 
honor of Wendell's wife.
  Brenna Gilje and Courtney Hirvela learned that CPT Thomas Alderson 
was a multisport athlete and lettered in tennis, basketball, and track 
when he was a student at Grand Forks Central High School.
  Brenna and Courtney contacted the school to obtain the school letters 
and had a dog tag made with Tom's information on it. In their report, 
these girls noted:

       This letter represents Alderson's high school years and it 
     can easily be related to a lot of teenage boys today. The 
     letter with the dog tag shows how quickly he had to grow up 
     and mature in such a short amount of time. As Alderson joined 
     the military, he turned in his letter, along with his 
     childhood, for a dog tag.

  When McKayla Boehm began her project, she looked at different 
soldiers' names to find the right person to research. She noticed one 
of the killed-in-action had the same last name as hers, and she started 
to look into the soldier's family tree and her own family tree. McKayla 
found that Army SGT Richard Boehm was a cousin to her grandfather. 
McKayla decided to draw a family tree to show how she was related to 
Sergeant Boehm. This connection made the project that much more 
meaningful to McKayla. She had no idea she was related to a soldier who 
was killed in action in Vietnam.
  McKayla added some information about Richard by his name on her 
family tree and wrote a note to him, thanking him for his service and 
expressing her desire that he were still with us so she could have 
gotten to know him. This project also emphasized for McKayla the 
importance of appreciating family and friends because you never know 
when the people who are closest to you may be taken away.
  Nicole Holmgren, Tiffani Friesz, Brandi Bieber, and Georgia Marion 
looked for Gerald ``Gerry'' Klein's family members and spoke on the 
phone with Gerry's brother Bob.
  Bob told the students about Gerry's life growing up in rural North 
Dakota, about being the oldest of five kids and working on the family 
farm. In fact, Bob explained to the girls that Gerry made the farm his 
priority, choosing to spend all of his free time there.
  The four students created a farm complete with grass, tractors, 
rocks, and farm animals to represent the place where Gerry felt 
happiest--on the

[[Page 7935]]

farm where he planned to return and make his life with his fiancee 
after serving in the Army.
  Jaycee Walter and Kambri Schaner decorated a fishing hat to 
commemorate Thomas Welker, a staff sergeant who served in Vietnam in 
the Army.
  The students learned that prior to being drafted, Thomas enjoyed 
spending his free time fishing with his young family. On the fishing 
hat, Jaycee and Kambri wrote Thomas' name and dates of birth and death. 
On eight fishing lures they hung from the hat, they wrote the names of 
Thomas' family members and the awards he received during his service to 
our country.
  Bailee McEvers, Teagan McIntyre, Shandi Taix and Maisie Patzner 
filled a fishing tackle box with items that were important to Michael 
Meyhoff who served in the Army during the Vietnam war.
  These four students communicated with Michael's family, who described 
Michael's interest in baseball, rock collecting, hunting, and fishing. 
The students filled the tackle box with a baseball, rocks, shotgun 
shells, and fishing lures to represent his hobbies. They also decorated 
the box with pictures of Michael and the baseball field in Center, ND, 
that is named after him.
  Finally, the final photo I will show you today is of a young man who 
was impacted in a very meaningful way in his research. Zach Bohlin is a 
talented student who carved a piece of wood into the shape of North 
Dakota. Zach added a peace sign, the soldier's name, and then expressed 
his own feelings about the sacrifice made by the Vietnam soldier he 
researched.
  I would like to share the beautiful sentiment expressed by Zach 
through his project at Bismarck High School.

     The empty chair,
     The absence of one voice in the air.
     Emotions take over with fear.
     You're all I can't hear.
     Damn the opinions of the world,
     It's only filled with selfish words.
     Scream and never be heard,
     Keep quiet, carry on Sir.
     Bring with you your heartfelt rhymes,
     From the uncharted waters of your mind.
     Take your wounded skin and fly,
     It takes true love to sacrifice your life.

  This project has meant so much to the families of the soldiers who 
have been researched. This project has meant so much to these young 
students who are connected in a way where, without these three great 
teachers, they would never have been connected to those who were killed 
in action in Vietnam. They would never have appreciated the sacrifice, 
and, in many ways, these soldiers would never be remembered.
  I can't say how proud I am, as their Senator, of the wonderful 
students of Bismarck High School and the great teachers who have taken 
on this project. It has meant so much to me, it has meant so much to 
the families, and I think it has really meant so much to so many of the 
Vietnam veterans of my State who are still with us, who see this period 
of commemoration--as dictated by the President--as an important time to 
heal the wounds of Vietnam.
  The PRESIDING OFFICER. The Senator from Rhode Island.


                       Commending Senator Graham

  Mr. WHITEHOUSE. Mr. President, I understand that the majority leader 
is on his way here to close out the Senate very shortly. I want to take 
1 minute to recognize a significant milestone in the life of one of our 
colleagues here on the floor. That colleague is our friend Senator 
Lindsey Graham, and that milestone is his retirement from the U.S. Air 
Force and Reserve, which he has served for more than 30 years. I think 
that 30 years of service--particularly 30 years of service overlapping 
with the responsibilities of being a U.S. Senator--is something that is 
worth a kind word.
  The quality of Senator Graham's service was impeccable. He has been 
awarded the Bronze Star Medal for his service. He has been recognized 
for his loyalty to the Air Force by being appointed to the U.S. Air 
Force Academy Board of Visitors. Clearly, his contribution to the U.S. 
Air Force has been real. But I think Senator Graham would also be the 
first one to say that he believes the U.S. Air Force made more of a 
contribution to him than he did to the U.S. Air Force. I think that is 
one of the reasons he was such a good U.S. Air Force and Reserve 
officer, and it is also one of the reasons that we have such affection 
for him here in the Senate.
  I have to say that I disagree with Senator Graham about a great 
number of things. He is a very, very conservative Member of the Senate. 
But we get to know one another in this body. I like Senator Graham. I 
respect Senator Graham, and I am pleased to come to the floor today to 
commend Senator Graham for what must be a somewhat emotional milestone 
as he steps down from the uniform that he has now worn for more than 30 
years for our country.
  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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________