[Congressional Record (Bound Edition), Volume 163 (2017), Part 3]
[Senate]
[Pages 4214-4228]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Daniel Coats, of 
Indiana, to be Director of National Intelligence.
  The PRESIDING OFFICER. Under the previous order, the time until 10 
a.m. will be equally divided in the usual form.
  The Senator from North Carolina.
  Mr. BURR. Mr. President, I rise today to support Senator Dan Coats, 
our former colleague and a friend, as the President's nominee to be the 
next Director of National Intelligence. Dan Coats has been asked to 
lead our Nation's intelligence community of over 100,000 individuals 
during, I think, the most profound period of threats and change. Let me 
say to my colleagues, it is a job that Dan Coats is well prepared to 
do.
  After graduating from Wheaton College, Dan served honorably in the 
U.S. Army before serving the State of Indiana as a House Member, as a 
Senator, and for not only Indiana but this country as Ambassador to 
Germany.
  While in the Senate, Dan was engaged and was a valuable member of the 
Senate Intelligence Committee. He dedicated countless hours to 
understanding and overseeing the intelligence community--in essence, 
one of 15 people who certified for 85 others and for the American 
people that we do everything we can to keep America safe but we do it 
within the parameters of the rule of law. He is well versed in the 
operational capabilities and authorities. He understands the threat we 
are facing at home and abroad. He understands that we need to improve 
our ability to collect against our adversaries, and Dan will be a 
forceful advocate for intelligence collection but, again, never 
jeopardizing that line of what is legal and what is not.
  Dan's legislative experience also translates to his understanding and 
his appreciation of the need for transparency with the appropriate 
oversight committees and, more importantly, with the Congress and the 
American people.
  Dan's intellect, his judgment, his honorable service, and his 
commitment to the workforce make him a natural fit as Director of 
National Intelligence. I have absolute trust that he will lead the 
community with integrity, and he will ensure that the intelligence 
enterprise operates lawfully, ethically, and morally.
  So today I rise in this austere body to urge my colleagues to support 
the President's nominee for Director of National Intelligence. We are 
now in March. We have gone from January until March with one of the 
most important posts of this administration unfilled. Congress must act 
quickly, and it is my hope that Members, before the end of this day, 
will make sure we have a Director of National Intelligence in place.
  I urge my colleagues to support this nomination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cotton). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             CLOTURE MOTION

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Daniel Coats, of Indiana, to be Director of National 
     Intelligence.
         Mitch McConnell, Michael B. Enzi, David Perdue, Bob 
           Corker, John Hoeven, Lamar Alexander, Bill Cassidy, 
           John Barrasso, Dan Sullivan, Tim Scott, James Lankford, 
           Tom Cotton, Mike Rounds, James M. Inhofe, Chuck 
           Grassley, Roy Blunt, Richard Burr.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Daniel Coats, of Indiana, to be Director of National 
Intelligence, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Georgia (Mr. Isakson).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 88, nays 11, as follows:

[[Page 4215]]



                       [Rollcall Vote No. 88 Ex.]

                                YEAS--88

     Alexander
     Barrasso
     Bennet
     Blumenthal
     Blunt
     Boozman
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cortez Masto
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Graham
     Grassley
     Hassan
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Johnson
     Kaine
     Kennedy
     King
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Perdue
     Peters
     Portman
     Reed
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Schumer
     Scott
     Shaheen
     Shelby
     Stabenow
     Strange
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Udall
     Van Hollen
     Warner
     Whitehouse
     Wicker
     Young

                                NAYS--11

     Baldwin
     Booker
     Duckworth
     Gillibrand
     Harris
     Markey
     Merkley
     Paul
     Sanders
     Warren
     Wyden

                             NOT VOTING--1

       
     Isakson
       
  The PRESIDING OFFICER. On this vote, the yeas are 88, the nays are 
11.
  The motion is agreed to.
  The Senator from Virginia.
  Mr. WARNER. Mr. President, first of all, I thank my friend the 
Senator from Texas for giving me the courtesy of letting me get in my 
comments about the nomination of former Senator Dan Coats to serve as 
the fifth Director of National Intelligence, a position recommended by 
the 9/11 Commission and established by the Intelligence Reform and 
Terrorism Prevention Act of 2004.
  Dan Coats is a friend of mine and many in this body. He represented 
Indiana in both the U.S. House and for separate terms in the U.S. 
Senate. He was also U.S. Ambassador to Germany from 2001 to 2005. As 
mentioned, for 6 years I served with the nominee on the Senate Select 
Committee on Intelligence. I have always found Dan to be fairminded and 
know him to be an advocate for strong oversight of the intelligence 
community. He believes in the need for intelligence that is timely, 
relevant, and free of political interference.
  During my private meeting with him, as well as during his 
confirmation hearing, Senator Coats committed to find and follow the 
truth, regardless of where it leads, agreeing that his primary job will 
be ``to speak truth to power,'' to the President, to policy and 
military leaders, and to Members of Congress. I know these are traits 
he will continue to employ if confirmed as the next Director of 
National Intelligence.
  During James Clapper's most recent tenure as the DNI, in 6 years he 
put in place some fundamental changes in how the Intelligence community 
operates. He reoriented the Office of the DNI to focus on intelligence 
integration with an emphasis on mission. He often was willing to roll 
up his sleeves and take on the hard challenges of trying to get the 
intel community to operate on the same IT backbone systems. If 
confirmed, I have encouraged Senator Coats to build upon former 
Director Clapper's efforts, which are critical to ensuring that 
policymakers, warfighters, law enforcement, and national security 
officers receive intelligence products that are timely, relevant, and 
objective.
  Of course, if confirmed, Director Coats will take on the job as the 
Nation's chief intelligence officer, leading the intelligence community 
during a very difficult time because unfortunately this President, 
along with his closest advisers, has repeatedly and unfairly disparaged 
the professionalism and actions of the Nation's intelligence 
professionals. These are men and women who maintain the highest 
standards of professionalism and integrity. They anonymously sacrifice 
for the country, often in the face of grave personal danger.
  As DNI, Senator Coats is committed to defending the values and 
integrity of the men and women of the intelligence community, even when 
the White House may not like to hear it.
  Another challenge Senator Coats will face on his first day on the job 
is to effectively support the Senate Intelligence Committee's ongoing 
investigation into Russian interference in the 2016 Presidential 
election. Last week, I went to CIA headquarters in Langley, along with 
a number of other Members of the committee, to review the beginnings of 
the raw intelligence that led the community to conclude that Russia 
massively interfered in our last Presidential election. Both in public 
and in private, Senator Coats has promised he will support the 
committee's investigation to the fullest. We will hold him to that 
commitment.
  On this topic, I want to reiterate on the Senate floor what I have 
already said numerous times. This investigation is not about being a 
Democrat or Republican nor about relitigating the 2016 election. The 
investigation is about upholding the core values and sanctity of 
democracy that all Americans hold dear. It is also about holding Russia 
accountable for their improper interference in our elections and arming 
our allies--one of which has an election today--with information about 
the means employed by Russia in our elections so they can use that 
information to protect the integrity of their own electoral process.
  We will work to ensure that this critical investigation is done 
right, done in a bipartisan manner, free of any political interference, 
and as the chairman and I have both reiterated, that it follows the 
facts wherever they may lead.
  I have every reason to believe Senator Coats will be forthcoming in 
supporting this investigation. If at any point it becomes clear to me 
that the Senate Intelligence Committee is unable to keep up these 
commitments, I am prepared to support another process.
  Finally, let me acknowledge two other things.
  During Senator Coats' confirmation hearing, he was asked about his 
role on the National Security Council, including the Principals 
Committee. He assured us that he will be attending these meetings and 
participating in them despite the confusion created by an Executive 
order that appeared to disinvite the DNI from these meetings. If he is 
not included in these meetings, I will expect to know about it and the 
reason why.
  Senator Coats has also committed to me personally and to the 
committee that he will not support the return of waterboarding and 
other so-called enhanced interrogation practices, nor will he support 
reestablishing secret detention sites into the activities of the 
intelligence community. He reassured the committee that he will follow 
the law as it now stands and that he will not advocate for changes to 
the law or recommend a reinterpretation of the law based on any 
personal beliefs. The law is clear: No interrogation techniques outside 
the Army Field Manual are allowed.
  Finally, Senator Coats has also reassured me and all of the members 
of the committee that if confirmed, he will always present to the 
President, to his Cabinet advisers, and to those of us in Congress the 
unvarnished facts as represented by the best judgments of the 
intelligence community whether or not that analysis is in agreement 
with the views of the President, with ours in Congress, or with anyone 
else's who might receive them.
  For these reasons, I support the movement. I was glad to see 88 
Members of this body support Dan's movement forward. I believe he will 
be a great fifth Director of National Intelligence.
  I thank my friend the Senator from Texas for giving me time.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I thank my friend, the Senator from 
Virginia, who is the vice chair of the Senate Select Committee on 
Intelligence, for his remarks.
  I, too, support the nomination of Dan Coats to serve as the next 
Director of National Intelligence and succeed James Clapper, who has 
been in the intelligence business for 50-plus years. He has big shoes 
to fill, but I have every confidence Dan Coats can do that.
  One of the things I hope he looks at is that post-9/11, when the 
Office of the

[[Page 4216]]

Director of National Intelligence was created, we basically created 
another layer in the intelligence community. As the Presiding Officer 
and other Members know, the DNI--the Office of the Director of National 
Intelligence--has grown by leaps and bounds. I just hope he takes a 
good, hard look at the layers we have created, perhaps at the 
duplicative functions that do not necessarily make our intelligence any 
better but that do create more problems in managing what is a very 
important office to our national security and certainly to the 
intelligence community.


                             Sunshine Week

  Mr. President, on another matter, in spite of the snow yesterday, I 
recognize the fact that this is Sunshine Week. Sunshine Week is a 
movement that was created to highlight the need for more transparent 
and open government. Justice Brandeis is also often quoted when one 
talks about transparency in government and its importance to a 
functioning democracy when he said that sunlight is the best 
disinfectant.
  As a conservative, I would much rather have people change their 
behavior in their knowing that their actions are going to be public 
rather than to pass new laws and new regulations. To me, knowing that 
the public is going to be aware of what one is doing causes people, 
typically, to be on their best behavior. I think that is the reason I 
support Justice Brandeis' comment that sunlight is the best 
disinfectant. I believe that is true.
  I have done my best to keep that sentiment in mind to create 
legislation that presses our democracy toward more openness in the 
Federal Government, not less. That is because I believe our country 
grows stronger when operating under the principle that an open 
government is the basic requirement for a healthy democracy. Of course, 
when voters know and understand what their government is doing, they 
are in the best position to change its direction if they disagree with 
it or to reaffirm that direction by casting their votes as informed 
members of the electorate.
  Democracy can only work when the public knows what government is 
doing and can hold it accountable, so I am glad that at this time of 
year, we can look back at the successful efforts we have made to 
promote transparency while looking ahead to do more.
  Last Congress, I introduced the Freedom of Information Act 
Improvement Act. It is a law that strengthens the existing Freedom of 
Information Act, which is the country's chief open government law, by 
requiring Federal agencies to operate under a presumption of openness 
when considering whether to release government information in their 
custody.
  We passed it last summer, and President Obama signed it into law. 
This important new law accomplishes some of the most sweeping and 
meaningful reforms in its history to the Freedom of Information Act, 
and it is already making a direct impact by helping the public access 
more information.
  Because of the Freedom of Information Act Improvement Act, last 
October, the CIA released a portion of its official history of the Bay 
of Pigs invasion, which has been kept classified for decades. This is a 
critical part of our Nation's history that is worth knowing, and I 
believe it is no longer necessary to keep it under wraps in order to 
protect America's national security.
  This serves as an example of what we are trying to accomplish with 
this law and others like it so as to build upon the idea the Founding 
Fathers recognized hundreds of years ago; that a truly democratic 
system depends on an informed citizenry to hold its leaders 
accountable. That is an idea everyone in this Chamber, on both sides of 
the aisle, can agree upon.
  I am thankful to the senior Senator from Vermont, Mr. Leahy, for 
working with me on the Freedom of Information Act Improvement Act and 
making it a priority. As a matter of fact, Senator Leahy has been my 
partner on a number of our efforts in this important area over the 
years that we have both been in the Senate.
  I also appreciate Chairman Grassley's leadership, the chairman of the 
Senate Judiciary Committee, for stewarding this bill through the 
committee, and I appreciate Leader McConnell for making sure this was a 
priority for this Chamber.
  In looking ahead, I will continue working with Chairman Grassley to 
make sure the Federal agencies are implementing this law in a timely 
manner, and I look forward to doing more to strengthen greater 
government transparency measures in the future.


                       Nomination of Neil Gorsuch

  Finally, Mr. President, next week, the Judiciary Committee will take 
up the nomination of Neil Gorsuch for the U.S. Supreme Court so he may 
fill the seat that was vacated by the death of Justice Scalia. That 
process, of course, begins with hearings to consider his qualifications 
and his credentials, but heading into next week, we already know a lot 
about his record.
  He has been praised by people across the political spectrum--from 
liberals to conservatives--as a highly qualified and exceptional judge 
with impeccable integrity. He served with great distinction on the 
Tenth Circuit Court of Appeals, based out of Denver, for the last 10 
years, after having been confirmed by this Chamber unanimously. His 
hometown newspaper, the Denver Post, encouraged the President to 
nominate Judge Gorsuch before his nomination was even announced. This, 
of course, was the same newspaper that endorsed Hillary Clinton for 
President. Clearly, Judge Gorsuch has won the respect of those across 
the political spectrum and on both sides of the aisle. Last week, the 
American Bar Association announced its unanimous decision to grant 
Judge Gorsuch the highest rating available; that of ``well qualified'' 
as a nominee to serve on the Supreme Court of the United States.
  I should point out that both the minority leader and former chairman 
of the Judiciary Committee--the senior Senator from Vermont--have 
called the American Bar Association's rating system the ``gold 
standard'' when it comes to assessing the qualifications of judicial 
nominees.
  Judge Gorsuch will also bring decades of experience on the bench, as 
I mentioned a moment ago. He has also served in private practice, as an 
attorney with the Justice Department, and, of course, as a Federal 
judge.
  It is time to move forward with the President's nominee to fill the 
seat that was left open by the death of the late Justice Scalia, and I 
believe Judge Gorsuch is just the man to fill it. I look forward to 
hearing from him next week as we consider his nomination to this 
important position.
  I express my gratitude to Chairman Grassley and the ranking member, 
Senator Feinstein, for their efforts thus far in putting these hearings 
together, and I look forward to working with the rest of my colleagues 
on the Judiciary Committee to consider the nomination of Judge Gorsuch, 
starting next Monday, March 20.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I know both sides are working on trying to 
get an arrangement for the vote.
  Mr. President, I also want to tell my colleague from Texas that I 
listened very carefully to his remarks with respect to transparency in 
government. He has had a long interest in the Freedom of Information 
Act and the like. I noted that he made a comment about the Bay of Pigs, 
about which information is still classified, and I know something about 
this because my dad wrote a book about the subject. My hope is that my 
friend from Texas and his interest in transparency will also extend to 
some other areas.
  As I indicated, I am very familiar with my colleague's record with 
respect to Freedom of Information Act issues, which really is 
impressive. I hope to get him involved in some other areas of 
transparency--perhaps in campaign finance reform and the issue I am 
going to be speaking about today, that of getting the American people 
the information--after 6 years of stonewalling--on how many lawful 
Americans are getting swept up in what will be Dan Coats' top priority, 
that of the reauthorization of the Foreign Intelligence Surveillance 
Act.
  I want my colleague to know, in my being very much aware of his good

[[Page 4217]]

work on the Freedom of Information Act issues, that we are going to try 
and conscript them into some other transparency issues as well.
  Mr. CORNYN. Mr. President, may I ask the Senator to yield to consider 
a couple of brief consent requests?
  Mr. WYDEN. Mr. President, of course.
  I will tell my colleague, as to what the majority and the minority 
have agreed to, as soon as those consent requests are ready, then we 
will take a time out from my remarks and make sure that matter is 
resolved.
  As we wait for the matter Senator Cornyn has mentioned, I will begin 
the discussion of the nomination of Dan Coats to be the Director of 
National Intelligence.
  I have known Senator Coats for many years. He has been the lead 
cosponsor of the bipartisan Federal income tax reform proposal, which 
has been a special priority of mine. I do not know of a single U.S. 
Senator who does not like Senator Coats. He is honest, a straight 
shooter, and gracious. My remarks are not about my personal affection 
for Senator Coats.
  The reason I am voting against the nomination is due to the matter I 
just touched upon with the Senator from Texas, which is, for 6 years, 
it has been impossible to get the intelligence community to provide the 
Congress and the American people information that is absolutely 
critical to the debate on reauthorizing the Foreign Intelligence 
Surveillance Act. For 6 long years, Democrats and Republicans, both in 
this body and in the other body, have been trying to get this 
information.
  So this morning, given the fact that this legislation would be the 
top priority of Senator Coats, as he said in the Intelligence 
Committee, I want the Senate and the country to understand why this 
issue is so important.
  First, I am happy to yield to my friend from Texas.
  The PRESIDING OFFICER. The Senator from Texas.


                           Order of Procedure

  Mr. CORNYN. Mr. President, I thank my colleague for yielding for a 
brief UC request, as I think this would be in the best interests of the 
entire Senate.
  I ask unanimous consent that notwithstanding rule XXII, the cloture 
motion on Executive Calendar No. 19, the McMaster nomination, be 
withdrawn; that the time until 1:45 p.m. be equally divided in the 
usual form on the Coats and McMaster nominations concurrently; and that 
at 1:45 p.m. the Senate vote on the Coats nomination, followed by a 
vote on the McMaster nomination; and that, if confirmed, the President 
be immediately notified of the Senate's actions, with no intervening 
action or debate. I further ask that 1 hour of minority debate time be 
reserved for Senator Wyden.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I also ask unanimous consent that 
following morning business on Tuesday, March 21, the Senate proceed to 
executive session for the en bloc consideration of the following 
nominations: Executive Calendar Nos. 21 and 22. I ask unanimous consent 
that the time until 12 noon be equally divided and that following the 
use or yielding back of time, the Senate vote on the nominations, en 
bloc, with no intervening action or debate; that, if confirmed, the 
motions to reconsider be considered made and laid upon the table, en 
bloc, and the President be immediately notified of the Senate's action; 
that no further motions be in order; and that any statements relating 
to the nominations be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I thank my friend and colleague for 
yielding for those unanimous consent requests.
  Mr. WYDEN. I thank my colleague.
  Now, as we consider the nomination of Senator Coats, and recognize 
that his top priority, by his admission, would be the reauthorization 
of the Foreign Intelligence Surveillance Act--particularly section 
702--I want to begin this discussion by saying that it is because the 
intelligence community has stonewalled Democrats and Republicans in 
both this body and in the other body for 6 years on the information 
that we need to do good oversight that I have come to the floor to 
outline what I think the central issue is all about.
  I am going to begin my remarks by way of saying that, at a time when 
Americans are demanding policies that give them more security and more 
liberty, increasingly, we are seeing policies come from both this body 
and the other body that provide less of both.
  A good example would be weakening strong encryption. Weakening strong 
encryption is bad from a security standpoint, and it is bad from a 
liberty standpoint. When government creates policies that give the 
American people less of both--less security and less liberty--
obviously, the American people are not going to react well.
  My view is that when the government--particularly intelligence 
agencies--don't level with the American people about large-scale 
surveillance of law-abiding Americans, our people are justifiably 
angry. When the government tries to keep this information secret--as I 
have pointed out on this floor before--in America, the truth always 
comes out. Leveling with the American people is the only way for 
agencies to have the credibility and the legitimacy to effectively do 
their jobs. They have critically important jobs in keeping our people 
safe from threats.
  Now, with respect to Senator Coats, at his confirmation hearing, 
since he said the Foreign Intelligence Surveillance Act would be his 
top priority, I asked our former colleague how many Americans--
innocent, law-abiding Americans--have actually been swept up in the 
surveillance program known as section 702 of the Foreign Intelligence 
Surveillance Act. Under section 702, the government conducts 
warrantless surveillance of foreigners who are reasonably believed to 
be overseas. It does this work by compelling telecommunications 
companies and internet service providers to provide the content, phone 
calls, and emails, and other individual communications.
  Now, there are several different ways this happens, and I will get to 
that in the course of these remarks. What we are talking about--what I 
want people to understand--is that this goes to the content of 
communications. This is not about metadata collection. Congress, as the 
Senate knows, reformed that in the USA FREEDOM Act. This is 
surveillance without any warrants, and once the FISA Court signs off on 
the overall program, the details are up to the government.
  Now, this was not always the case. For decades, individual warrants 
were required when the government needed the assistance of the 
country's telecommunications firms. Then the Bush administration 
created a secret, but legal, warrantless wiretapping program.
  After the program was revealed, the government then went to the 
Foreign Intelligence Surveillance Act Court to get approval. But when 
the government ran into some trouble with the court, the Bush 
administration argued that the Congress should create the current 
program. It was first passed in 2007 under the name Protect America 
Act. That became the Foreign Intelligence Surveillance Act Amendments 
Act of 2008.
  Now, fortunately, the Congress included a sunset provision, which is 
why it was up for reauthorization in 2012, and that is why it is up for 
reauthorization this year. This year it is Senator Coats' top priority, 
if confirmed. Whoever is the head of the intelligence community will be 
the point person for this legislation.
  I want it understood that the reason that I am going through this 
background is that I believe the American people deserve a fully 
informed debate about the Foreign Intelligence Surveillance Act 
reauthorization. You cannot have that debate--you cannot ensure that 
the American people have security and liberty--unless you know the 
impact of section 702 of that bill on the constitutional rights of law-
abiding Americans.
  So for 6 years, in this body, Democrats and Republicans--and in the 
other body, Democrats and Republicans--have been asking the same 
question: How many law-abiding Americans are having their 
communications

[[Page 4218]]

swept up in all of this collection? Without even an estimate of this 
number, I don't think it is possible to judge what section 702 means 
for the core liberties of law-abiding Americans. Without this 
information, the Congress can't make an informed decision about whether 
to reauthorize section 702 or what kind of reforms might be necessary 
to ensure the protection of the individual liberties of innocent 
Americans.
  At Senator Coats' nomination hearing before the Senate Intelligence 
Committee, I asked Senator Coats whether he would commit to providing 
Congress and the public with this information. I will say, because of 
my respect for Senator Coats and our longtime cooperation on issues 
like tax reform and a variety of others, I hoped that Senator Coats 
would be the one--after 6 years of struggling to get this information--
to make a commitment to deliver it to the Senate Intelligence Committee 
before work on the reauthorization began. Instead, Senator Coats said: 
``I will do everything I can to work with Admiral Rogers at the NSA to 
get you that number.''
  If confirmed, I hope that happens. But after asking for the number of 
law-abiding Americans who get swept up in these searches for years, and 
getting stonewalled by the executive branch, hoping to get the 
information we need to do real oversight is just not good enough.
  The problem--the lack of information on the impact of this law on the 
privacy of Americans--goes all the way back to the origins of the 
authority. In December of 2007, the Bush administration, in its 
statement of administration policy on the FISA Amendments Act, stated 
that it would likely be impossible to count the number of people 
located in the United States as communications were reviewed by the 
government. In April of 2011, our former colleague Senator Mark Udall 
and I then asked the Director of National Intelligence, James Clapper, 
for an estimate. In July of that year, the Director wrote back and 
said: ``It is not reasonably possible to identify the number of people 
located in the United States whose communications may have been 
reviewed under the authority of the Foreign Intelligence Surveillance 
Act.''
  He suggested reviewing the classified number of disseminated 
intelligence reports containing a reference to a U.S. person, but that 
is very different than the number of Americans whose communications 
have been collected in the first place. And that is what this is all 
about: How many law-abiding Americans--innocent, law-abiding 
Americans--are getting swept up in these searches? It will be an 
increasingly important issue as the nature of telecommunications 
companies continues to change, because it is now a field that is 
globally interconnected. We don't have telecommunications systems just 
stopping at national borders. So getting the number of Americans whose 
communications have been collected in the first place is the 
prerequisite to doing real oversight on this law and doing our job, at 
a time when it is being reauthorized and the American people want both 
security and liberty and understand that the two are not mutually 
exclusive.
  So Director Clapper then suggested reviewing the classified number of 
targets that were later determined to be located in the United States. 
But the question has never been about the targets of 702, although the 
mistaken targeting of Americans and the people in our country is 
another serious question. The question that Democrats and Republicans 
have been asking is about how many Americans are being swept up by a 
program that, according to the law, is supposed to only target 
foreigners overseas.
  So let me repeat that. That is what the law says. The Foreign 
Intelligence Surveillance Act says that the targets are supposed to be 
foreigners overseas, and Democrats and Republicans want to know how 
many law-abiding Americans, who might reside in Alaska or Oregon or 
anywhere else, are getting swept up in these searches.
  (Mr. SULLIVAN assumed the Chair.)
  So this bipartisan coalition has kept asking. In July of 2012, 
anticipating the first reauthorization of section 702 of the Foreign 
Intelligence Surveillance Act, I and 11 other Senators from both 
parties wrote to Director Clapper. This bipartisan group wrote:

       We understand that it might not be possible for the 
     intelligence community to calculate this number with 
     precision, but it is difficult for us to accept the assertion 
     that it is not possible to come up with even a rough estimate 
     of this number. If generating a precise estimate would 
     require an inordinate amount of labor, we would be willing to 
     accept an imprecise one.

  We asked about imprecise estimates, just a ballpark: How many law-
abiding Americans are getting swept up in these searches that the law 
says are designed to target foreigners?
  We asked about orders of magnitude: Is the number closer to a hundred 
or a hundred thousand or a hundred million?
  We still got no answer, and section 702 was reauthorized without this 
necessary information. So last year, looking at the prospect of the law 
coming up, there was a renewed effort to find out how many law-abiding 
Americans are getting swept up in these searches of foreigners.
  In April 2016, a bipartisan letter from members of the House 
Judiciary Committee asked the Director of National Intelligence for a 
public estimate of the number of communications or transactions 
involving U.S. persons collected under section 702 on an annual basis. 
This letter, coming from the House--Democrats and Republicans--again 
asked for a rough estimate. This bipartisan group suggested working 
with Director Clapper to determine the methodology to get this 
estimate. In December, there were hints in the news media that 
something might be forthcoming. But now, here we are, with a new 
administration, considering the nomination of the next head of the 
intelligence community, who has said that reauthorizing section 702 is 
his top legislative priority, and there is no answer in sight to the 
question Democrats and Republicans have been asking for over 6 years: 
How many innocent, law-abiding Americans are getting swept up in these 
searches under a law that targets foreigners overseas?
  Having described this history, I want to explain why this issue is so 
important, starting with the many ways in which innocent Americans can 
be swept up in section 702 surveillance.
  The first are targeting mistakes in which, contrary to the law, the 
target turns out to be an American or someone in the United States. The 
full impact of these mistakes on law-abiding Americans is not readily 
apparent. The most recent public report on section 702 noted that there 
were compliance incidents involving surveillance of foreigners in the 
United States and surveillance of Americans. This is in violation of 
the law, and it happens.
  The second way in which Americans can be swept up in section 702 
collection is when they communicate with an overseas target. This is 
usually called incidental collection and is often mischaracterized. I 
have heard many times that the program is intended to find out when 
Americans are communicating with ``bad guys''--and I want it 
understood, I am not interested in some kind of ``bad guys caucus.'' I 
know of no Senator who is not interested in protecting our country from 
those kinds of threats. If a known terrorist overseas is communicating 
with someone in the United States, we ought to know about it. But 
section 702 is not just a counterterrorism program. The statute 
requires the collection be conducted ``to acquire foreign intelligence 
information.'' As implemented, the standard for targeting individuals 
under the program is that the government has reason to believe those 
persons possess, are expected to receive, or are likely to communicate 
foreign intelligence information. Obviously, that is broad. It doesn't 
even require that a target be suspected of wrongdoing. So if someone 
tells you that your communications will be collected only if you are 
talking to al-Qaida or ISIS, that is just factually wrong.
  It is also important to note that the government is prohibited from 
collecting communications only when the sender of an email and everyone 
receiving that email are in the United

[[Page 4219]]

States. So an American in the United States could send an email to 
another American in the United States, but if the email also goes to an 
overseas target, it is going to be collected.
  That then brings us to the different kinds of collection under 
section 702 and how they affect the liberties of our people in 
different ways. In one form of collection known as PRISM, the 
government orders an internet service provider to provide the 
government with messages to and from a specific email address. Then 
there is something known as upstream collection, which is when the 
communications are collected off the telecommunications and internet 
backbones. In other words, phone calls and email messages are collected 
in transit. This kind of collection raises a number of other reasons to 
be concerned about how many law-abiding Americans are getting swept up. 
For one, it is through upstream collection that the government can 
collect emails that are neither to nor from a target. The email merely 
has to be about a target, meaning, for example, it includes a target's 
email address in the content. In other words, the government can 
collect emails to and from Americans, none of whom are of any interest 
to the government whatsoever, so long as the target's email address is 
in the content of the email. The law requires only that one of the 
parties to the communication, who, again, could be another American, is 
overseas, and even that requirement is harder for the government to 
meet in practice.
  The implications here ought to be pretty obvious. You don't even have 
to be communicating with one of the government's targets to be swept up 
in Foreign Intelligence Surveillance Act collection. You don't even 
have to be communicating with a foreigner. You or somebody emailing you 
just needs to reference a target's email address.
  I have now mentioned that this target is not necessarily a terrorist 
because the law allows for surveillance ``to acquire foreign 
intelligence information.'' That has been interpreted to allow the 
targeting of individuals who the government has reason to believe 
possess, are expected to receive, or are likely to communicate foreign 
intelligence information. It is a broad standard, and the government 
could then collect the communications of all kinds of foreigners around 
the world. Think about how easy it would be for an American business 
leader to be in contact with the broad set of potential targets of this 
program. Consider how easy it would be for Americans, communicating 
with other Americans, to forward the emails of these people. All of 
this could be collected by the government.
  The upstream collection also includes the collection of what are 
called multicommunications transactions. This is when the NSA collects 
an email that is to, from, or about a target, but that email is 
embedded among multiple other communications that are not. These 
communications may have nothing to do with the target, but the 
government just kind of, sort of ends up with them--and some of them 
are sent and received entirely within the United States.
  These are the ways in which law abiding Americans--innocent, law-
abiding Americans who have done absolutely nothing wrong, both overseas 
and in the United States--can have their communications collected under 
the Foreign Intelligence Surveillance Act. These are law-abiding 
Americans, innocent Americans, not necessarily suspected of anything, 
and it is their privacy and their constitutional rights that have 
caused Democrats and Republicans in this body and in the other body to 
seek the actual numbers of how many law-abiding Americans are getting 
swept up in these searches that are supposed to target foreigners 
overseas.
  The reason this is important is that the program is getting bigger 
and bigger. The exact numbers are classified, but the government's 
public reporting confirms steady increases in collection. At some 
point, the size of the program and the extent to which Americans' 
communications are being collected raises obvious concerns about our 
Fourth Amendment. The question is not if the program raises 
constitutional concerns, but when. And that gets to the heart of what 
our bipartisan coalition has been concerned about: If it is not 
possible for the Senate to know as part of reauthorizing this law how 
many Americans are being swept up by this program, we cannot determine 
whether the government has crossed a constitutional line.
  The Privacy and Civil Liberties Oversight Board, an agency the 
Congress has tasked to look at these issues, has raised the very same 
concerns I am outlining this morning. In the 2014 report by the Board--
the nonpartisan organization tasked by the Congress--concluded that the 
lack of information about the collection of the communications of law-
abiding Americans' communications under section 702 ``hampers attempts 
to gauge whether the program appropriately balances national security 
interests with the privacy of U.S. persons.''
  They went on to say:

       The program [is] close to the line of constitutional 
     reasonableness. At the very least, too much expansion in the 
     collection of U.S. persons' communications or the uses to 
     which those communications are put may push the program over 
     the line.

  They recommended exactly what our bipartisan coalition has been 
calling for--that the government provide to the Congress and, to the 
extent consistent with national security, that the public and the 
Congress get data on the collection of these communications of law-
abiding Americans.
  The most frequently heard argument against what our bipartisan group 
of House and Senate Members has been calling for is that, whatever 
number of communications are being collected on law-abiding Americans, 
it is minimized, which implies that information about Americans is 
hidden.
  This is a particularly important issue. I have heard my colleagues on 
the other side say frequently: Well, if law-abiding Americans are 
having their communications swept up, we shouldn't get all concerned 
about that because this array of Americans' communications is being 
minimized. Somehow that means it is not getting out; it is being 
hidden. That is not necessarily what happens. To begin with, all that 
collection does not stay at the National Security Agency. All the 
emails collected through the PRISM component of section 702 go to 
several other agencies, including the CIA and the FBI. Then we have 
those three agencies, in particular, authorized to conduct searches 
through all the data for communications that are to, from, or about 
Americans: Look for an American's name, telephone number, email 
address, even a key word or phrase. They can do that without any 
warrant. There doesn't have to be even a suspicion--even a suspicion--
that an American is engaged in any kind of wrongdoing. The FBI's 
authorities are even broader. The FBI can conduct searches for 
communications that are to, from, or about an American to seek evidence 
of a crime. Unlike the National Security Agency and the Central 
Intelligence Agency, the FBI doesn't even report how many searches for 
Americans it is conducting. Moreover, neither the FBI nor the CIA 
reports on the number of searches for Americans that it conducts using 
metadata collected under section 702.
  The authority to conduct searches for Americans' communications in 
section 702 data is new. Before 2011, the FISA Court prohibited queries 
for U.S. persons. I am going to repeat that. Under the Bush 
administration and in the first 2 years of the Obama administration, it 
was not possible to conduct these backdoor, warrantless searches of 
law-abiding Americans. Then the Obama administration sought to change 
the rules and obtained authority to conduct them.
  In April 2014, the Director of National Intelligence's response to 
questions from me and Senator Mark Udall publicly acknowledged these 
warrantless searches. By June the House voted overwhelmingly to 
prohibit them. That prohibition didn't become law, but I can tell you 
that it is sure going to be considered in the context of this 
reauthorization. The House voted overwhelmingly to prohibit these 
warrantless searches.

[[Page 4220]]

  So the question really is this: What exactly is the privacy impact of 
these warrantless searches for Americans? In 2014, I managed to extract 
from the intelligence community some, but not all, necessary 
information about how many Americans had been subject of the searches. 
That was a step forward, but what the data doesn't tell us is who the 
subjects of these searches are. More to the point, it doesn't tell us 
how many Americans are potentially the subject of these searches. If 
the number is small, the potential for abuse, obviously, would be 
smaller. If the number is large, the potential for abuse is much 
greater. Without an understanding of the size of the pool from which 
the government can pull the communications of law-abiding Americans, 
there is just no way of knowing how easy it would be for the government 
to use this law as a means to read the emails of a political opponent, 
a business leader, a journalist, or an activist.
  I now want to turn to the ultimate form of abuse, and that is 
something called reverse targeting. It is prohibited by law and defined 
as collection ``if the purpose of the acquisition is to target a 
particular, known person reasonably believed to be in the United 
States.'' This prohibition also applies to U.S. persons. The question, 
though, is how this is defined and how the public can be assured it is 
not happening.
  If you look at the language, you can see why there has been 
bipartisan concern. The collection is only prohibited if the purpose is 
to get the communications of Americans. The question obviously has 
risen: What if getting the Americans' communications is only one of the 
purposes of collecting on an overseas target? What is actually 
acceptable here?
  This issue was concerning in 2008, when the Foreign Intelligence 
Surveillance Act Amendments Act passed with a prohibition on reverse 
targeting. But that was before the country knew about the collection of 
emails that are only about a foreign target and that could be to and 
from Americans. That was before the Obama administration sought and 
obtained authority to conduct warrantless searches for communications 
to, from, and about Americans out of section 702 PRISM collection.
  That makes an important point to me. This bipartisan coalition--of 
which I have been a part--has fought back against executive branch 
overreach, whether it is a Democratic administration or a Republican 
administration. I cited the fact that President Obama brought back 
something with the great potential for abuse and that President Bush 
said he wanted no part of. As we look at these issues, it is important 
to understand exactly what the scope of the problem is. Each of the 
agencies authorized to conduct these warrantless searches--the NSA, 
FBI, CIA--are also authorized to identify the overseas targets of 
section 702. The agencies that have developed an interest in Americans' 
communications, which are actually looking for these communications, 
are the same agencies that are in a position to encourage ongoing 
collection of those communications by targeting the overseas party.
  I believe our bipartisan group believes that there is very 
substantial potential for abuse. Because of these decisions taking 
place in the executive branch without any judicial oversight, it is 
possible that no one would ever know.
  To quote the Privacy and Civil Liberties Oversight Board: ``Since the 
enactment of the FISA Amendments Act of 2008, the extent to which the 
government acquires the communications of U.S. persons under Section 
702 has been one of the biggest open questions about the program, and a 
continuing source of public concern.'' The Board noted that the 
executive branch has responded with any number of excuses for why it 
couldn't provide the number of how many innocent law-abiding Americans 
get swept up in these searches. One excuse has been the size of the 
program. But as Members--Democrats and Republicans--have said 
repeatedly, an estimate, perhaps based on a sample, is sufficient. 
Nobody is dictating how this be done.
  Another excuse has been that determining whether individuals whose 
communications have been collected are American would itself be 
invasive of privacy. Now this is something of a head-scratcher. I will 
just say that, as to the value of knowing how many law-abiding 
Americans get swept up in these searches, privacy advocates have stated 
that this far-fetched theory, this far-fetched excuse for not 
furnishing it, doesn't add up in terms of the benefit of finding how 
many Americans are swept up in these warrantless searches.
  The government is genuinely concerned about the privacy implications 
of calculating the number. I and many of my colleagues, both Democrats 
and Republicans, have been willing--and we renewed this in the last few 
weeks--to have a discussion about the methodology under consideration.
  In the months ahead, the Senate is going to be debating a number of 
issues relating to this topic, such as U.S. person searches, reverse 
targeting, and the collection of communications that are just about a 
target. The Senate is going to discuss how to strengthen oversight by 
the Foreign Intelligence Surveillance Court, the Congress, and the 
privacy board. The Director of National Intelligence will be right in 
the center of the debate.
  There is more information that the American people need. There is 
more information that this body needs in order to carry out its 
responsibility to do real oversight here. The center of these 
discussions about the reauthorization of the Foreign Intelligence 
Surveillance Act involves one question: How many innocent, law-abiding 
Americans have been swept up in this program that has been written and 
developed to target foreigners overseas? Congress's judgment about the 
impact of section 702 depends on getting this number. An assessment of 
the program's constitutionality rests on the understanding of the 
impact it has on Americans. A full grasp of the implications of the 
warrantless searches of Americans requires knowing how many Americans' 
communications are being searched through. Countless questions related 
to the reauthorization of the program all require that the public have 
this information.
  I am just going to close by way of saying what those questions are 
because if you want to do real oversight over a critically important 
program, you have to have the information to respond to these 
questions. The questions are these: Should there be safeguards against 
reverse targeting? Should Congress legislate on ``upstream'' 
collections and the collection of communications about targets, which 
raises unique concerns about the collection of the communications of 
law-abiding Americans? Are the rules related to the dissemination, use, 
and retention of these communications adequate? Should there be limits 
on the use of these communications by the FBI for non-intelligence 
purposes?
  Just think about that one for a minute. What does it mean to people 
in our part of the world where people feel that liberty and security 
are not mutually exclusive, but they are going to insist on both? What 
does it mean to them on the question of whether there ought to be 
limits on the use of this information by the FBI for non-intelligence 
purposes? That is exactly the kind of question that people are going to 
ask.
  I am heading home today for townhall meetings in rural areas, and 
those are exactly the kind of questions that Oregonians ask. People 
understand this is a dangerous time. That is not at issue.
  I serve on the Intelligence Committee, along with Senator Feinstein, 
and I have been one of the longer serving members. The fact that this 
is a dangerous world is not a debatable proposition. There are a lot of 
people out there who do not wish our country well. But what I say to 
Oregonians and what I will say again this weekend is this: Any 
politician who tells you that you have to give up your liberty to have 
security is not somebody who is working in your interest because smart 
policies give you both.
  That is why I started talking about the benefits of strong 
encryption--

[[Page 4221]]

critically important for security. These questions are ones that I 
don't think are particularly partisan. That is why a big group of 
Democrats and Republicans here and in the other body have been seeking 
the information about how many law-abiding Americans get caught up in 
these efforts to target a foreigner overseas. We are now at a critical 
moment. A government surveillance program, with very obvious 
implications for privacy and constitutional rights, is up for 
reauthorization by the end of the year. While more information may be 
part of the answer, we have to have the best possible estimate to 
answer those questions that I just outlined.
  The American people want Congress to get to the bottom of questions 
that go right to the heart of our having policies that promote both 
their security and their liberty. I think the public expects a full 
debate. You can't have a full and real debate over the Foreign 
Intelligence Surveillance Act unless you have some sense of how many 
law-abiding Americans are getting swept up in these searches of 
foreigners.
  I believe the American people expect serious oversight over it. They 
want assurances that their representatives in Congress have a sense of 
what is actually being voted on. After years of secret surveillance 
programs being revealed only in the news media, I think the public has 
rightly insisted on more openness and more transparency.
  So getting the information that I have described today, which will 
deal with Senator Coats' top priority of reauthorizing the Foreign 
Intelligence Surveillance Act, is a critical first step. Once the 
Senate knows the impact of this program on Americans, then you can have 
a full and real discussion--a real debate in Congress--with the public 
and with the Director of National Intelligence.
  I took the view in the committee, despite very much liking Dan Coats 
and his being the bipartisan cosponsor of what is still the only 
Federal income tax reform proposal we have had in the Senate since the 
1986 law was authored, I said that I cannot support any nominee to be 
the head of national intelligence if that nominee will not guarantee 
that before this reauthorization is brought before the Senate and 
brought before the Intelligence Committee, that we have the information 
needed to do our job, to do real oversight, to show the American people 
it is possible to come up with policies that promote security and 
liberty. For that reason, despite my friendship with Senator Coats, I 
cannot support the nomination.
  I yield the floor.
  Mr. VAN HOLLEN. Mr. President, never before has a sitting President 
so maligned our intelligence community. President Trump has repeatedly 
belittled and ridiculed the work of intelligence officials, calling 
their assessments of Russia's hack into U.S. elections ``fake news.'' 
Over Twitter, President Trump accused intelligence officers of 
executing a Nazi-like smear campaign against him. President Trump has 
sided with the likes of Julian Assange and Vladimir Putin over our own 
intelligence community.
  More disturbingly, President Trump seems to hold shallow views on 
critical intelligence questions like torture. On the campaign trail, 
Mr. Trump constantly vowed to reinstate torture, asserting that only 
``stupid people'' would think otherwise. In an interview with the New 
York Times, Mr. Trump admitted that he was ``surprised'' that Defense 
Secretary Mattis opposed torture, while adding that he would be 
``guided by'' mass sentiments on torture. Mr. Trump's pronouncements on 
torture are dangerous, irresponsible, and rally our enemies.
  Senator Dan Coats has an enormous challenge ahead of him. President 
Trump removed the Director of National Intelligence from the National 
Security Council, marginalizing the intelligence community's essential 
role in informing national security decisions. President Trump 
reportedly plans to hire a New York billionaire with close ties to 
Steve Bannon to conduct a review of the intelligence agencies, a core 
responsibility of the Director of National Intelligence, and Senator 
Coats' hardline assessments of Russia may meet with skepticism in a 
White House that views Putin so favorably.
  I am encouraged by Senator Coats' willingness to work with the 
Congress in a bipartisan manner, particularly on probes related to 
Russia's hack into our election. I expect Senator Coats to maintain his 
commitment to follow the law on enhanced interrogation techniques and 
not to seek to change them. For these reasons, I support his nomination 
to the Office of the Director of National Intelligence.


                     Nomination of Herbert McMaster

  Mr. CARDIN. Mr. President, I have a tremendous amount of respect for 
Lieutenant General McMaster and a great deal of admiration for his 
willingness to answer the call of service for his Nation as National 
Security Advisor.
  So I want to be clear that none of my comments are intended as a 
reflection on General McMaster himself.
  But I am greatly concerned about the current state of the 
organization that General McMaster is being asked to run and that the 
way in which the President and his senior advisers appear to be running 
it is creating great risk for our Nation.
  The President's first National Security Advisor, who lasted less than 
a month in office, had failed to register as a foreign agent, a job 
that he held throughout the Presidential campaign and into the 
transition--so much for America first.
  The initial Executive order structuring the National Security Council 
system for the new administration deliberately omitted the Chairman of 
the Joint Chiefs and the Director of National Intelligence from the 
Principals Committee--in other words, a National Security Council 
without the insight and guidance of our intelligence community or 
military.
  Every administration can structure the White House as it sees fit, 
but national security without intelligence or military advice is, 
frankly, mind-boggling.
  At the same time, the NSC was to include Steve Bannon, the 
President's political adviser. Although previous White Houses have had 
staff from outside the NSC sit in on NSC meetings on occasion and as 
appropriate, never before has an administration suggested that the 
NSC's work of safeguarding our Nation be subordinate to the political 
goals of safeguarding a President's political position and public 
opinion ratings.
  Alongside the NSC, this White House has established a so-called 
Strategic Initiatives Group under Mr. Bannon, which is reportedly 
undertaking strategic reviews of U.S. policy on sensitive issues--
including U.S.-Russia relations. Running a shadow NSC with crossing 
lines of jurisdiction and authority seems like a recipe for disaster.
  So all of this has created an environment of dysfunction and an 
organization in severe distress. It is one thing to run a family real 
estate company this way, but this is our national security that is at 
stake.
  If there is a crisis tonight--on the Korean Peninsula, with Russia, 
in the Middle East or Persian Gulf--it is far from clear that the NSC 
is in a position to provide our senior policymakers with the options 
they need and the decision-space necessary to safeguard America in a 
dangerous and unpredictable world.
  I wish General McMaster all the best, but hope that he is approaching 
the challenges of his job with clear-eyed conviction.
  Mr. VAN HOLLEN. Mr. President, in a few short months, President Trump 
has undermined U.S. credibility and our standing abroad. He has called 
for a nuclear arms race, asserted the United States should reinvade 
Iraq to take its oil, lavished praise on Vladimir Putin, and slandered 
stalwart allies like Australia and Germany. He has issued two Muslim 
bans--a move lauded by the Islamic State and condemned by top military, 
intelligence, and diplomatic officials of both parties.
  President Trump has put our national security apparatus under 
enormous stress. He has appointed Steve Bannon, an extremist with the 
explicit

[[Page 4222]]

ambition to ``destroy the state,'' to the National Security Council--
the highest body charged with protecting the state. He has failed to 
nominate officials for dozens of crucial national security positions, 
hobbling our ability to respond to a future national security crisis. 
He has repeatedly denigrated our intelligence agencies, rejecting 
findings that clearly demonstrated Russia's role in his election. He 
has accused the FBI of breaking the law by wiretapping Trump Tower, a 
groundless claim for which he has offered no proof.
  LTG H.R. McMaster is a respected military strategist with a 
reputation for an independent mind. He has demonstrated throughout his 
career that he is willing to challenge and criticize U.S. leadership, 
irrespective of party. He does not appear to be sympathetic to the view 
of President Trump or Steve Bannon that the United States is at war 
with the entire Muslim world. Instead, while commanding U.S. forces in 
Iraq, General McMaster told his soldiers: ``Every time you treat an 
Iraqi disrespectfully, you are working for the enemy.''
  I am concerned with General McMaster's handling of sexual assault 
allegations against two of his cadets at West Point. McMaster's 
reluctance to interfere with the training of these cadets, despite 
allegations of sexual assault, was in violation of Army policy. I am a 
strong supporter of efforts to reform the military's handling of sexual 
assault, which is why I cosponsored legislation in the House to pass 
new legal protections for victims of assault in the military.
  While I remain deeply concerned with the large number of military 
officials in senior positions in the Trump administration, I support 
General McMaster's retaining his rank while he serves as National 
Security Advisor. I do so with the hope that General McMaster will 
remain faithful to his reputation for dissent, will challenge President 
Trump when he takes a dangerous approach to the world, will restore 
order to the National Security Council, and will steward a foreign 
policy that makes America safer.
  Mr. WYDEN. 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. UDALL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Freedom of the Press

  Mr. UDALL. Mr. President, this week is Sunshine Week, a week when we 
applaud open government and when we celebrate the institutions that 
hold government accountable. Throughout our Nation's history, one of 
the most important has been the press, the free press. Donald Trump, as 
candidate and President, has repeatedly attacked the press. He has 
called it the ``enemy of the people,'' he has labeled the national 
media outlets as ``fake news,'' and he has criticized respected 
reporters who have reported for years.
  He has singled out mainstream newspapers like the New York Times, 
Politico, and the Los Angeles Times, and television outlets like ABC, 
NBC, CBS, CNN. That is how this President operates. He acts like a 
bully, and not just with the media. He attacks the courts when article 
III judges disagree with him, and when they find he is breaking the 
law. He attacks sitting judges for deciding against him, even those 
appointed by Republican Presidents.
  Without basis, he attacks our intelligence agencies, and he even 
demeans career public servants who risk their lives to keep our Nation 
safe. The President's goal is obvious, to undermine the institutions in 
our country who threaten him, who criticize him. Authoritarians have 
used this strategy for centuries and continue to do so today in 
countries where democracy is weak or nonexistent and where autocracy or 
kleptocracy is strong.
  But this is the United States. We are an example to the world of 
democratic principles and action. The President's repeated attacks on 
our democratic institutions need to stop and they need to stop now. A 
free and robust press is critical for democracy to work, period, end of 
story. Our Nation's history of a free press dates back to our founding. 
Free press in the colonial United States developed in reaction to 
severe restrictions on free speech in England.
  During the latter half of the 17th century, all books and articles 
were required to be licensed by the government to be published. Then, 
``seditious libel''--bringing ``hatred or contempt'' upon the Crown or 
the Parliament by written word--was a criminal offense. So to speak 
against the Crown was a criminal offense. Truth was not a defense.
  No publication could criticize the Crown or the government, even if 
it was accurate. The first newspapers in the Colonies operated under 
licenses from the colonial Governor. But by 1721, James Franklin, 
Benjamin Franklin's older brother, was publishing one of the first 
colonial independent newspapers, the New England Courant, in Boston.
  Ben Franklin was his apprentice, typesetter, and sometimes 
contributed under pen names. Several years later, Ben Franklin began 
publishing his own independent newspaper, the Pennsylvania Gazette. His 
newspaper became the most popular in the Colonies and was published 
until 1800.
  By 1735, the tenets of seditious libel were coming undone. John Peter 
Zenger, the publisher of the New York Weekly Journal, ran articles 
harshly critical of the colonial government. Zenger was arrested and 
tried for libel. While he admitted he published the articles, his 
lawyer argued truth was a defense. The press, the lawyer argued, has 
``a liberty both of exposing and opposing tyrannical power by speaking 
and writing the truth.''
  The judge, however, instructed the jury as to the law at the time, 
that Zenger must be found guilty if he published the articles, whether 
truthful or not, but after 10 minutes of deliberation, the jury 
acquitted Zenger. These were some of the beginnings of a free press in 
our Nation.
  The first rights in the Bill of Rights are freedom of religion, the 
press, speech, petition, and assembly. The press, as an institution, is 
expressly protected by the Constitution. In 1789, the drafters of the 
Bill of Rights understood that a free press was essential to the growth 
and success of our new democracy. They understood that debate, 
disagreement, the free flow of ideas, make an informed public, that the 
press helps educate voters.
  They understood all too well that government power needed to be 
checked and that the press holds the powerful in check by investigating 
and exposing arbitrary conduct, abuse, and corruption. A democracy 
cannot exist without a free press. It is as simple as that, but our 
President does not seem to understand this or he does not care. 
According to him, the press is ``dishonest,'' ``not good people,'' 
``sleazy,'' and, ``among the worst human beings.'' Those are all quotes 
by our President.
  Established press organizations are the ``fake news,'' and a few 
weeks ago he declared the press ``an enemy of the people.'' We have not 
heard attacks like this since Watergate, and even then, it wasn't so 
much so fast. The President's subordinates are now given license to 
accuse and to limit press access.
  Chief Strategist Steve Bannon said the press should ``keep its mouth 
shut and just listen for a while.'' This quote from Mr. Bannon has 
extra significance today because he is no longer the head of a 
rightwing media company. In a controversial move, President Trump 
issued an Executive order to add him to the National Security Council's 
Principal's Committee.
  Today, we are going to vote on the nomination of General McMaster to 
retain his three-star general status while serving as the head of the 
National Security Council. I do not believe a political extremist like 
Mr. Bannon should serve on the Council. At a minimum, General McMaster 
should direct Mr. Bannon to stop attacking the free press while serving 
on the Council.
  Senior adviser Kellyanne Conway called for media organizations to 
fire reporters who criticized Candidate Trump. Press Secretary Shawn 
Spicer barred the New York Times and the

[[Page 4223]]

Los Angeles Times, BuzzFeed, and Politico from a press conference, and 
the Secretary of State will now travel without the press corps, 
disregarding a decades-old practice.
  Now, don't get me wrong. The press does not always get it right. They 
make mistakes. News organizations have their biases. Mistakes should be 
corrected and bias should be tempered by using accepted journalistic 
methods and professional judgment and following journalism's ethics 
code.
  Mistakes and the exercise of professional judgment are not the same 
thing as reporting ``fake news.'' The President's Republican colleagues 
have been too silent in the face of attacks. Few in Congress have stood 
up against the President's hostility to the press. Government officials 
are afraid to disagree. Just last week, at a Senate Commerce Committee 
hearing, I asked the FCC Chair, Mr. Pai, a yes or no question, does he 
agree with the President that the press is the enemy of the people.
  He did not engage. He would not answer. He let stand the President's 
remarks. The President's characterization of the press as the enemy is 
reminiscent of President Nixon, when Nixon said: ``Never forget. The 
press is the enemy. The press is the enemy. The press is the enemy,'' 
as recorded on his secret tapes.
  The press was Nixon's enemy because the press exposed his criminal 
conduct which led to his resignation. The press is Trump's enemy 
because the press exposes his and his associates' ties to Russia, the 
President's myriad Trump organization conflicts of interest, his 
constant barrage of misrepresentations of fact.
  Nixon's Press Secretary called the Washington Post investigative 
reporting shoddy and shabby journalism. Like President Trump's 
accusation of fake news, that same Post reporting won the paper a 
Pulitzer Prize.
  Watergate was a break-in of the Democratic National Committee during 
the Presidential campaign. Nixon ordered his Chief of Staff to have the 
CIA block the FBI's investigation into the source of the funding for 
the Watergate burglary. During this last Presidential election, we had 
a cyber break-in of the DNC. Even after 17 U.S. intelligence agencies 
concluded Russia hacked the DNC to sway the election, Candidate Trump 
refused to accept their analysis.
  The President's Chief of Staff pressured the FBI to publicly deny 
that Trump associates had contact with the Russians, while his Chief 
Counsel reportedly breached the firewall seeking information from the 
FBI about an investigation into the President and his associates. Since 
the press began to look hard at the ties between President Trump and 
the Trump organization, his associates and Russia, the President has 
not let up on his criticism. Just last week, the President threatened 
by tweet as follows:

       It is amazing how rude much of the media is to my very hard 
     working representatives. Be nice, you will do much better!

  The job of the press is not to be nice. It is to gather the facts and 
report them. Now that the President of the United States has called the 
reputable U.S. news organizations fake news, others are doing the same. 
Russia's Foreign Ministry spokesman recently accused a CNN reporter of 
spreading ``fake news'' because the reporter asked about accusations 
from U.S. officials that the Russian Ambassador is a spy.
  This is a dangerous path. Putin has throttled an independent press in 
the Russian Federation, imposing restriction after restriction on the 
news media. Reporters have been harassed, threatened, and jailed. The 
numbers of truly independent media organizations in Russia have been 
reduced to a very few, and they have been replaced by state-owned, 
state-run news media, like RT, formerly known as Russia Today, a 
propaganda bullhorn for Putin, according to Secretary John Kerry.
  The President admires Putin as a--and I will quote the President 
here--``strong leader.'' Putin has used his strength to silence an 
independent press. We do not want our press silenced.
  Justice Brandeis, in a famous defense of free speech in a 1927 First 
Amendment case, said: ``[T]hose who won our independence by revolution 
were not cowards. They did not fear political liberty.''
  Does President Trump fear political liberty?
  The irony of the President's accusations of ``fake news'' is that he 
himself has spread misinformation and fanned the flames of internet-
driven lies, from questioning President Obama's citizenship, to his 
frivolous claim that millions of people committed voter fraud and that 
he really won the popular vote--that is the President's claim, that he 
really won the popular vote--to President Trump's unsubstantiated 
accusation that President Obama wiretapped Trump Tower.
  We have entered into an era in U.S. politics never seen before in my 
lifetime. We cannot allow this to be sanitized or explained away. The 
phrase ``alternative facts'' has become a national joke because it 
sounds like something from George Orwell's ``1984.''
  It is not acceptable for a President to falsify, misrepresent, or 
flatout lie. The President's party in Congress should not allow this. 
They should not look the other way and continue to profess that the 
emperor's clothes are grand.
  Reacting to Mr. Trump's attacks on the press, President George W. 
Bush responded:

       I consider the media to be indispensable to democracy. We 
     need an independent media to hold people accountable. Power 
     can be very addictive and corrosive . . . and it's important 
     for the media to hold to account people who abuse their 
     power--whether it be here or elsewhere.

  That was President George W. Bush's recent comment.
  President Bush's prescription for democracy in 2017 is the same as 
the drafters of the First Amendment in 1789: A free and independent and 
robust media is essential to democracy, and any broad-based attack on 
the press is an attack directly on our democracy.
  There is one thing President Trump must understand: The press won't 
go away. They won't stop reporting on the actions he takes and on the 
decisions he makes. He can spend the next 4 years attacking the press, 
but they will still be there--just as they were after Nixon resigned.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SULLIVAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Ernst). Without objection, it is so 
ordered.


                    Tribute to Pastor Evelyn Erbele

  Mr. SULLIVAN. Madam President, every week for the past few months, I 
have been coming down to the Senate floor to recognize a special 
Alaskan, someone who makes my State--what we believe is the most 
beautiful and unique State in our country--a better place for all of 
us. I call this person our Alaskan of the Week.
  Last week, I had the opportunity to recognize Glen Hanson, who 
volunteers his time by flying in what we refer to as the Iditarod Air 
Force--members of the Alaska volunteer community pilots who fly 
supplies in for the Last Great Race.
  I know the pages are really interested in the Last Great Race. So, 
just as a quick update, we had a winner. It is still going on, but one 
musher, Mitch Seavey, crossed the finish line in Nome, AK, in record 
time. I congratulate Mitch and all of the members of the Iditarod Air 
Force who are still out there, flying, when it is 30, 40, below zero. 
It is a tough race, a real tough race. Iowans, I am sure, could do well 
in it but not a lot of other Americans.
  Today, I want to take my colleagues and viewers to a very different 
place in Alaska--about 1,300 miles southeast of Nome, where all the 
Iditarod action is going on, really almost a world away--to a beautiful 
city called Ketchikan, AK.

[[Page 4224]]

  Ketchikan is the first port city that people will visit when they 
take the Alaska Marine Highway's Inside Passage up to Alaska. It is a 
trip that I encourage everybody to take. It is beautiful. Flanked by 
the towering Tongass National Forest, it is a place full of life and 
spirit, mountains, forests, lots of rain, lots of salmon, and lots of 
jaw-dropping scenery.
  Yet, like most places across our country, it has its challenges, and 
it has a challenge with homelessness, like many communities in America 
and Alaska. Luckily, for all of us, Ketchikan is also home to a very 
caring community that has set its sights on helping its fellow 
Alaskans. One of these people is Pastor Evelyn Erbele, our Alaskan of 
the Week, who has dedicated her life to helping others.
  Evelyn is the copastor with her husband Terry of the First United 
Methodist Church of Ketchikan. There is a day shelter in the church's 
social hall, which provides a hot meal, shower, clean clothes, and a 
place for the community's homeless to go every day of the week.
  Oftentimes when we think of homelessness, we think of people not 
having a place to sleep, but it is also important to remember that 
being homeless means having no place to go during the day. First City 
Homeless Services--Day Shelter gives people a place to go during the 
day. Pastor Evelyn oversees that day shelter. According to the manager 
of the shelter, Chris Alvarado, who himself has been homeless, she does 
so with commitment and with kindness and with compassion.
  ``She has a heart of gold and gives 100 percent,'' said one resident 
of Ketchikan about Evelyn.
  Evelyn met her husband Terry in Seward, AK, where she was a nurse in 
1976. From Seward, they set out on a journey to help people around the 
world--Nigeria, Lithuania, Russia.
  In 2009, Evelyn--now with a Ph.D. in theology and ordained by the 
Methodist Church--went up the Alaskan Highway from Bellingham to 
Ketchikan with her husband. She didn't know when she accepted the job 
at the Methodist Church in Ketchikan as copastor that she would be 
overseeing the day shelter. At first, according to her, the work was a 
bit unsettling. ``I never intentionally walked side by side with people 
who are homeless,'' she said. She continued: ``Initially, I may have 
been biased. I was using the word `them' when I would describe the 
people I was working with. One day, the Lord said to me, Evelyn, you 
are them. You are my child no less or no more than they are.'' She said 
that after hearing that voice, she realized she wasn't working with 
``them'' anymore. ``I was working with men and women who were in a 
place that I easily could have been.''
  In her years working to help the homeless in her community in 
Ketchikan, she realized that not everybody who is homeless fits neatly 
into ``one basket.'' There are lots of reasons for homelessness, she 
said, and the homeless may have many, many faces: men, women, children, 
families, the old, and the young.
  As the Presiding Officer knows, homelessness is a big challenge 
across our Nation. On any given day, tens of thousands of Americans--
hundreds of thousands--don't have a permanent place to call home. Of 
course, the best way to address this is to have a strong economy and 
job opportunities, and that is what we need to be focusing on here in 
the Senate. But we also need people like Pastor Evelyn not only in 
Alaska but across the country, who are tireless advocates for helping 
the homeless. I thank all of them. I especially thank her, and I thank 
her for being our Alaskan of the Week.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Nomination of Herbert McMaster

  Mr. SCHUMER. Madam President, since coming to office, the President's 
National Security Council has experienced more turmoil than any in 
history at this stage in a Presidency. The President's first National 
Security Advisor and head of the NSC, Michael Flynn, was fired after 
only a month in his position. The Council itself has been reshaped in 
ways that concern all of us. Permanent postings for the Chairman of the 
Joint Chiefs of Staff and the Director of the National Intelligence 
Agency have been removed and a permanent seat has been installed for 
White House Political Adviser Steve Bannon.
  This organization is a disturbing and profound departure from past 
administrations. On the most sensitive matters of national security, 
the President should be relying on the informed counsel of members of 
the intelligence and military communities, not political advisers who 
made their careers running a White nationalist website.
  The Chairman of the Joint Chiefs of Staff is the President's primary 
military adviser and, along with that of the Director of National 
Intelligence, is the only independent, apolitical voice on the NSC. 
President Trump's move to strip them of their seats is baffling and 
potentially endangers our national security. The President has 
installed in their stead one of the most strident, ideological voices 
in his orbit.
  On the most sensitive issues of national security, we have to have 
fact-based decisions. The President has to get the most dispassionate 
and accurate advice. With all due respect, that is not Mr. Bannon's 
forte. His installation on the principals list of the NSC moves it 
further away from what it needs to be and closer toward a shadow 
council of a dangerously ideological West Wing.
  The bottom line is, this decision was poorly thought out and ill-
conceived. It puts a filter on the information going to the President 
and will make us less safe. My concerns are shared by Members on both 
sides of the aisle. I know that from conversations I have had with 
some.
  It has special relevance today because we are about to vote on 
reappointing H.R. McMaster to lieutenant general, who will be the next 
head of the NSC. General McMaster, by all accounts, will have a 
grounding presence in the national security apparatus of the White 
House. I have met him. I have a great deal of respect for both his 
integrity and his abilities, but I remain deeply concerned that General 
McMaster's judgment may not be followed and instead the fevered dreams 
of Mr. Bannon will influence the most sensitive national security 
discussions and decisions. It has been reported he doesn't want to see 
NATO exist or the European Union. Those are political decisions in a 
body charged with giving the President advice on security.
  So this should concern all of us, especially Lieutenant General 
McMaster.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. FLAKE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Strange). Without objection, it is so 
ordered.


                       Nomination of Neil Gorsuch

  Mr. FLAKE. Mr. President, as I did 2 weeks ago and will continue to 
do until he is confirmed, I rise to support the nomination of Neil 
Gorsuch to serve on the Supreme Court. Judge Gorsuch is an 
accomplished, mainstream jurist, and I look forward to helping to make 
sure that he receives an up-or-down vote on the Senate floor.
  Next week, my colleagues and I on the Judiciary Committee will hold 
confirmation hearings on Judge Gorsuch. I look forward to hearing his 
testimony. I am confident that he will impress the country with his 
knowledge of and respect for the law, just as he has impressed me and 
my colleagues.
  But before the hearings get under way, I thought I would use this 
opportunity today to highlight an additional aspect of his life and his 
jurisprudence that make him an ideal nominee to serve on the High 
Court. So far I have spoken on the floor about his fitness to

[[Page 4225]]

fill Justice Scalia's seat, as well as his defense of the separation of 
powers and his support for religious liberty. Today I would like to 
discuss a more personal aspect of Judge Gorsuch's background--the fact 
that he is a westerner. As an Arizonan, I cannot overstate how 
important it will be to have a fellow westerner serving on the Supreme 
Court.
  Where you are from influences your understanding of cultural and 
regional sensitivities. When you look at the current makeup of the 
Supreme Court, there is an unmistakable lack of geographic diversity. 
Of the eight current Justices, five of them were born in New York or 
New Jersey, and that number was six before Judge Scalia's passing. 
Granted, Justice Kennedy is from Northern California, but to be frank, 
much of Northern California is about as culturally western as Justice 
Breyer's hometown of Boston.
  The Supreme Court is in desperate need of a western perspective. 
Judge Gorsuch fits that bill. When I had the opportunity to meet Judge 
Gorsuch in my office last month, we discussed our respective western 
backgrounds. I talked to him about my days growing up on a cattle ranch 
in rural Arizona. He told me that his heart has always been in the 
American West. You can learn a lot about a person by how they spend 
their time with their friends and their family, and there is no 
mistaking this aspect with Judge Gorsuch. He is a westerner through and 
through.
  He told me about his home outside of Boulder, where his daughters 
raise and show chickens and goats. I was pleased to learn that each 
year he takes his law clerks to the National Western Stock Show in 
Denver, one of the Nation's largest rodeos. By now, I think we have all 
seen the picture of him fly fishing with Judge Scalia. While all this 
demonstrates how much he has embraced the western lifestyle, what makes 
Judge Gorsuch a true westerner is more than just where he lives or 
where his personal interests are. Judge Gorsuch's western values are 
evident in his jurisprudence, which reflects a strong commitment to 
public service. Arizona has had its share of distinguished public 
servants. In fact, it was from this very desk that the late Barry 
Goldwater, one of Arizona's favorite sons, steered the public policy 
debate for years after he chose to leave a successful career in the 
private sector. Judge Gorsuch's career reflects the same ethos.
  Early on, a young Neil Gorsuch rocketed to the top of the legal 
profession, becoming a partner in one of Washington's most elite law 
firms. But instead of enjoying the comforts of a lucrative private 
sector career, he left it all behind for a high-responsibility, low-
profile job at the Department of Justice.
  After his time at DOJ, Neil Gorsuch could have easily retired or 
returned to a white-shoe legal practice. Instead, he returned to his 
home State of Colorado to serve as a judge on the U.S. Court of Appeals 
for the Tenth Circuit. Throughout his tenure on the Federal bench, 
Judge Gorsuch's western disposition has shone through in his 
jurisprudence.
  I have already spoken of his skepticism toward the administrative 
state, with its executive bureaucracies, which, he cautions, ``swallow 
huge amounts of core judicial and legislative power and concentrate 
Federal power in a way that seems more than a little difficult to 
square with the Constitution of the framers' design.''
  He shares a healthy skepticism over an overly intrusive and heavy-
handed bureaucracy with millions of his Federal westerners. Judge 
Gorsuch recognizes how Federal regulations interfere with the ability 
of Western States to govern themselves, whether it is a former 
administration's Clean Power Plan, its ozone rules, or even management 
of the Mexican gray wolf.
  In numerous opinions, Judge Gorsuch has given voice to many of the 
frustrations experienced by his western neighbors. From his criticism 
of an overly assertive DC court that often feels compelled to intervene 
from 2,000 miles away to his recognition of excessive litigation that 
arises from the complexities of split-estate property rights out West, 
he speaks our language.
  These are perspectives any westerner is familiar with, but they may 
not be obvious to others, including folks from New York and New Jersey. 
If confirmed, Judge Gorsuch will already bring generational and 
religious diversity to the Court. Perhaps more than anything, it will 
be his western perspective that most enriches the debate in the years 
to come.
  As I have said before, Judge Gorsuch deserves fair consideration by 
those who serve in this body, and he deserves an up-or-down vote on the 
Senate floor. He should be confirmed overwhelmingly, and I am confident 
that he will be.
  Joining us on the floor today are several members of the Senate from 
Western States. I see that the Senator from Wyoming has joined us. I 
think he has some thoughts about Neil Gorsuch and his nomination to the 
Court.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, joining my colleague here on the floor, 
I agree with all of the comments the Senator from Arizona has made. 
They are interesting because as to the history of the State of the 
Senator from Arizona and his family history, Judge Gorsuch has a 
similar history, to the point that his great-grandfather built a hotel 
in Wyoming called the Wolf Hotel, in Saratoga, WY. I found a picture of 
that hotel from 1878, which was 12 years before Wyoming became a State. 
I got that picture from the American history museum at the University 
of Wyoming and got a copy of the picture and gave it to Judge Gorsuch.
  In front of the hotel in 1878, there was a stagecoach with six horses 
lined up ahead of it. The Wolf Hotel was a halfway stop on the 
stagecoach line between a couple of communities in Wyoming. They were 
about 40 miles apart. So that is the heritage from which Judge Gorsuch 
comes.
  I think that western heritage is important. But I think that 
additionally important is what the Senator referred to--his judicial 
temperament, being such a mainstream member of the judiciary, and this 
general belief inherent within him that the role of a judge is to apply 
the law, not to legislate from the bench.
  We have seen so much legislating from the bench. I think you just 
don't get that if you take somebody from the Rocky Mountain West who 
has this view of the Nation and an understanding of the rule of law and 
the Constitution.
  So I think we are going to see that when the Senate Judiciary 
Committee begins its hearings next week on Judge Gorsuch's nomination 
to the Supreme Court. I visited with him, reviewed his writings, and 
then compared it to what I saw when I visited with Justice Scalia when 
he came to Wyoming. The Senator from Arizona mentioned the picture of 
the two working together, fishing together.
  I just think he is the right person to continue that incredible 
legacy of Justice Scalia.
  Mr. FLAKE. Will the Senator yield?
  Mr. BARRASSO. Yes.
  Mr. FLAKE. You point out the sensitivities that you have when you 
come from the West. A lot of it has to do with, if you are in a rural 
area in particular, you are--as my family grew up--working on the land. 
Much of that land is either owned by or controlled by the Federal 
Government, the State government, or Tribal governments in Arizona's 
case. In fact, 85 percent of the State of Arizona is publicly owned. So 
when you live in the West and you work the land on a ranch or farm, you 
are dealing specifically with Federal regulators and Federal property 
managers. I think those who were raised in the West and have lived here 
understand the impact of the Federal Government's decisions. The 
administrative state has an outsized impact on those who live in the 
West, and I think that is evident in the jurisprudence you see from 
Judge Gorsuch.
  How much of Wyoming is publicly owned?
  Mr. BARRASSO. Well, it is about 50-50. But when you talk about the 
heavy hand of a bureaucratic government and the impact on the lives of 
the people who live there, it is dramatic. It can be

[[Page 4226]]

very punishing, as we have seen over the last 8 years with regulations 
that have come out of agencies--sometimes, I believe, in defiance of 
the law, sometimes reversed by the Supreme Court.
  That is why I think it is critical to have Neil Gorsuch on the 
Supreme Court, because he is someone who realizes that the Constitution 
is a legal document--not a living document, not built for flexibility, 
but really a rigid legal document. That is where I believe he stands. 
That is what his writings indicate. It is the sort of thing we have 
seen from him. I visited with him, and other Members have. These are 
the things we read about.
  With regard to his writings over the years, this is a judge who has 
faithfully applied the law--applied the law, focusing on the 
Constitution. He has not been afraid to rule against the government or 
for unpopular parties when the law demands it because he is going to go 
right back to the law. I believe his opinions show great reverence for 
all of the Constitution--a key respect for the importance of the 
separation of powers.
  I support his nomination completely. It is interesting, because when 
he was nominated for the position he currently holds, the Democratic 
Senator from Colorado--and I am expecting Senator Cory Gardner to be 
here in a little bit to talk about the quote from Ken Salazar, the 
former Senator from Colorado, who talked about what a wonderful man 
Judge Gorsuch was and how he should be put onto that bench. He was 
unanimously confirmed here in the Senate.
  I have full confidence in Judge Gorsuch as a son of the West, as the 
only Justice from the Rocky Mountain West who would be on the Court. 
Specifically, though, I would support him no matter where he was from 
because of his belief that it is the role of a judge and a justice to 
apply the law, not to legislate from the bench, which I think goes 
above and beyond where someone is from, what their background may be. 
But I will just tell you that his background, combined with his 
philosophy and mainstream approach to the law, is exactly what we need 
now in 2017 on the U.S. Supreme Court. I believe he deserves an up-or-
down vote. I believe he will be confirmed as people get a chance to see 
him, get to know him better.
  I see I am joined on the floor by another colleague, also from the 
Rocky Mountain West, the Senator from Montana. You have heard from 
Arizona, Wyoming, and now Montana. I would ask him about his thoughts 
about this nomination by President Trump of Neil Gorsuch to the Supreme 
Court.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. DAINES. Mr. President, I want to thank my esteemed colleague from 
Wyoming, Senator Barrasso, for his comments. He shared many of the same 
views I have.
  As I think about the job I do as a Senator--perhaps one of the most 
important jobs we have as Senators is approving a Supreme Court 
Justice. An Associate Justice of the Supreme Court can serve an average 
of 27 years. We think about Justice Scalia; he served 30 years. Neil 
Gorsuch is 49 years old. God willing, he probably will serve 30 years 
or more, perhaps. Think about that. My wife and I have four children. 
They are going through the college years and so forth. They are in 
their early and midtwenties. They will likely be grandparents when 
Judge Gorsuch wraps up his career on the Supreme Court, assuming he is 
approved. That is why a decision like this about whom to vote for, whom 
to stand behind, whom to stand with is so important. It is not just for 
today, it is for our children and our grandchildren.
  The people want a Supreme Court Justice who does not legislate from 
the bench. The people want a Supreme Court Justice who upholds the rule 
of law and follows the Constitution. The people want a Supreme Court 
Justice with a record of constitutional jurisprudence and legal 
restraint to match what we saw from Justice Antonin Scalia. The people 
want a Supreme Court Justice with the academic credentials, who is well 
prepared to serve the American people on our highest Court, to wrestle 
with some of the most complicated issues that the High Court wrestles 
with.
  When President Trump announced that he was appointing Judge Neil 
Gorsuch to the U.S. Supreme Court, the American people knew he was 
truly a supreme pick. He has a brilliant legal mind. He understands the 
role a judge plays in our judicial system--to interpret the law and not 
to legislate from the bench. In fact, on the night he was announced, 
when President Trump revealed his pick, I was at the White House, and I 
heard Judge Gorsuch say: ``A judge who likes every outcome he reaches 
is very likely a bad judge, stretching for results he prefers rather 
than those the law demands.'' That is the humility of a great judge.
  Judge Gorsuch has impeccable legal qualifications that demonstrate he 
will be the type of Justice every American deserves to have on the 
highest Court. He graduated from Harvard Law School. He was a Harry 
Truman Scholar, graduated with honors in 1991. He earned his law degree 
and then attended Oxford University as a Marshall Scholar and received 
his doctorate degree in 2004 from Oxford.
  As we say out West, and as a Montanan, I have to say I am thrilled to 
see somebody from Colorado be nominated for the Supreme Court. We say 
out West: Go get a good education and then get over it. And he brings 
that kind of humility to the bench. He understands that he is beneath 
the law, he is subject to the law. He is there to interpret the law, 
not to make the law.
  He clerked for Justice Byron White. He clerked for Justice Kennedy of 
the Supreme Court of the United States. In fact, in 2006, Judge Gorsuch 
was nominated by then-President Bush to the Tenth Circuit in Denver, 
CO. He was confirmed without any opposition, including the support of 
11 current Democratic Senators. In fact, some of those Democrats 
included Harvard Law classmate Barack Obama, Vice President Joe Biden, 
and the current minority leader, Chuck Schumer. During his time as a 
judge on the Tenth Circuit, he has built a solid reputation as a 
respected jurist with a very distinguished record.
  One thing about serving on the Tenth Circuit Court for 10 years: You 
can run, but you can't hide. He has left a track record. It is an 
impressive track record. It is a consistent record of defending the 
Constitution, including respecting the separation of powers and 
respecting federalism and the Bill of Rights to protect every American 
from government overreach and government abuse.
  When I had the opportunity to sit down with Judge Gorsuch, it was 
back in early February. We spoke about the role of government and 
federalism. We spoke about the Second Amendment. We spoke about 
protecting life and upholding our civil liberties. We spoke about our 
shared western values, mine as a native Montanan, his as a native 
Coloradan, both of us westerners. I know he understands our way of 
life. He understands Montana values. In fact, his face lit up as we 
talked about the love of the outdoors and his passion for hiking and 
fishing.
  As chairman of the Western Caucus, it is important to me to have 
someone who understands western values, someone who understands the 
impact the law and his decisions will have on the West.
  As westerners, we fight to protect our Fourth Amendment rights. We 
champion federalism so that power not expressly given to the Federal 
Government in the Constitution is returned back to the States and to 
the people. We will tirelessly fight to protect the Second Amendment. 
These are western values.
  By the way, the Second Amendment is not primarily about hunting. Our 
Founding Fathers were not thinking about deer hunting or elk hunting 
when they were discussing the Second Amendment. It was about liberty. 
It was about freedom. These are western values. Judge Gorsuch's 
background and record strongly suggest that he recognizes and adheres 
to these values. He will uphold the law. He will rightfully check the 
administration and Congress when their actions are not done under the 
law, like President Obama's EPA power plan or the WOTUS rule. These are 
actions that cripple western economies, and they are politically 
charged.

[[Page 4227]]

  I would also like to mention that Senator Cory Gardner of Colorado 
and I were just at the White House meeting, just an hour ago. We were 
at the White House meeting with over a dozen Tribes who represent 
hundreds of other Tribes. We were there to discuss our support for Neil 
Gorsuch to be a Supreme Court Justice. I can tell you, it was great to 
be there with one of my hometown Tribes from Montana, the CSKT. They 
have endorsed Neil Gorsuch. They understand that we need a mainstream, 
commonsense westerner on the Supreme Court.
  By the way, when you look at Neil Gorsuch's record on Indian Country 
issues, as a member of the Tenth Circuit Court for 10 years, he has a 
track record of ruling on some very complicated issues that face Indian 
Country. He understands sovereignty. That is very important. That is 
why you are seeing Tribes endorsing Judge Gorsuch.
  More importantly, the American people deserve nine members on the 
Supreme Court. Neil Gorsuch is the mainstream judge the American people 
want and deserve to fill out the Court.
  I am looking forward to what will happen next week in those hearings. 
You are going to see a very, very bright, a very, very thoughtful, a 
very, very kind, and a very, very humble jurist who understands and 
upholds the rule of law. I am excited for our country that we have such 
a phenomenal nominee. I look forward to casting my vote to confirm him 
to the highest Court in our great country.
  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. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, what is the parliamentary situation right 
now?
  The PRESIDING OFFICER. The Senate is considering the Coats 
nomination.
  Mr. McCAIN. Mr. President, I understand that we will be voting in 
about 10 minutes; is that correct?
  The PRESIDING OFFICER. That is correct, sir.
  Mr. McCAIN. Mr. President, I have had the great honor and privilege 
of knowing the nominee to be our Director of National Intelligence for 
many years. In fact, I came to the House of Representatives in the 
election of 1984, and I had the honor of knowing Dan Coats beginning at 
that time.
  As is well known, Dan Coats left the Senate and became our Ambassador 
to Germany, where he did an outstanding job. He came back to the U.S. 
Senate and served in this body with distinction and honor. Now he goes 
on to serve as the Director of National Intelligence.
  I could argue that a dedicated, experienced, knowledgeable, and 
courageous Director of National Intelligence is now needed more than at 
any time that I can remember in the last many years.
  With divisions within the intelligence community, there are 
challenges to the credibility of the intelligence community along the 
lines that I have never seen. There are questions about the activities 
of the intelligence community. For example, the President of the United 
States alleges that Trump Tower was ``wiretapped,'' in his words, by 
the previous administration, and we see the former Director of National 
Intelligence both before the Congress and on national television 
stating that those allegations are not true.
  There are probably more questions and more controversy surrounding 
our intelligence services than at any time since anyone can remember, 
since Watergate. So this is a perfect time, in my view, for Dan Coats 
to assume the highest responsibilities of our Director of National 
Intelligence. He has the respect and indeed affection of Members on 
both sides of the aisle because of his successful efforts at working in 
a bipartisan fashion. He served on the Intelligence Committee. He 
served on that committee in a very dedicated and knowledgeable fashion.
  I hope my colleagues will unanimously vote in favor of our former 
colleague. Both sides of the aisle know him, and we know him well. I 
wish I had some of his qualities of congeniality and pleasantry. He has 
always been respectful of other views. Even in the fiercest debates 
that we might have, he has always been respectful of those who 
disagree. So he comes to the job with the much needed credibility that 
will make him immediately effective.
  Let's be frank. The intelligence communities are probably under 
greater attack in a whole variety of ways, both on whether the American 
people trust them to do the job that they are doing or whether they 
have become a partisan organization. I think that with the respect and 
appreciation and affection that those of us who had the privilege of 
knowing him--on both sides of the aisle--and knowing what an honorable 
and decent person he is, he will not only serve as an effective 
Director of National Intelligence, but he will serve to restore 
credibility.
  God knows we need credibility at this time, as we see the Russians 
trying to affect the outcome of our election, as we see today the 
Russians trying to affect the French election and possibly the German 
election, as we see unprecedented cyber attacks--more than at any time 
in the past. With the challenge of cyber alone, where our adversaries 
or our potential adversaries are equal to or even, in some cases, more 
capable of exercising their abilities and capabilities in the cyber 
realm, then we are in a very difficult and challenging struggle.
  That is why I think that many times in history, not only does the man 
make the job but the job makes the man. I am confident, in the case of 
Senator Dan Coats, that will be the case.
  I thank the Democratic leader for allowing this vote to take place so 
Dan Coats can get to work immediately.
  I urge my colleagues to offer their support with their vote for this 
nomination of a great and good and gentle man who has again volunteered 
to serve his Nation, for which all of us should be appreciative, and I 
am sure we are.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the Coats 
nomination?
  Mr. BARRASSO. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander), the Senator from Tennessee (Mr. 
Corker), and the Senator from Georgia (Mr. Isakson).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea'' and the Senator from Tennessee (Mr. 
Corker) would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Cotton). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 85, nays 12, as follows:

                       [Rollcall Vote No. 89 Ex.]

                                YEAS--85

     Barrasso
     Bennet
     Blumenthal
     Blunt
     Boozman
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Collins
     Coons
     Cornyn
     Cortez Masto
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Graham
     Grassley
     Hassan
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Johnson
     Kaine
     Kennedy
     King
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Moran
     Murkowski
     Murphy

[[Page 4228]]


     Murray
     Nelson
     Perdue
     Peters
     Portman
     Reed
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Schumer
     Scott
     Shaheen
     Shelby
     Stabenow
     Strange
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Van Hollen
     Warner
     Whitehouse
     Wicker
     Young

                                NAYS--12

     Baldwin
     Booker
     Duckworth
     Gillibrand
     Harris
     Markey
     Merkley
     Paul
     Sanders
     Udall
     Warren
     Wyden

                             NOT VOTING--3

     Alexander
     Corker
     Isakson
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I move to reconsider the vote, and I move 
to table the motion to reconsider.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  The motion was agreed to.
  Mr. McCAIN. Mr. President, I ask unanimous consent to address the 
Senate for 1 minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Nomination of Herbert McMaster

  Mr. McCAIN. Mr. President, I urge my colleagues to render an ``aye'' 
vote for the nomination of Herbert McMaster to remain in active duty at 
the three-star level. He is experienced. He is talented. He knows what 
it is like to be in combat with the enemy, and I believe he is badly 
needed in this important position.
  I urge my colleagues to render an ``aye'' vote.

                          ____________________