tv U.S. Senate CSPAN December 27, 2012 12:00pm-5:00pm EST
boundary to implement. the order required the government to obtain a warrant and show probable cause. these are the same basic commonsense protections we've had in place for other types of searches. this development required individualized and particular orders from the fisa court to conduct investigations. let's fast forward to 2001. president bush decided in secret to authorize the national security agency to start a new program of warrantless surveillance inside the united states. this is in complete contravention of the fourth amendment and complete contravention of the law at that time. as i'm sure and many of my colleagues will certainly recall this was revealed to the american public four years later when it was reported in "the new york times" in 2005. and in response after years of back and forth contentious debate, congress passed the fisa amendments act, the bill that we are considering on this floor
today. we're considering a reauthorization. this law gave the government new surveillance authorities, but it also included a sunset provision to ensure that congress examines where the law is working and the way it was intended. now, the debate we're having right now on this floor is that reexamination. i will just note that i think it's unfortunate that we're doing this at the last second. we have known that this intelligence law is going to expire for years. it was laid out for a multiyear span. and certainly, it is irresponsible for this chamber to be debating this bill under a falsely created pressure that it needs to be done without any amendments in order to match the bill from the house. that is a way of expressing debate on critical issues here in america. if you care about the fourth amendment, if you care about privacy, you should be arguing that we should either create a very short-term extension or -- to have this debate fully or that we should have this debate
months ago so it could be done in a full and responsible manner with no pressure to vote against amendments in order to falsely address the issue of partnering with the house bill. so this law included that sunset provision and now here we are looking at the extension. it's a single-day debate, crowded here into the holidays when few americans will be paying attention, but i think it's important nonetheless for those of us who are concerned about the boundaries of privacy and feel like the law could be strengthened to make our case here in hopes that at some point we will be able to have the real type of consideration that these issues merit. in my opinion, there are serious reforms that need to be made before we consider renewing this law. this law is supposed to be about giving our government the tools it needs to collect communications of foreigners outside of our country.
if it's possible that our intelligence agencies are using a law to collect and use to communicate to americans without a warrant, that's a problem. of course we can't reach conclusions about that in this forum because this is an unclassified discussion. my colleagues senator wyden and senator udall who serve on intelligence have discussed the loophole in the current law that allow the potential of back-door searches. this could allow the government to effectively use warrantless searches for the communications of law-abiding americans. and senator wyden has an amendment that relates to closing that loophole. congress never intended for the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we don't have the details of exactly how this proceeds and we can't debate this in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of
protections and efforts to close loopholes that senator wyden has put forward. what we do know is this past summer, the director of national intelligence said -- and he said this in a public forum -- that on at least one occasion, the fisa court has ruled that a data collection carried out by the government did violate the fourth amendment. we also know the fisa court has ruled the government has circumvented the spirit of the law as well as the letter of the law. but too much else of what we should know about this law remains secret. in fact, we have extremely few details about the courts have interpreted the statute that have been declassified and released to the public. and this goes to the issue of secret law that my colleague from oregon was discussing earlier. that if you have a phrase in the law and it's been interpreted by a secret court and the interpretation is secret, then you really don't know what the law means.
the fisa court is a judicial body established by congress to consider requests for surveillance made under the fisa amendments act, but almost without exception, it's decisions including significant legal interpretations of the statute remain highly classified. they remain secret. i'm going to put up this chart just to emphasize that this is a big deal. here in america, if the law makes a reference to what the boundary is, we should understand so it can be debated. if the court reaches an interpretation that congress is uncomfortable, we should change that. but of course we can't change that not knowing what the interpretation is because the interpretation is secret. so we are certainly constrained from having the type of debate that our nation was founded on, an open discussion of issues. now, these are issues that can be addressed without in any way
compromising the national security of the united states. understanding how certain words are interpreted tells us where the line is drawn, but that line wherever it is drawn is, in fact, relevant to whether the intent of congress is being fulfilled and whether the protection of citizens under the fourth amendment is indeed standing strong. an open and democratic society like ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statutes. the opinions of the fisa court are controlling. they do matter. when the law is kept secret, public debate, legislative intent, finding the right balance between security and privacy all suffer. in 2010, due to concerns that were raised by a number of senators about the problem of classified fisa court opinions, the department of justice and the office of the director of
national intelligence said they would establish a process to declassify opinions of the fisa courts that contained important rulings of law. in 2011, prior to her confirmation hearing, lisa monacco, our assistant attorney general for national security, expressed support for declassifying fisa court opinions that included -- quote -- "significant instructions or interpretations of fisa." so here we have the situation where the department of justice and the office of the director of national intelligence said they would establish a process to declassify the opinion. they understood that americans deserve -- in a democracy, you deserve to know what the words are being interpreted to mean. and we have the assistant attorney general for national security during her hearings to express that she supports significant instructions or interpretations being made available to the public. but here we are two years later
since 2010 expressions and a year from the confirmation hearing for lisa and nothing has been declassified, nothing. the amendment i am offering today sets out a three-step process for sending the message that it's important that americans know the interpretations of these laws. it does so in a fashion that's carefully crafted to make sure that there is no conflict with national security. if the according decides that a decision -- so first step, you call upon the attorney general to declassify the fisa court in court of review opinions that include significant legal interpretations. if the attorney general makes a decision, however, that it cannot be declassified, those decisions in a way that does not jeopardize national security, then the amendment requires the administration to declassify summaries of their opinions. so the first point you have the actual written court opinions, but possibly woven into those
court opinions are a variety of -- of contacts about ways and manner of gathering intelligence that pose national security problems. so this amendment says okay, if that is the case, we certainly don't want to disclose sensitive information about ways and means of collecting intelligence, so declassify summaries. that way we can understand the legal interpretation without adjoining information that might represent a national security problem. and this amendment goes further. if the attorney general decides that not even a summary can be declassified without compromising national security, then the amendment requires the administration to report to congress regarding the status of its process for declassifying these opinions, a process the administration has already said it's undertaking. so it just says tell us where you are. now, it's probably very clear from my discussion of this that i would prefer the opinions, the actual court opinions be
declassified and that perhaps if they are sensitive, the national security information would be redacted. that's a normal process in which documents would be classified. you block out or remove the sections that are sensitive. but the amendment i'm presenting goes further on the side of protecting national security, saying you don't just have to do redacted court opinions. you can do a summary that addresses the significant legal interpretations without getting into any of the ways and means that might be embedded in a broughter court opinion. and that furthermore, if you make a decision, mr. attorney general, that not even that is possible without compromising national security, then update us on the process. but the key point is it requires the attorney general to make a decision, a clear decision over the national security balance and provide what can be done within the context, within the framework of not compromising on national security. this is so straightforward that anyone bringing this argument to the floor, we shouldn't do this
because it compromises national security really has no case to make, absolutely no case to make. the presiding officer: the senator's time under the order has expired. mr. merkley: it is my understanding that 30 minutes were allocated. the presiding officer: 30 minutes equally divided. mr. wyden: mr. president? parliamentary inquiry. can i yield to senator merkley time from general debate in order to let him complete his remarks? the presiding officer: with unanimous consent of the senate. mr. wyden: i would ask unanimous consent. the presiding officer: without objection. is there objection? mrs. feinstein: time to address the bill overall is going to be used on one amendment, i object. mr. merkley: mr. president? if there is no one else waiting to speak, i ask unanimous consent to speak as if in
morning business and will yield when someone is ready and prepared to speak to the bill. the presiding officer: is there objection? the presiding officer: the senator from california. mrs. feinstein: let me do something i do sometimes correct myself. if the senator is offering the time against his amendment -- or time against the bill using that time, that's fine with me, as long as he's not using the time for the bill.
mr. wyden: mr. president, i think this is acceptable, yes. mrs. feinstein: i thank the senator. mr. merkley: thank you, mr. president. i thank my colleagues for setting out the parameters. i'm going to wrap this up in fairly short order here. again, i want to emphasize that if any of my colleagues to -- would like to come down and argue that this in any way compromises national security, i would be happy to lead the debate. this has been laid out so the attorney general has complete control over any possible compromise of information related to national security. indeed, i think it is important for this body to continue to express that the spirit of what we do in this nation should be about citizens to the maximum extent possible having full and clear understanding of how the letters of the law are being interpreted. let me show you an example of a
passage. here is a passage about what information can be collected. reasonable grounds to believe that tangible things sought are relevant to an authorized investigation other than a threat assessment conducted in accordance with subsection a-2, and so on and so forth. let me stress these words -- relevant to an authorized investigation. now, there are ongoing investigations, multitude of investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. and so certainly there has been some fisa court decision about what relevant and authorized investigation means or what tangible things means. well, so is this a gateway that is thrown wide open to any level of spying on americans or is it
not? is it tightly constrained in understanding with this balance of the fourth amendment? we don't know the answer to that. we should be able to know. and if we feel that an administration and the secret court have gone in a direction incompatible with our understanding of what we were seeking to defend, then that would enable us to have that debate here about whether we tighten the language of the law in accordance with such an interpretation. so again, is this an open gateway to any information anywhere in the world at any time on anyone, or is it a very, very narrow gate? well, we don't know. we should be able to know as american citizens. we certainly should be able to know as u.s. senators working to protect the -- the fourth amendment. mr. president, we have always struck a balance in this country between an overbearing
government and the important pathway to obtaining information relevant to our national security. the amendment that i'm laying forth strikes that balance appropriately. it urges the process to continue of providing an understanding of what the secret court interpretations are. that's very important in democracy. it provides the appropriate balance with national security. it gives clear decision-making authority to the attorney general in this process and in that sense, it does the best possible path that honors national security concerns while demanding transparency and accountable for this issue of privacy and protection of the fourth amendment. thank you, mr. president. mr. wyden: mr. president? the presiding officer: the senator from oregon. mr. wyden: how much time for purposes of general debate remains on our side and how much under the control of the distinguished chair of the
committee? the presiding officer: the opponents have 140 minutes remaining. the proponents have 183 minutes remaining. mr. wyden: thank you very much, mr. chair. then to speak again out of our -- our time to just respond to a couple of points. i also want to commend my colleague, senator merkley from oregon, for an excellent statement. he has been doing yeomen work in terms of trying to promote accountability and transparency on this issue and, frankly, in his work here in the united states senate. and i'm just going to correct a couple of misconceptions about what's -- what's been said, mr. president, and then also talk on behalf of the good work that senator merkley is being
done. now, with respect to this amendment that i will be offering, mr. president, again, i believe that the senate cannot say that we passed the smell test with respect to doing vigorous oversight if we don't have some sense of how many americans, you know, here in our country are communicating with each other are being swept up under this legislation. i think we ought to know whether for purposes of the fisa amendments act, you know, generally how many americans are being swept up under the legislation and oversight will really be toothless without this kind of information. so i want to correct just one misconception with respect to where we are on the language in
the reporting amendment. now, the distinguished chair of the committee urged senators to come down to the offices of the senate select committee on intelligence to see the documents that the chair has stated relate to intelligence official -- intelligence officials saying that it is impossible for them to estimate the number of law-abiding americans who have had their communications swept up under the legislation. the fact, however, is when colleagues read the amendment that i will be offering, they will see that i am not requiring anyone -- not requiring anyone -- to take on a new task of preparing an estimate of how many law-abiding americans have been swept up in it. this is simply a request to the
intelligence community saying that if any estimate has already been done -- already been don done -- mr. president, that estimate ought to be provided. so when the distinguished chair of the committee says that senators should go over to the committee's offices and look at the documents that state the intelligence community cannot do a new estimate, i just want senators to know that the language of my amendment does not ask for a new estimate. in no way does it ask for a new estimate. it simply says, if an estimate has been done, that estimate ought to be furnished. and if no estimate has been done, the answer to that is simply no.
we'll be very clear about it and the matter will have been clarified. and if no estimate has been do done, then, fine, the answer would be no. and then, as i indicated earlier, mr. president, the amendment also requires the intelligence community to state whether any wholly domestic communications have been collected. that is a answer again "yes" or "no." and then finally it requires a response to whether or not the national security agency has collected personal information on millions of americans. and that, too, is a very straightforward answer. so i think when we talk about this kind of, you know, information, we ought to come back to the fact that no sources and methods in the intelligence community would be compromised,
in no way would the operations, the important work of the intelligence community be interrupted. what it would simply do is provide us what i think are really the basics that this senate needs to be able to say it is doing real oversight, real oversight over a very broad area of surveillance law. and i hope that senators will ask themselves as we look at this, do we know here in the senate whether anyone has ever estimated how many u.s. phone calls and e-mails have been warrantlessly collected under the statute? does the senator know whether any wholly domestic phone calls and e-mails have been collected under the statute? does the senator know whether the government has ever conducted any warrantless
backdoor searches for americans' communications? if not, this is the senate's chance to answer that question. and when our constituents come forward and ask us whether the government is protecting our privacy rights as we protect our security, the question really is, how does a senator look their constituents in the eye and tell them they don't know and -- and really aren't in a position to get what strikes me as information, mr. president, that is essential to pass the smell test when it comes to this body doing basic oversight over what is certainly a broad and for many americans rather controversial surveillance law. now, i assume, because we've already heard some
characterizations of my amendment which are simply factually incorrect, that we'll have other responses to the reporting amendment in terms of objections. now, i've already, you know, stated my first, you know, concern, the intelligence community stating that they can't estimate how many americans' communications are collected under the key section, 702 of fisa, and my response again is that when senators look at the text of the amendment, it doesn't require anybody to do an estimate. it simply says that if estimates do exist, they ought to be provided to the congress. and i do not -- not think that when it comes to our oversight responsibilities that is a request that is excessive or unreasonable. second, i think we will hear that the house and senate
intelligence committees already do oversight of fisa. well, every member of the congress has to vote on whether or not to renew the fisa amendments act so, frankly, i think every member of this body ought to be able to get a basic understanding of how the law actually works and that is not available today. next, we will hear that the intelligence community has already provided the congress with lots of information about the fisa amendments act. as the presiding officer knows from his service on the committee, much of that information is in highly classified documents that are difficult for most members to review, and the reality is, is that most members literally have no staff who have the requisite security clearance in order to be able to read them. this amendment that i am talking
about with respect to basic information on the number of americans who have their communications swept up under fisa, whether americans with respect to wholly domestic communications have been swept up under -- under this law, this is information in my view that ought to be available to this bodily and it ought to be -- body and it ought to be available in documents that members can actually access and frankly, they ought to be available in a single document that members can access. now, we will also hear in connection with the discussion about these issues is that the answers to these questions, mr. president, should not be made public. the amendment that i'm going to be offering with respect to getting a rough set of estimates
with respect to how many americans are being swept up under these authorities and whether an estimate actually even exists, the amendment i'm offering gives the president full authority to redact whatever information he wishes from the public version of the report. under the amendment that i am pursuing, the executive branch would have full discretion to decide whether it's appropriate to make any of this information public or not. so as we ensure more transparency and more accountability with respect to this information and access to it, no sources and methods that have to be protected, the important work that the intelligence committee is doing, none of this is compromised in any way, because the last word with respect to information that the senate and the public
receives, the last word on this subject is the call of the president of the united states who has the full discretion to decide whether it's appropriate to make any of this information public or not. now, finally, we're undoubtedly going to hear that the law is about to expire and amendments will slow it down. mr. president, first of all, i think that many of us would have rather had this debate, you know, earlier in this session of the senate and had there been more dialogue on a lot of these issues, that would have been possible. but we are where we are. i think we understand that. we understand that the huge challenge of the fiscal cliff is vital in terms of our work this week. but i continue to believe that the other body is perfectly capable of passing this legislation again before the end
of the year. the amendments that are being offered all go to the issue of transparency, they go to the issue of accountability, and none of them, not a one of them would jeopardize the important daily work, what are called the issues relating to sources and methods and the work of the intelligence community, not a one of these amendments would jeopardize those ongoing kind of operations. the congress can make amendments to improve oversight and still keep this law from -- from expiring. so with respect to the reporting amendment, again, mr. president, i hope that on the argument made by the distinguished chair of the committee, that the intelligence community has that said they can't estimate how
many americans' communications have been collected under section 0 702 and she has urged that senators go to the office of the intelligence committee. i just happy to colleagues, when they look at the text of the amendment, the amendment does something different than the issue that has been raised by the distinguished chair of the committee. the amendment does not require anyone to do an estimate. it simply says that if an estimate already exists, that estimate ought to be provided to the congress. mr. president, let me also make some brief remarks on this issue of secret law that touches on the point raised by my colleague from oregon, senator merkley, who i think has given a very good presentation here on the floor and has a very good
amendment. when the laws are interpreted in secret, the results frequently fail to stand up to public scrutiny. we've talked about this on the floor and in the committee, and it really isn't that surprising when you think about it. the law-making process in our country sofpb -- is often cumbersome, frustrating and often contentious. but over the long run i think we know that this process is really the envy of the world because it gives us a chance to have a real debate, generate support most americans because then people see when they have had a chance to be part of a discussion that they are really empowered in our system of government. on the other hand, when laws are
secretly interpreted behind closed doors by a small number of government officials without public scrutiny or debate, you're much more likely to end up with interpretations of the law that go well beyond the boundaries of what the public accepts or supports. so let's be clear that when we're talking about public scrutiny and having debates, that's what allows the american people to see that those of us who are honored to serve them are following their will. but sometimes it is entirely legitimate for government agencies to keep certain information secret. in a democratic society, of course, citizens rightly expect that their government will not arbitrarily keep information from them. and throughout our history, our
people have guarded their right to know. but i think we also know that our constituents acknowledge that certain limited exceptions exist to this principle of openness. for example, most americans acknowledge that tax collectors need to have access to some financial information. but that the government does not have the right to share this information openly. so we strike the appropriate balance on a whole host of these issues on a regular basis. another limited exception exists for the protection of national security. the u.s. government has an inherent responsibility to protect its citizens from threats, and it can do this most effectively if it's sometimes allowed to operate in secrecy. i don't expect our generals to publicly discuss the details of every troop movement in afghanistan any more than
americans expected george washington to publish his strategy for the battle of york town. by the same token, american citizens recognized that their government may sometimes rely on secret intelligence collection methods in order to ensure national security, ensure public safety, and they recognize that these methods often are more effective when the details, what are really the operations and methods as we characterize them under intelligence principles, remain secret. but while americans recognize that government agencies will sometimes rely on secret sources and methods to collect intelligence information, americans expect that these agencies will at all times operate within the boundaries of publicly understood law. now, i have had the honor, mr. president, to serve on the intelligence community now for
over a decade. i don't take a back seat to anyone when it comes to the importance of protecting genuine , sensitive details about the work being done in the intelligence community, particularly their sources and methods. mr. president, the law itself should never be secret. the law itself should never be secret because voters have a right to know what the law says and what their government thinks the text of the law means so they can make a judgment about whether the law has been appropriately written and they can then ratify or reject the decisions that elected officials make on their behalf. now when it comes to most government functions, the public can directly observe the functions of government and the typical citizen can decide for themselves whether they support or agree with the things that
their government is doing. american citizens can visit our national forests. we take particular pride in them in our part of of the country, and decides for themselves whether the forests are being appropriately managed. when our citizens drive on the interstate, they can decide for themselves whether those highways have been properly laid out and adequately maintained. if they see that an individual is being punished, they can make judgments for themselves whether that sentence was too harsh or too lenient. but they generally can't decide for themselves whether intelligence agencies are operating within the law. that's why as u.s. intelligence community evolved over the past several decades, the congress has set up a number of watchdog and oversight mechanisms to ensure that intelligence
agencies follow the law raurpb violate it. that is why both the house and the senate have select intelligence committees. it's also why the congress created the foreign intelligence surveillance court and why congress created a number of statutory inspectors general to act as independent watchdogs inside the intelligence agencies themselves. all of these oversight entities, one of which, mr. president, i'm proud to serve on -- the senate select committee on intelligence. all of them were created at least in part to ensure intelligence agencies carry out all of their activities within the boundaries of publicly understood law. but i come back to my reason for bringing this issue up this afternoon, mr. president. the law itself always ought to be public. and tkpwofpt -- government
officials must not fall into the trap of secretly interpreting the law in a way that creates the gap between what the public think the law says and what the government is secretly claiming that the law says. any time that's being done, first, it violates the public trust. second, i have long felt that allowing this kind of gap, a gap between the government's secret interpretation of the law and what the public thinks the law is, undermines the confidence that our people are going to have in government and, by the way, is pretty shortsighted because history shows that the secret interpretations of the law aren't likely to stay secret forever. and when the public eventually finds out that government agencies are rewriting these surveillance laws in secret, the
result is invariably a back lash and an erosion of confidence in these important government intelligence agencies and the important work that i've noted this morning our intelligence officials are doing. so this is a big problem, mr. president. our intelligence and national security agencies are staffed by exceptionally hardworking and talented men and women, and the work that they do is extraordinarily important. if the public loses confidence in these agencies, it doesn't just undercut morale, it makes it harder for these agencies to do their jobs. if you ask the head of any intelligence agency, particularly an agency that's involved in domestic surveillance in any way, he or she will tell you that public trust is a vital commodity and voluntary cooperation from law-abiding americans is
critical to the effectiveness of their agency. if members of the public were confident in their government agencies because they think government officials are rewriting surveillance laws in secret, those agencies are going to be less effective. mr. president, i don't want to see that happen. on my watch, i don't want to be part of anything that makes our intelligence agencies less effective. these officials and these government agencies do not get up in the morning to do their work with malicious intent. they work very hard to protect intelligence sources and methods for good reasons, and sometimes what happens is people lose sight of the difference between protecting sources and me thoughts, which ought to be kept secret, and the law itself which should not be kept secret.
sometimes they even go sore far as to argue that keeping -- even go so far as to arguing that keeping interpretation of the law kret is necessary because it prevents our nation's adversaries from figuring out what our intelligence agencies are allowed to do. my own view is this is really alice in wonderland logic, but if the u.s. government were to actually adopt it, all of our surveillance laws would be kept secret because that would be even more useful. when congress passed the foreign intelligence surveillance act of 1978, it would have been useful to keep the law secret from the k.g.b. so that soviet agents wouldn't know whether or not f.b.i. was allowed to track them down. but american laws and the american constitution shouldn't be public, only when government officials think it's convenient. it ought to be public all the
time. americans ought to be able to find out what their government thinks those laws mean, and i think it is possible to do that while still ensuring that sensitive information -- information about sources and methods and the operations of the intelligence community are appropriately kept secret. my own view is the executive branch of the united states has so far failed to live up to their promises of greater transparency in this area, greater commitment to ensuring that the public sees how our laws are being interpreted. and as long as there is a gap, mr. president, between the way the government interprets these laws and what the public law says when we're sitting at home and looking it up on your latop,
i am going to do everything i can to reduce that gap and to ensure that our citizens, consistent with our national security, have additional information with respect to how our laws are interpreted. we can do that while at the same time protecting the critical work that's being done by officials in the intelligence community. with that, mr. president, peuld be happy -- i would be happy to yield to the distinguished chair of the committee. mrs. feinstein: mr. president? the presiding officer: the senator from california is recognized. mrs. feinstein: mr. president, i'd like to take a moment to clarify this question of secret law. this is the law. it is not secret. this is all of the law guaranteeing the legality of what we do in the intelligence community. there is a whole section on
congressional oversight. there's a whole section on additional procedures regarding persons inside the united states, persons outside of the united states. this in fact is the law. we can change the law. and senator wyden had something to do with section 704. he did in fact change the law to put additional privacy protections in, and those privacy protections are up for reauthorization in this bill. i'd like to address myself, if i could, to what senator merkley said in his comments. i listened carefully, and what he was saying was opinions of the foreign intelligence surveillance court should in some way, shape or form be made
public, just as opinions of the supreme court or any court are made available to the public. and to a great extent i find myself in agreement with that. they should be. why can't they be? because they mix the law and the particular circumstances, are mixed together in the opinion. and so the particular circumstances are possibly classified. they may be names, they may be -- who knows what they are, but certainly the opinion can either be written in a certain way for public release or the attorney general can be required to prepare a summary of what that opinion said for release to the public. there is one part of senator merkley's amendment which i like very much, and that's on page 5,
lines 3-11, which said -- which say -- "notwithstanding paragraph 2 and subject to paragraph 4, if the attorney general makes a determination that a decision may not be classified and made available in a manner that protects the national security of the united states, including methods or sources related to national security, the attorney general shall release an unclassified summary of such decision." i have talked to senator merkley about this and i have offered my help in working to establish this. the problem is we have four days, and this particular part of the law expires. section 702 and 704. i think we can get it done. i think that this is a reasonable request, and i have
offered to him to write a letter. if that doesn't work, we will do another intelligence authorization bill next year, and that certainly can be added to that bill. so what's happening here is the term secret law is becoming also conflicting with what the foreign intelligence surveillance court puts down in the form of opinions, and the law is here and the law is public and the opinions of the foreign intelligence surveillance court should be made available to the public in declassified form, whether this could be done by the court or whether it has to be done by the attorney general, i don't know at this time, but it can be done and i think it should be done. i think that's a worthy thing. then you have the law that's public and you have the summary of the opinion which is also
public, and hopefully that helps this debate. so i have agreed with senator merkley to do that, and now i would ask unanimous consent that all quorum calls during debate on the fisa bill be equally divided between the proponents and opponents. the presiding officer: without objection. mrs. feinstein: thank you. mr. wyden: mr. president, just to respond to the points made by the distinguished chair of the committee -- and by the way, i think the chair's reference to being willing in the next intelligence authorization bill to work with those of us, and senator merkley has made good points this afternoon, to try to include language in the next intelligence authorization bill to deal with secret law, i think that would be very constructive. i appreciate the chair making that suggestion. colleagues may know that under
the leadership of the chair and the distinguished senator from georgia, the vice chair of the committee, senator chambliss, we were able late last week to work out the disagreements with respect to the intelligence authorization bill this year. i want to thank the chair for those efforts. i think we have a good bill. i think all of us are against leaks. that was what was at issue. i think we have now dealt with the issue in a fashion so as to protect the first amendment and the public's right to know. i appreciate the chair's working with this senator on it, i think we have a good intelligence authorization bill now for this year, and i think the chair's suggestion that we look at dealing with this issue of secret law, in addition i hope to passing the merkley amendment
that we deal with it in the next intelligence authorization bill that is constructed. i do want to respond to one point on the merits with respect to the comments made by the distinguished chair on this issue. the distinguished chair of the committee has essentially said that the law is public because the text of the statute is public. that's true. that is not in dispute. it is true that the text of the law is public, but the secret interpretations of that law and the fourth amendment from the fisa court are not public, and the administration pledged three years ago to do something about that, pledged it in writing in various kinds of communications, and that still has not been done. so that is why this is an important issue with respect to
transparency and accountability. the distinguished chair of the committee is absolutely correct that the law is public, the text of the law is public. nobody disputes that, but the secret interpretations of the law and the fourth amendment, the interpretations of the fisa court are not public, and we have received pledges now for years that this would change. i remember perhaps before the distinguished chair of the committee was here talking about how when senator rockefeller and i got a letter indicating that this was going to be changed that we were very hopeful that we were going to again get more information with respect to legal interpretations, matters that ought to be public, that don't threaten sources and methods and operations, and we still have not gotten that.
so that is the reason why senator merkley's work is so important. i see my friend and colleague here, senator merkley, the distinguished chair of the committee, had made a point while i think you had to be out of the chamber that the law is public because the text of it is public, but what you have so eloquently described has been our concern is that the opinions of the fisa court and their opinions and views about the fourth amendment are what has been secret, and the administration has said for years now that they would do something about it, and so your amendment seeks to give this the strongest possible push. i think that's why your amendment is so important. you're obviously making a lot of headway because the distinguished chair of the committee has also said that this issue of secret law is
something that can be addressed as well in the intelligence authorization bill. so if we can pass your amendment and then move on to the intelligence authorization bill, that will be, i think, a very constructive way to proceed, very much in the public interest, and you're obviously making headway. mr. merkley: mr. president, if i could interject for a minute? i thank my colleague from oregon for really spearheading this whole conversation about privacy and national security and how the two are really not at war with each other. we are simply looking for appropriate warrant processes and assurance of the public that the boundaries of privatary are being respected. and certainly a piece of that is the secret law, and i appreciate the comments of the chair of intelligence on this issue. i do feel that in a democracy,
understanding how a statute is interpreted is essential to the conduct of our responsibility in forging laws and ensuring that the constitutional vision is protected. mr. wyden: i thank my colleague. he is making an important point. i have sat next to senator feinstein in the intelligence committee now for 12 years, and i think all of us -- and we have had chairs on both sides of the aisle understand how important the work of the intelligence community is. this is what prevents so many threats to our country from actually becoming realities, tragic realities. and what my friend and colleague from oregon really has hammered home this afternoon is that if the law is secret -- and there is a big gap between the secret
interpretation of a law and what the public thinks the law means. my friend and i represent people who, for example, could be using their laptop at home in coos bay, and they look up a law and they see what the public interpretation is, and they later find out that that public interpretation is real different than what the government secretly says it is. when people learn that, they are going to be very unhappy. and i see that my colleague would like some additional time to address this, and i'm happy to yield to him. mr. merkley: thank you, senator wyden. you mentioned anoringian sitting in coos bay, working on his or her lap stop, and calling up and saying the government can collect tangible material related to an investigation.
does that mean that they can collect all of my web conversations knowing that the web circuits travel around the world multiple times, sometimes they pass through a foreign space. they ask this question because they are concerned about the fourth amendment and their privacy. how much ability do you have to give them a definitive answer on that? mr. wyden: absent the information that we are seeking to get under the amendment that i am going to offer, i don't think that it's possible for a senator to respond to your question. the issue for i think an individual senator would be do you know whether anyone has ever estimated how many u.s. phone calls and emails have been warrantlessly collected under the statute? do you know whether any wholly
domestic calls and emails have been collected under this statute, which i believe is the exact question my colleague from oregon has asked. i don't believe a member of the united states senate can answer that question. and being unable to answer that question really means that oversight here, which is so often trumpeted on both sides of the aisle, can really toothless when it comes to the specifics. i hope that's responded to my colleague's question. mr. merkley: absolutely. i think about other questions my constituents might ask. they might ask if our spy agencies are collecting vast data from around the world and they become interested in a citizen, an american citizen. can they search all that data without getting a warrant, a warrant that's very specific to probable cause and an affirmation. again, i suspect the answer that we could give to the citizen would be that we can't provide -- we don't -- we can't give a very precise evaluation of that, not knowing how the
concept of information related to an investigation, as has been interpreted and laid out. mr. wyden: my colleague is asking a particularly important question because the director of the national security agency, general alexander, recently spoke at a large technology conference, and he said that with respect to communications from a good guy, which we obviously interpret as law-abiding americans and someone overseas, the head of the national security agency said, and i quote -- "requirements from the fisa court and the attorney general to minimize that to find procedures to protect the individual, the law-abiding americans' rights essentially mean, in the words of general alexander, nobody else can see it unless there is a crime
that's been committed. so if people hear that answer to my colleague's question, which frankly general alexander responded to directly, they pretty much say that's what they were hoping to hear, that nobody is going to get access to their communications unless a crime has been committed. the only problem, i would say to my friend, is nor udall and i have found out that's not true. it's simply not true. the privacy protections provided by this minimization approach are not as strong as general alexander made them out to be, and senator udall and i wrote to general alexander and he said -- i put this up on my web site so all americans can see the response here.
the general said well, that's not really how the minimization procedures worked. these minimization procedures that have been described in such a glowing way and that the privacy protections aren't as strong as we have been led to believe. he may have misspoken and may have just been mistaken, but i'm not sure that the record would be correct even now had not senator udall and i tried to make an effort to follow it up. so i can tell you that at this very large technology conference -- this is not something that was classified. a very large technology conference here recently in nevada, what the head of the national security agency said was taking place with respect to protecting people, in response to my colleagues' questions,
were there emails and phone calls protected, the general says to a big group, they really are unless a crime has been committed, the real answer is that is not correct. mr. merkley: i thank my colleague from oregon for being so deeply invested in this over the years utilizing a fierce advocacy in support of the fourth amendment and i also do want to thank the chair of intelligence for her comments earlier today about secret law and her only concerns about that and willingness to help to work to have the administration provide the type of information that clarifies what -- how these secret opinions interpret statute. and so i -- i thank you very much. my thanks goes to the senator from california, senator feinstein, for that offer. thank you. mr. wyden: i thank -- i thank my
friend. just one last point with respect to this technology, you know, conference where so many people walked away and thought that their privacy was being protected by strong legal protections. general alexander made an additional confusing remark that was in response to that same question with respect to the protections of law-abiding people. general alexander said -- and i quote -- "the story that we, the n.s.a., have millions or hundreds of millions of dossiers on people is absolutely false." now, i indicated this morning, as well, having served on the intelligence committee for a long time, i do not have, madam president, the faintest idea of what anybody's talking about are respect to a dossier. so senator udall and i followed that up as well. we asked the director to clarify
that statement. we asked -- and i quote -- "does the n.s.a. collect any type of data at all on millions or hundreds of millions of americans?" so that, too, is a pretty straightforward question. the questions that senators have been asking about this are not, you know, real, you know, complicated. if you're asking whether the national security agency is addressing these privacy issues, i think it's one of the most basic questions you could ask. does the national security agency collect any type of data at all on millions or hundreds of millions of americans? and if the agency saw fit, they could simply answer that with a "yes" or "no." instead, the director of the agency replied that while he appreciated our desire to have responses to those questions on the public record, there would not be a public response
forthcoming. so to go over the exchange again, the director of the national security agency states -- and i quote -- "the story that we have millions or hundreds of millions of dossiers on people is absolutely false." senator udall and i asked then, does the n.s.a. collect any type of data at all on millions or hundreds of millions of americans? and the agency is unwilling to answer the question. so that's what this debate is all about. is reforming the fisa amendments, you know, act and, in particular, getting enough information so it is possible for the senate to say to our constituents, we are doing oversight over this program. and i think right now, based on what we have outlined over the
last three or more hours, madam president, i think it's clear that on so many of the central, you know, questions, the gap, for example, between the secret interpretations of the law and the public interpretation of the law, our inability to find out whether americans in their wholly domestic communications have had their rights violated, how many law-abiding americans have had their e-mails and phone calls swept up under fisa authorities. responses to these questions that stem from public remarks made by intelligence officials at public conferences, the inability to get answers to these questions means that this senate cannot conduct the vigorous oversight that is our charge. so i expect, madam president, we
will have colleagues coming in with -- with the weather. it's a special challenge to get here from -- from our part of the country. and i would -- i would note the absence of a quorum, madam cha chair. and i believe -- parliamentary inquiry on this. the distinguished chair of the committee already i believe got unanimous consent that the time in a quorum call be allocated to both sides and that was my understanding. is that correct, madam chair? the presiding officer: that is correct. mr. wyden: all right. madam chair, with that, i would yield the floor at this time. the presiding officer: the clerk will call the roll.
the presiding officer: without objection. mr. coons: i ask unanimous consent to speak in general debate under h.r. 5949 and my time to speak be charged against senator wyden. the presiding officer: without objection. mr. coons: in this dangerous world we have an obligation to give our intelligence community the tools and resources that they need to keep us safe. but we also have a fundamental obligation just as great, i believe, to protect the civil liberties of law-abiding american citizens. a right to private communications, free from the prying eyes and ears of the government, should be the rule, not the exception for american citizens on american soil whom law enforcement has no reason to suspect of wrongdoing. and yet, the legislation that we debate on this senate floor today, the fisa amendments act, or the foreign intelligence
surveillance act, amendments act, would reauthorize surveillance authority that most americans, most of the delawareans whom i represent would be shocked to learn that the government has in the first place. under section 702, fisa permits the government to wiretap communications in the united states without a warrant if it reasonably believes the target of the wiretap to be outside of the country and has a significant purpose of acquiring foreign intelligence information. of course communications are by definition between two or more people. so even if one participant is outside our country, the person they're talking to may be here in the united states, and they may well be an american citizen. under this legislation, the government is permitted to collect and store their communications but without clear legal limits on what can be done with this information. they can keep it for an
indefinite period of time. they can search within these communications and use them in civilian criminal investigations. and perhaps most concerning of all to me, they can search information obtained under this act for the communications of a specific individual u.s. citizen without judicial oversight and for any reason. if these are all true, and this is the case, then i am gravely concerned. what is at issue today is the scope of the government's power to conduct surveillance without getting a warrant. the warrant requirement is enshrined in our legal system from the very founding of our nation because we believe in judicial checks and balances. if the government suspects wrongdoing by a u.s. citizen, it must convince a judge to approve a warrant. warrants are issued each and every day in courts across the united states for investigation of potential offenses across the whole spectrum of criminal activity, including crimes
affecting national security. in contrast, surveillance under this act is not required to meet this standard, leaving american citizens vulnerable to potentially very real violations of their privacy. madam president, the balance between privacy and security is an essential test for any government, but it is a vital test for our government and for this country. and this law, in my view, does not contain some essential checks that are supposed to protect our privacy. this law in its current form does contain some checks that i want to review that are supposed to protect our privacy. it requires that the government surveillance program must be reasonably designed to target foreigners abroad and not intentionally require wholly domestic communications. the law requires that a wiretap be turned off when the government knows it is listening
in on a conversation between two u.s. individuals, and it forbids the government from targeting a foreigner as a pretext from obtaining the communications of a u.s. national. all three of these are important privacy protections currently in the law. the problem is we here in the united states senate, and the so citizens we represent don't know how well any of these safeguards actually work. we don't know how courts construe the law's requirement that surveillance be, as i mentioned, reasonably designed, not to obtain any purely domestic information. the law doesn't forbid purely domestic information from being collected. we know that at least one fisa court has ruled that a surveillance program violated the law. why? those who know can't say and average americans can't know. we can suspect that u.s. communications occasionally do get swept up in this kind of surveillance, but the intelligence community has
not -- in fact, they say they cannot offer us any reasonable estimate of the number or frequency with which this has happened. the government also won't state publicly whether any wholly domestic communications have been obtained under this authority. and the government won't state publicly whether it has ever searched this surveillance, this body of communications, for the communications of a specific american without a warrant. for me, this lack of information, this lack of understanding, this lack of detail about exactly how the protections in this act have worked is of, as i said, grave concern. too often, this body finds itself in the position of having to give rushed consideration to the extension of expiring surveillance authorities. the intelligence community tells us these surveillance tools are indispensable to the fight against terrorism and foreign spies, just as they did during
the patriot act reauthorization debate last year. also, as in the case of the patriot reauthorization, the expiration of these authorities, we were told, the impending expiration of these authorities would throw ongoing surveillance operations into a legal limbo, would cause investigations to collapse or harm our ability to track terrorists or prevent crimes. all of these are profound and legitimate concerns. it is precisely because this legislation is so important that it is all the more deserving of the senate's careful, timely and deliberate attention. this kind of serious consideration requires more declassified information on the public record than we have available now. that's why i am supporting the amendments reported by the judiciary committee on which i serve which would help to shine a light on exactly how this surveillance authority is used. it would direct the intelligence community inspector general to issue a public report explaining
whether and how the fisa amendments act respects the privacy interests of americans. this amendment would also give us another chance to amend this f.a.a. after we receive this report by adjusting the sunset not to 2017 but to 2015. this new expiration date would align the sunset of the fisa amendments act with those in the patriot act, allowing for more comprehensive review of both surveillance authorizations. concerns about privacy rights of law-abiding american citizens, as well as the striking lack of current public information, are also why i support senator merkley's amendment to direct the administration to establish a framework for declassifying fisa court opinions about the f.a.a. secure sources and methods vital to the success of our intelligence community must be protected, and i agree with that, and this amendment would do that, but the default, the
default position here ought to be that the legal analysis about the government's use of warrantless surveillance in this country is public rather than hidden from view. i also strongly support senator wyden's amendment to force the intelligence community to provide congress and the public as appropriate with specifics on just how much domestic communication has been captured under the f.a.a., and what the intelligence community does with that information. this amendment simply asks for the most basic information about the practical consequences of the use of the powerful surveillance authorities in this act. to what extent are these authorities being used to discover the content of private conversations by u.s. citizens? what is the order of magnitude? we don't know. to me, this amendment is simply common sense. the delawareans for whom i work, the nation for whom we work
expects that the government cannot listen in on their phone calls or read their emails unless a judge has signed a warrant. if there is a reason why this requirement is not consistent with national security, then i say let the intelligence community make that case and allow us to debate that and consider it in public. it is to me simply not acceptable for the intelligence community to ask us to surrender our civil liberties and then refuse to tell us with any specificity why we must do so, the context and the scale of the exercise of this surveillance authority. in my view, america's first principles demand better. so i thank senator wyden for his leadership on this issue and i thank majority leader reid for assuring we have the opportunity to debate and consider these amendments and the very important issues that they reflect here today. i urge all of my colleagues to consider carefully and then
support these amendments to the f.a.a. we cannot let the impending deadline distract us from the important opportunity to conduct oversight and implement responsible reforms. to simply be rushed to passage when we have known the deadline was approaching for years strikes me as an abrogation of our fundamental oversight responsibility. in my view, this chamber deserves a full and informed debate about our intelligence-gathering procedures and their potentially very real impact on americans' privacy rights, and we need it sooner rather than later. these amendments would allow us to have that conversation and to work together on a path that strikes the essential balance between privacy and security for the citizens of these united states. thank you. with that, madam president, i yield the floor. madam president, i note the absence of a quorum.
the presiding officer: the clerk will call the roll. quorum call: a senator: madam madam presiden? the presiding officer: the senator from kentucky. mr. paul: i rise today -- the presiding officer: there is a quorum call, senator. mr. paul: i ask unanimous consent to vitiate the quorum call. the presiding officer: without objection. mr. paul: madam president, i rise today in support of the fourth amendment protection act. the fourth amendment guarantees the right of the people to be secure in their persons, their houses and their papers and their effects against unreasonable searches and seizures. john adams considered the fight against general warrants or what they called in those days writs
of assistance, he considered this fight to be when the child independence was born. our intelligence and the fourth amendment go hand in hand. they emerge together. to discount or to dilute the fourth amendment would be to deny really what constitutes our very republic. but somehow along the way, we became lazy and haphazard in our vigilance. we allowed congress and the courts to diminish our fourth amendment protections, particularly when we gave our papers to a third party. once you gave information to an internet provider or to a bank. once we allowed our papers to be held by a third party such as telephone companies or internet providers, the courts determined that we no longer had a legally recognized expectation of privacy. now, there have been some dissents over time.
justice marshall disscented in the california bankers association versus shultz case, and he wrote these words -- "the fact that one has disclosed private papers to a bank for a limited purpose within the context of a confidential customer-bank relationship does not mean that you have waived all right to the privacy of your papers. but privacy and the fourth amendment have steadily lost ground over the past century. from the california bankers association case to smith versus maryland to u.s. versus miller. the majority has ruled that your records, once they are held by a third party, don't deserve the same fourth amendment protections. ironically, though, digital records seem to get less protection than paper records. as the national association of defense attorneys has pointed out, since the 1870's, the government must get a warrant to look and read your mail, as is
the case of katz versus the united states, the government has been required to have a warrant to tap your phone. however, under current law, your email, your text messages and other electronic communications do not receive the same level of protection as your phone calls do. why is a phone call deserving of more protection than your email or your text? justice soto mayor in u.s. versus jones, the recent supreme court case that says the government can't put a g.p.s. tracking device on your car without a warrant says this -- "i for one doubt that people would accept without complaint the warrantless disclosure of the government to the government of a list of every web site they have visited in the last week, month or year. i would not assume that all information voluntarily disclosed to some member of the public for unlimited purpose is
for that reason alone disentitled to the fourth amendment protections. justices marshall and brennan, dissenting in smith versus maryland said in emphasizing the dangers in giving up fourth amendment protections, they wrote -- "the prospect of government monitoring will undoubtedly prove disturbing, even thousand those with nothing illicit to hide. many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts." in miller and in smith, the supreme court held that the fourth amendment did not protect records held by third parties. mayor wrote in the jones case that it may be time to reconsider these cases, reconsider how they were decided, that their approach is,
in her words, ill suited to the digital age in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. today, this amendment that i will present, the fourth amendment protection act, does precisely that. this amendment would restore the fourth amendment protection to third party records. this amendment would simply apply the fourth amendment to modern means of communications. emailing and text messaging would be giving the same protections we currently give to telephone conversations. some may ask well, why go to such great lengths to protect records? isn't the government just interested in the records of bad people? well, to answer this question, you must imagine your visa statement and imagine what information is on your visa statement. from your visa statement, the government may be able to ascertain what magazines you read, whether you drink and how much, whether you gamble and how
much, whether you're a conservative, a liberal, a libertarian, whom do you contribute to, who is your preferred political party, whether you attend a church, a synagogue or a mosque, whether you see a psychiatrist, what type of medication do you take. by pouring over your visa statement, the government can pry into every aspect of your personal life. do you really want to allow your government unfettered access to sift through millions and millions of records without first obtaining a judicial warrant? if we have people who are accused of committing a crime, we go before a judge and get a warrant. it's not that hard. i'm not saying we won't be allowed to look through records, but i'm just saying that the mask of ordinary, innocent citizens should not have their records rifled through by a government who does not first have to ask a judge for a warrant before they look at your personal records. we have examples in the past, in our own country, of abuses of
government. during the civil rights era, the government snooped on activists. during the vietnam era, the government snooped on antiwar protesters. in a digital age where computers can process billions of bits of information, we want the government to have unfettered access to every detail of our lives. from your visa statement, the government can determine what diseases you may or may not have, whether you're i am potent, manic, depressed, whether you're a gun owner, whether you buy ammunition, whether you're an animal rights activist, whether you're an environmental activist, what books you order, what blogs you read, what stores or internet sites you look at. do you really want your government to have free and unlimited access to everything you do on your computer? the fourth amendment was written in a different time and a different age, but its necessity
and its truth are timeless. the right to privacy, and for that matter, the right to private property are not explicitly mentioned in the constitution, but the ninth amendment says that the rights not stated are not to be disparaged or denied. james otis, arguably the father of the fourth amendment, put it best when he said one of the most essential branches of english liberty is the freedom of one's house. a man's house is his castle, and while he is quiet, he is well guarded as a prince in his castle. today's castle may be your apartment, and who knows where the information is coming from. it may be paper in your apartment, but it may be bits of data stored who knows where, but there is a reason why we should have our government, why our government should be restrained from invading a sphere of
privacy that is a timeless concept. over the past few decades, our right to privacy has been eroded. the fourth amendment protection act will go a long way to restoring this cherished and necessary right. i hope that my colleagues will consider supporting, defending and enhancing the fourth amendment, bringing it into a modern age when modern electronic and computer information and communications are once again protected by the fourth amendment. thank you, and i reserve the balance of my time. mrs. feinstein: madam president, is the nor going to call up his amendment? -- is the senator going to call up his amendment? mr. paul: madam president? the presiding officer: the senator from kentucky.
mr. paul: i ask unanimous consent to call up my amendment which is at the desk. the presiding officer: without objection, the clerk will report. the clerk: the senator from kentucky, mr. paul, for himself and mr. lee, proposes an amendment numbered 3436. mr. paul: i ask unanimous consent that the reading of the amendment be dispensed with. the presiding officer: without objection. mrs. feinstein: thank you. madam president? the presiding officer: the senator from california. mrs. feinstein: i rise in opposition to this amendment. this amendment is extraordinarily broad. it is much broader than fisa, and in the course of my remarks, i would hope to address how broad it is. it essentially bars federal, state, and local governments from obtaining any information relating to an individual that's held by a third party, unless the government first obtains either a warrant or a consent. this is not germane to fisa, it
has not been rescrewed by the judiciary committee -- it has not been reviewed by the judiciary committee, which would have jurisdiction over this matter. for that reason alone i would vote against it. and also it impedes the timely reauthorization of these amendments. i also oppose the substance of the amendment. the amendment established what is titled "the fourth amendment preservation and protection act." in reality, it seeks to reverse over 30 years of supreme court precedent, interpreting the fourth amendment. in 1967, the supreme court established its reasonable expectation of privacy test under the fourth amendment that was known as katz v. united states. nine years later in a case known as u.s. v. miller, the supreme court held, and i quote, "the fourth amendment does not prohibit the obtaining of
information revealed to a third party and conveyed to him to government authorities." so already you have a supreme court case saying that the fourth amendment does not prohibit this information. this case, miller, involved the government obtaining account records from a bank, but in 1979, just three years after miller, the supreme court took up the issue of third-party collection in a case involving the installation and use of pen registers, which, as everybody knows, is an electronic device that enables law enforcement to collect telephone numbers dialed from a particular phone line without listening to the content of those calls. this case, known as smiths v. maryland, and in it the case held -- and again i quote -- "we doubt that people in general entertain any actual expectation
of privacy in the numbers they dial. all telephone users realize they must convey phone numbers to the telephone company, since it's through the telephone company switching equipment that their calls are completed. all subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial for they see a list of their long-distance toll calls on their monthly bills. telephone users typically know they must convey numerical information to the phone company, that the phone company has facilities for recording this information, and that the phone company does in fact record this information for a variety of legitimate business purposes. although subjective expectations cannot be scientifically gaged, it is too much to believe that telephone subscribers under
these circumstances harbor any general expectations that the numbers they dial will remain secret. this court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." that's the supreme court. more recently in the court's 2012 decision in u.s. v. jones, some justices have questioned whether the time has come to revisit miller and smith in some form. now, perhaps they're right, but this amendment isn't the form they had in mind. under this amendment, it is so broad that the police could not use cell phone data to find a missing or kidnapped child without a warrant or the consent of the missing child -- impossible to get. similarly, they could not ask the phone company to provide the
home address of a terrorist, drug dealer, or other criminal without consent or a warrant. they could not ask a bank if such criminals had recently deposited large sums of money. in fact, as written, this amendment would prohibit law enforcement from looking up the name, address, and phone number of a criminal suspect, witness, or any other person in a copy of the yellow pages delivered to the front door of the police station, unless they obtained a warrant or the consent of the criminal suspect. it is very broad. as i've already stated, the f.a.a. authorities expire in four days. if those authorities are allowed to lapse, our intelligence agencies will be deprived of a critical tool that enables those agencies to acquire vital information about international
terrorists and other important targets overseas, plus what they may be wanting to do in the united states. it is imperative that we pass a clean reauthorization of these authorities without amendments that will hamper passage in the house. i urge my colleagues to oppose this amendment. mr. leahy: madam president in. the presiding officer: the senator from vermont. mr. leahy: madam president, i ask consent to set aside the pending amendments and call up my amendment, which is at the desk. the presiding officer: without objection, the clerk will report. the clerk: the senator from vermont, mr. leahy, for himself and others, proposes an amendment numbered 3437. mr. leahy: i ask consent that further reading be dispensed with. the presiding officer: without objection.
mr. leahy: i apologize for my voice. i spent a little bit too much time in an airplane lately. when -- which i shouldn't say with the distinguished chair of the intelligence committee here, because her commute is a lot longer than a vermonter's commute. but when congress passed the fisa amendments act of 2008, they granted the government sweeping new electronic surveillance powers. we all know if they were abused or misused, they could impinge on the privacy rights of americans. there is no question surveillance powers established in the fisa amendment act have proven to be extraordinarily important for our national security, it is equally clear that those broad sprouse to continue to come -- broad powers have to continue to come with rigorous oversight and privacy
exprosecutes. americans -- and privacy protections. americans cherish their privacy. we have to protect that. that's why the senate should adopt the senate substitute amendment that would allow the government to continue using these authorities but for a period it ensures a strong and independent oversight. the amendment was considered and is reported favorably by the senate judiciary committee last july. i hope senators will support it. i'm leave pleased that senatorse joined me as cosponsors of this amendment. i call on all senators who talk about accountability and oversight to join with us to adopt this better approach to ensuring our security and our privacy. in june, after the senate intelligence committee originated the senate bill to
reauthorize and extend fisa, senator grassley and i asked for a sequential referral, one that would allow the judiciary committee to consider and improve this important legislation, which under the rules we could. the bill that was approved by the intelligence committee provided for a general and really unfettered extension of the expired provisions until june 2017. i hope that we could approve that and we did. i worked with the distinguished chair of the senate intelligence committee to craft a compromise to assure the extension until 2015 you go also add some -- but also add some accountability in the overite oversight provision. i appreciated the senator from california's help and strong words of support for the judiciary committee bill. we adopted the substitute. we reported the bill to the
senate promptly last july, and i did it, madam president, in july so we wouldn't be in this last-minute crunch. i wanted to give the senate plenty of time to consider it. so we wouldn't have to be merely rubber-stamping the house bill. the house bill is longer than that by the senate select committee on intelligence and unnecessarily extended. the senate bill allows existing programs to continue but ensures we revisit them in a more timely fashion. in line with the sunset provisions of the u.s.a. patriot act. now we've seen through our experience with the u.s.a. patriot act that sunset forces congress to reexamine the surveillance powers. if we know we have to actually look at it because it is going to run out, you know what
happens is an amazing thing -- senators actually look at it. senators in both parties. but, more importantly, it forces the administration, whether it is a democratic or republican one, to provide full and accurate information to justify to congress the reauthorization. any administration is going to be willing to kick the ball down the road if they don't have to do anything, if the. if they have a sunset, they do. you know, if these powers are misused, it affects the constitutional liberties of americans, and i don't think we should take our constitutional liberties for granted. there has never been a comprehensive review of these authorities by an independent inspector general that would
give us complete perspective. our senate bill, my substitute amendment, adds some commonsense improvements. we often hear senators speak about the need for vigorous oversight of the executive branch. we hear senators on both sides of the aisle say we have to have an independent inspector general not behold ton a particular ratioagency and we hear senatory we need congress to have its own review. so i ask these same senators this question: when congress is authorized to use a powerful surveillance tool that has the potential to impact so significantly the constitutional rights of law-abiding americans, isn't that exactly the kind of situation that calls for a vigorous, independent oversight? i call on all senators of both
sides of the aisle to talk about accountability and oversight, to adopt this better approach enabling our security and privacy. no one should argue that shortening the sunset or adding oversight provisions somehow hampers the government's ability to fight terrorism. it's not true. all senators should know that neither the 2015 sunset date nor the added oversight provision have any operational impact on the work of the intelligence community. no one -- and i shall repeat. i've asked -- no one from the administration has ever said to me that these provisions cause any operational problems for the intelligence community. so that gives us a simple choice. we can enable the intelligence community to continue using these authorities until 2015 with commonsense improvements, or the senate can say, well, the
senate has no responsibilities. we'll simply rub he stamp the house -- we'll simply rubber stamp the house bill to extend these powerful authorities for another five years without a single improvement nor accountability. as an american, as a vermonter, the choice is simple for me. to fulfill our duty to protect the civil liberties of the american public or continue to provide the intelligence community with tools to help people america safe. that's what this bill does. and i urge senators to adopt this balanced, commonsense approach. and, madam president, as i'm going to have to preside in just another minute, i would ask consent that my full statement be placed in the record as
though read. the presiding officer: without objection. a senator: madam president? the presiding officer: the senator from california. mrs. feinstein: madam president, in listening to the distinguished chairman of the judiciary committee and also reading the amendment, there are parts of this amendment to which i would agree. however, this is a house bill. the main part of which is on the length of the authorization. five years versus two and a half years. and before us is the five-year authorization period, which the house has already passed, and we have four days before the amendments essentially end. so i cannot support that shorter time, but support the five-year part. the part of the chairman's bill that i do agree with is the expanded mission of the
inspector general, and in this regard, and since the chairman is now becoming the president in rapid promotion, i will be happy to address my remarks to him. and mr. president -- mr. chairman, i want you to know that we have spent large amounts of time on this particular section. we have required semiannual attorney general d.n.i. assessments of this section, every six months they assess compliance with the targeting and minimization procedures. we require the inspector general of justice and the i.g. of every element of the intelligence community authorized to acquire foreign intelligence information to review compliance within this
section. in addition, the i.g.'s are required to review the number of disseminated intelligence reports containing a reference to u.s. person identity and the number of u.s. person identities subsequently disseminated. it requires annual reviews by agency heads of this section. it requires a semiannual attorney general report every six months to fully inform the congressional intelligence and judiciary committees. there's another semiannual report to the committees, and there are provisions of documents relating to significant construction or interpretation of fisa. i would say that there -- nowhere is there more reporting requirements than on this
section 702 within the jurisdiction of the intelligence community. i would also tell you that we have hadder hearings with every d.n.i., with attorney general holder, with director of f.b.i. moler on how this is carried out. i will also tell you that the staff spends countless hours going over the reports in meetings with representatives of the departments. however, i think you have a good point on section 56, 6, up to line 6 on page 7. and what i would like to do with this is take that part of the bill and see how it conflicts with what we're doing, whether it does or not. and if it doesn't, add it to our authorization bill of next year.
and so i would urge that your staff and our staff could perhaps work together to see that that gets done properly. the real reason to oppose all of this is within four days. if this -- i remember the vote in judiciary very well. if it had come to the floor then, it might have been a different thing, i don't think it would have been but here we are where we are with a five-year bill in front of us and four days to complete this hearing. so i would, as i'm opposing all amendments, i would respectfully -- and not quite sorrowfully but almost -- have to oppose your amendment with the caveat that i added. we will look in deference to and your chairmanship of the judiciary committee, our staff will work very closely with yours. if this is not present in what we do today, we will add it in an authorization bill.
so i thank you for that and i yield the floor. a senator: mr. president? the presiding officer: the senator from oregon. mr. wyden: thank you, mr. president. first i would just like to strongly support your amendment, mr. president. it seems to me given how little most members of congress know about the actual impact of the law, the shorter extension period as envisioned by the distinguished chairman of the judiciary committee makes a lot of sense. i also think it makes sense to have the intelligence community inspector general conduct an audit of you howe the fisa amendments act authority has been used. and once again, we've had this discussion about how much everybody already knows about how the nasa amendments act -- fisa amendments act affects the operations of this program and law-abiding americans.
i would just have to respectfully disagree, and i would ask senators as we've touched on in the course of the afternoon, whether they know if anyone has ever estimated how many u.s. phone calls and emails have been warrantlessly collected under this statute. senator udall and i have asked this very simple question: has there been an estimate? not whether there is going to be new work, whether there are going to be difficult assignments. we asked has there ever been an estimate of how many u.s. phone calls and emails have been warrantlessly collected under the statute? and we were told in writing that we were not going to be able to get that information. i think senators also ought to ask themselves whether they know if any domestic phone calls and
emails, what are wholly domestic communications have been conducted under this statute. i think they will also find they don't know the answer to this question. and i think senators also would want to know whether the government has ever conducted any warrantless back-door servings for americans' communications. so when we have the argument that has been advanced several times in the course of the day that we already know so much, we really don't need all these amendments and it's just going to delay the passage of the legislation, i would urge people to go to my web site in particular and look at what we have learned from the intelligence community which is in response to request after request, particularly the request of a tripartisan group of senators asking i think
really yes or no answers. has there been an estimate, for example, of how many law-abiding americans have had their communications swept up into these fisa authorities, and our inability to get that answer makes it clear that one -- when one talks about robust oversight under this legislation, the reality is that there is an enormous lack of specifics with respect to how this legislation actually works. so i would only say in response to the amendment offered by the presiding officer, senator leahy, the chairman of the judiciary committee, i think histh -- i think his amendment is very appropriate, given how little is known to me, it is one of the fundamental pillars of good, you know, oversight because you
don't just grant open-ended kind of authorizations when you lack so much fundamental information about how this program works and particularly how it would affect law-abiding americans. and with that, mr. president, i yield back. mrs. feinstein: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
from brian schatz, the lieutenant governor of the state of hawaii, and that letter is a resignation letter. i ask unanimous consent that the senator-designee schatz resignation letter be printed in the record. the president pro tempore: without objection, so ordered. it will be printed in the record.
the vice president: the chair liz before the senate a certificate of appointment to fill a vacancy presented by the death of the late senator daniel inouye of hawaii. the certificate, the chair is advised is in a form suggested by the senate. if there is no objection, the reading of the certificate will be waived and it will be printed in full in the record. if the senator-designee will submit himself to the desk the chair will administer the oath of office.
the vice president : do you solemnly swear that you will support and defend the constitution of the united states against all enemies, foreign and domestic; that you will bear true faith and allegiance to the same; that i will bear true faith and that you take this obligation freely, without any mental reservation or purpose of evasion; and that you will well and faithfully discharge the duties of the office on which you are about to enter, mr. schatz: i do the vice president: congratulations senator.
mr. reid: mr. president? the president pro tempore: the majority leader. mr. reid: on behalf of the entire senator, i welcome senator-designee brian schatz to the united states senate. i congratulate him on this appointment to fill the seat of the late senator dan inouye, who as we all know, was an institution in and of himself.
once he is sworn in, the designee will be one of the youngest senators in this body. nevertheless, he has a long history of serving the state of hawaii. prior to entering politics, the senator-designee served for eight years as c.e.o. of helping hands hawaii, one of hawaii's largest nonprofit social services organization. he's also served four terms in the hawaii assembly house of representatives and served until just a few minutes ago as the lieutenant governor of the state of hawaii. having been a lieutenant governor, he has experience as a legislator and then as one of the presiding officers of the entire senate, speaks of itself as helping prepare for this job he has here. he will build upon the foundation laid during senator inouye's five decades of representing the state of hawaii. while no one can fill the shoes of our friend, senator inouye,
brian schatz is a young man with a future full of promise and opportunity. mr. president, i would ask unanimous consent that the senator from hawaii, senator akaka, now be recognized. the president pro tempore: the senator from hawaii. the senior senator from hawaii, senator akaka. mr. akaka: mr. president. the president pro tempore: the senator from hawaii. mr. akaka: mr. president, i rise today to welcome hawaii's new united states senator, brian schatz. brian is a leader for hawaii's present and for our future, and i welcome him with much aloha, which is with warm love. i also welcome and congratulate senator schatz's wife, linda,
the children tyler and mia, and his brother and senator schatz's proud parents, dr. irwin and mrs. barbara schatz. senator schatz arrived in washington during a sad time. as we continue to mourn the loss of our champion, senator dan inouye. dan inouye will always be a legend in hawaii. we will never be -- he will never be replaced. at dan inouye's memorial service in honolulu this past weekend, i was reminded of how many people he touched in hawaii and across the country. we must honor his legacy by
working together for the people of hawaii. i thank brian for volunteering for this incredible responsibility. he only learned of his appointment yesterday and did not have any time to spare. so he hopped on air force one and flew straight to washington to be sworn in here today. we need him here now because we are facing a major challenge, one that, regrettably, has been created by congress in our inability to thus far compromise. the looming spending cuts and tax increases known as the fiscal cliff must be fixed within the next five days.
thank you, brian, for accepting this challenge. i'm here to help you in any way i can. while there are other talented leaders in hawaii who stepped forward and who would also have been excellent appointees, i know that my colleagues will join me in supporting senator bryan schatz for the good of hawaii. throughout my 36-year career in congress, the hawaii delegation has always been unified. we have always put hawaii first before our individual ambition. we must continue that. hawaii comes first. i have followed brian schatz's career for many years. he was an active member of the
hawaii statehouse of representatives for eight years before becoming c.e.o. of helping hands hawaii, a nonprofit organization that provides human services in the islands. as lieutenant governor, he has been a big part of the community. he has been an outspoken supporter of our troops and veterans and defender of our environment. senator schatz will be a strong, progressive voice for hawaii in the united states senate. he will represent freedom and equality. he will be a strong voice on climate change, expanding clean, renewable energy and protecting our precious natural resources. he will defend our native
hawaiians and all of our nation's first people, those americans who exercise sovereignty in lands that later became part of the united states. he will uphold the values and priorities of our unique state. i say to my friend, the new junior senator from hawaii, never forget that you are here with a solemn responsibility to do everything you can to represent the people of hawaii, to make sure that their needs are addressed in every policy discussion, to speak up and seek justice for those who cannot help themselves. god bless you, senator schatz. god bless hawaii. god bless the united states of
america. mr. reid: mr. president? the presiding officer: the senator from nevada. mr. reid: before my friend from hawaii leaves the floor, we have all come and given speeches -- one of us at least -- about you, but we haven't had a lot of people on the floor when we have done that. your presentation right now is typical for dan akaka. never a word about you, always about somebody else. and if the new senator has the qualities of you, the kindest, gentlest person i have ever served in this body with, it's something that he should strive. the shoes that he has to fill, we all know, akaka and inouye, are significant to fill, but he can do that. for you, senator akaka, with these people on the floor, we're going to miss you so much. you are a wonderful human being and have been a great senator. mr. akaka: i yield the floor, mr. president. the president pro tempore: the clerk will call the roll.
the president pro tempore: the senator from missouri. a senator: mr. president, i ask unanimous consent that the quorum call be dispensed with. the president pro tempore: without objection, so ordered. mr. blunt: also on two things that don't relate to my comments about the federal intelligence surveillance act, i'd like to say it's a great honor for me to be able to speak on the floor the first time with the president of the senate in the seat as the president pro tempore of the senate. i know you're going to lead this body well, and you have served with great dignity and it's -- it's an honor to be here with
you on this day, even if it is december 27, 2012. and even though we're, of course, all continuing to think about the former president pro tempore and the services for him that were just committeed. i'd also like to say i was here when the new member from hawaii was sworn in and listened -- listened to mr. akaka's comments . my great respect for him and the quiet dignity that he brings to everything that he does, from weekly demonstrations of his personal faith, which i share with him, to his name being mentioned the very first time all these quorum calls have gone on now for, i assume, all the time he has been in the senate, going back to 1981, but we will miss him as we will miss his colleague from hawaii.
we welcome his new colleague today, and i get to welcome you personally and with heartfelt appreciation as the new president pro tempore of the senate. following that, mr. president, i want to speak on the importance of extending the federal intelligence surveillance act, the amendments act i think it's called. while i was serving the house in 2008, this act had actually -- the federal intelligence surveillance act had lapsed, and we were not doing the things we should be doing. i was able there to work with my good friend steny hoyer who was the majority whip at the time, i was the minority whip at the time, and we had held the reverse of those jobs in the previous congress. i liked my role as majority whip better, but mr. hoyer and i were able to work together, particularly with my predecessor
from missouri, senator bond, and senator rockefeller. senator bond was the vice chairman of the intelligence committee. senator rockefeller was the chairman. as we tried to negotiate how we would extend the fisa amendments act. my colleagues here today, many of them remember the challenge we faced in getting that bill done, and many of them, including the chairman, the current chairman of the senate intelligence committee, know the importance we place on the work that is done every day under the federal intelligence surveillance act. at the time in 2008, we had a really very concrete set of examples of what would happen without fisa because, frankly, we were effectively without it. for periods of time in 2007 and 2008, the national security agency was unable to fully
perform its mission in monitoring many of the activities of known terrorists who were overseas, and particularly found it impossible to focus in on new targets, and again those are known terrorists not in this country. it was wrong that congress allowed the act to lapse, and it would be dangerously wrong if we let it happen again on december 31 of this year. five years ago, i sat through many disturbing intelligence briefings. i remember the sense of urgency expressed by the then-director of the national intelligence mike mcconnell, the then-c.i.a. director michael hayden, the attorney general at the time, michael mukasey, as they discussed the consequences that we would have to deal with if we continued not to move forward and put this act back in
place. the agreement we reached balanced the concerns of those who feared that the national security agency had overreached with the other balance was the ongoing authority that the intelligence community needed to protect the country. that agreement is before us again to be reauthorized for another five years. the fisa amendments act protects individuals in the united states from so-called reverse targeting. it's one of the concerns people had five years ago. this would be a process which in theory could be used to monitor the communications of american citizens under the guise of spying on terrorists. it also continues to ensure that any communication originating in the united states caught in the fisa process is minimized. now, what does that mean? it means it's handled in a way that american communications
can't be examined unless they have further justification. meanwhile, the bill updated the antiquated way we monitor terrorist communications, ensuring that our intelligence professionals no longer had to spend countless hours trying to figure out whether an overseas terrorist communication are traveling over fiber-optic wires or through a satellite. i'm concerned that the amendments we're looking at here not only disrupt the delicate balance we struck in 2008 but also they mean that this act doesn't get extended. the house has voted on a straight extension. the only thing standing between the continuation of that 2008 hard-fought and i think properly balanced agreement is a senate vote on what the house has passed. i will be voting against the amendments. i think some of these amendments are well intended.
in fact, if they weren't part of this bill, studies and other things are being proposed might very well be worth doing but not worth doing in a way that would allow fisa to expire in just a few short days. i'm pleased to have been able to serve in the house and the senate select committee on intelligence and witnessed firsthand the important role that fisa plays in protecting our country. i'm thankful for the intelligence professionals who serve our country both here in the united states and overseas. and i hope as they observe this debate we're having about fisa they see a congress that supports them, supports their families, and supports their important work. unless the world changes, mr. president, and hopefully it will change, but unless it changes, we should never allow our ability to track terrorists overseas to go dark again. that's why it's critically
important we pass this bill in the next -- in the next few hours, why we extend fisa for another five years and give our intelligence professionals the tools they need to protect our country and frankly give the congress, the president and most importantly the american people the obligation to look at this authority again in five years and see if we still need it. today we need to extend the foreign intelligence surveillance act as it's been amended and i hope, madam president, that we do that, and i would yield back whatever time i might have. a senator: madam president? the presiding officer: the senator from colorado. a senator: i would be happy to defer to the vice chairman of the intelligence committee.
the presiding officer: the senator from georgia. mr. chambliss: i rise in support of h.r. 4959, the fisa amendments reauthorization act of 2012. and before i speak on it as vice chairman of the intelligence committee, i want to just say this bill, along with the many other products that have come out of the intelligence committee, have been put together in a strong bipartisan way under the leadership of our chairman, senator feinstein, who has been a great advocate for the national security of the united states and a great advocate for our men and women in the intelligence community, and i would be remiss if i didn't say as we conclude this year which is the second of the two years that i've been vice chairman of what a privilege and pleasure it's been to work with her and i thank her for her leadership on this and all of our issues that we worked on together. this bill, which passed the
house with broad bipartisan support, provides a clean extension of the fisa amendments act until december 1, 2017. earlier this year with strong bipartisan support, the intelligence committee also reported a bill with a clean extension although it had a slightly earlier sunset of june 1, 2017. so we have two bills, one from each chamber that recognizes the f.a.a. must be reauthorized over the next -- for the next five years. both bills also confirmed that there should be no substantive changes to the f.a.a. itself. the time is running short before these vital authorities expire as they expire on december 31, so it makes the most sense for the senate to simply pass the house bill and send it to the president for his immediate signature so that we have no gap in collection on those who seek to do us harm as they are out
there every day seeking to do that. as we debate the merits of passing a clean extension of the f.a.a., i think it's important to remember why the f.a.a. is so necessary. the terrorist attacks by al qaeda on september 11, 2001, highlighted a significant short pall -- shortfall in our ability to collect intelligence information against certain overseas targets. our intelligence community took operational measures to address that shortfall, but eventually realized that additional fisa authorities were needed to fully address the problem. more than five years ago, after an adverse ruling from the foreign intelligence surveillance court, the director of national intelligence requested that congress act immediately to stem the sudden and significant reduction in the intelligence community's capability to collect foreign intelligence information on overseas targets.
so congress responded. first with the protect america act of 2007, and then with the fisa amendments act of 2008. by providing a statutory framework for acquiring foreign intelligence information from overseas targets, the f.a.a. has enabled the intelligence community to identify and neutralize terror networks before they harm us either at home or abroad. while i can't get into specific examples here, i can say definitively that these authorities work extremely well. i encourage all of my colleagues to go to the intelligence committee spaces and review the classified materials provided by the intelligence community. these materials give the classified examples that clearly demon strafortd -- demonstrate the f.a.a.'s success. let me briefly highlight what
some of these authorities do. under section 702 the government may target persons reasonably believed to be outside the united states for the purpose of acquiring foreign intelligence information. however, there are a number of important limitations on this authority that are designed to ensure that this section 702 collection cannot be used to intentionally target a u.s. person under what we call reverse targeting within the community. these acquisitions are authorized jointly through a certification by the attorney general and the director of national intelligence and are approved by the fisa court. now, the plain language and legislative history of section 702 make clear that congress understood there would be incidental collection of one end domestic and u.s. person communications. there has to be. ft we impose an upfront ban on
the collection of such communications we could never do the acquisition in the first place because it is often impossible to determine in advance about an,,whether an unknown target overseas is in fact a u.s. person. so we need the broad -- quote -- "any person" -- close quote authority at the outset to ensure that the acquisition can occur in the first instance. moreover, congress also understood that this incidental collection would likely provide the crucial lead information necessary to thwart terrorists like the 9/11 hijackers who trained and launched their attacks from within the united states. but because of legitimate concerns about the privacy of u.s. persons, congress also placed specific safeguards on section 702 collection, including review and approval by the fisa court of the a.g.
a.g.-d.n.i. targeting and minimization procedures, a requirement that all acquisitions be consistent with the fourth amendment, and explicit prohibitions against certain conduct like intentionally targeting a u.s. person. because there are instances, however, in which we may need to target u.s. persons overseas who have betrayed their country as terrorists or spies, the f.a.a. does include specific ways to do this. similar to the authorities in title one of fisa, section 703 and 704 allow the fisa court to authorize collection against certain u.s. persons overseas. before the f.a.a., this type of collection was authorized by the attorney general and not by a court. the f.a.a. enhanced the protections for u.s. persons by requiring individual fisa court
orders based on probable cause at the u.s. person is a foreign power, agent of a foreign power or an officer or employee of a foreign power. as i understand it, most of the actions to the f.a.a. relate to section 702 and would what we call incident ll -- incidental collection. i recommend again my colleagues review the unclassified f.a.a. background paper that was sent by the a.g. and by the d.n.i. to congress last february. that document was earlier made a part of the record at my request. this paper describes the f.a.a. authorities in some detail and it highlights the layers of yoamptd by all three branches -- oversight by all three branches of government. these oversight mechanisms are there primarily to protect u.s. persons, and i can tell you firsthand from my work on the intelligence committee on both
the house and the senate side that it is sig russ oversight -- sig russ oversight. every -- vigorous oversight. every aspect is looked at closely by the executive branch, from the person them responsible for operating the system up through the man jeer natural chain of command to the relate vanities inspectors general and all the lawyers at in the division at the department of justice and the agencies responsible for f.a.a. implementation. and twice a year congress gets reports on its implementations. as well as other briefings and other reports that are given to congress. the judicial branch, the fisa court, plays its own key role by reviewing the certifications and the targeting and minimization procedures and ensuring all of those comply with the law. now, i can't say that the
implementation of the f.a.a. has been perfect. certainly there have been a few mistakes along the way over the past several years. sometimes technology doesn't always work the way it's supposed to and sometimes there's a disconnect between the way a collection device actually works and the way it's been described by the lawyers. but i can tell you on those few occasions when something hasn't been quite right, with how these authorities about have been used, the oversight mechanism put there in place by the f.a.a. have worked exactly as intended toy bye congress. when a problem arises, the justice department knows about it, the fisa court knows about it, and congress knows about it. and the collection related to the problem stops until the problem gets fixed. in my experience the f.a.a. is one of the most tightly overseen activities twip the intelligence community. i know some people believe more
oversight is needed but i don't think there is justification for that. i'm concerned that if we add more i.g. reviews, for example, that we run the risk of taking scarce resources away from actual analysis and operations. that's not the right course, specially when we know the existing oversight mechanisms are working so well. these f.a.a. authorities are simply too important to lose. we have a bill before us that has passed the house and can be sent straight from this body to the white house for signature by the president. and the president has said that he will sign the house bill as soon as he receives it from this body. i urge my colleagues to join me in voting for a clean extension of the fisa amounts act until december 31, 2017.
and i would yield the floor. the presiding officer: the senator from colorado. mr. udall: i ask unanimous consent to speak for up to 30 minutes and that be under the time allotted to senator wyden. the presiding officer: without objection. mr. udall: madam president, i rise as many of us have today to talk about the foreign intelligence surveillance act. before i get to the substance of my remarks i wanted to acknowledge the great work the chairwoman and the vice chairman provide for the committee. we wouldn't be here today without their focus and their commitment to maintaining the best intelligence community i believe in the world. i also want to thank my colleague, senator wyden and the others who have spoken today on the floor about the renewal of the authorities under the fisa amendments act. and i would suggest that most americans likely do not recognize the name of the bill but i'm certain that they've
heard about what this bill addresses and that's government surveillance of communications. and this is an issue that's critical to get right because if it's done wrong,, yrk strike at the core of our constitutional freedoms. so i want to thank our senate leadership today for providing us time to discuss what's a very important issue. and i might suggest that the topic at shand important enough to require multiple days of debate but given the gravity and the number of issues we must confront before the end of the year i'm grateful for this debate and discussion we're having for most of this day, frankly. some observers may even question why we're treag even this limited amounts of time to debate here in the senate we expect to pass easily. the truth is even though many senators are likely to vote for this bill, it's uncomplete and it needs reforms. and, in fact, part of the
reason this debate is so important is because i believe that congress and the public does not have an adequate understanding of the effect that this law has had and could have on the privacy of law-abiding american citizens. this is an important subject much it is an important question, and that's why a number of us have tang to the floor today to spend some time highlighting the issues at hand in the hopes that our colleagues will join us in striking the right balance, one that preserves foundational values and constitutional liberties while still allowing us to effectively and forcefully prosecute our war on terror. madam president, i was a member of the house in 2008 when the fisa amendments act passed congress and was signed into law. i voted for it then, along with most of my democratic colleagues in the house. in march of 2008, many of us in
the house viewed the fisa amendments act or the f f.a.a. s an improvement over the status quo. why was that so? it was because it put a legal framework around president bush'presidentbush's warrantlesg program and it updated the foreigforeign intelligence surveillance act to changes in technology and to hold that administration accountable. as i noted four years ago during that debate, the bill also included important provisions that for the first time required intelligence agencies to seek a judge's permission before monitoring the communications of americans overseas. that meant that the federal government could no longer monitor the e-mail or phone calls of americans oversees without a warrant. -- overseas without a want. i'm going it talk a lot about warrants and the check that they provide on government overreach.
that was an important part of that debate in 2008. and back in that year, back in 2508, it was senator wyden, who is here on the floor today, who was instrumental in including that particular provision in the final nice is fisa amendments t legislation. from the perspective of a house member at that time, i was pleased and glad and appreciative that we had senator wyden's leadership right here in the united states senate. i now have the great privilege to serve on the senate intelligence committee with senator wyden, and i have to admit from the position i now have that i'm viewing the fisa amendments act through a different lens. as a member of that committee, i've learned a great deal more about our pos post-9/11 surveile laws and how he have they've been implemented. in the course of my two years on the committee, i have determined that there are reforms that need to be made to the fisa amendments act before we renew it into law.
as we prepare to renew the fisa amendments act for the sirs time since 2008, it is important that we take this imto address several flaws that have become apparent to me and a number of our colleagues. fofortunately, the sunset provision in the original bill effectively provides us with that opportunity, so that today we can ensure that the statute still tracks with our foreign intelligence requirements and the interests of the american people. in addition to remain an effective law, the net provision helps ensure that the fisa amendment ac act keeps up with today's technologies. let me be clear that i strongly believe that for our national security the federal government 23450ed needs neighs which to monitor communications, to ensure that we remain a step ahead of our enemies and of terrorists. i also strongly believe that we need to balance the civil
liberties embodied in our constitution with our ongoing fight against terrorists. and we need only look to recent history to understand why congress needs to keep a tight rein on these surveillance efforts. it was in the months after 9/11, just shortly after 9/11, that president bush first authorized what we now refer to as the secret "wireless wiretapping program." many legitimate concerns were raised about that program, and congress wisely went back and put some limits on it in that 2008 law. but we have an opportunity to discuss today whether those limits went far enough and whether the circumstances that prompted the creation of the program in 2001 and its passage into law in 2008 still justify its existence today. i'm a member of both the armed services and the intelligence committees, and i am i'll be the first to say that terrorism
remains a serious threat to the united states, and we must be as diligent as ever in he can prosecuting our fellow american citizens. i can also say with confidence that the fisa amendments act has been beneficial to the protection of our national security. in the senate intelligence committee, i receive regular briefings on our efforts to combat terrorism abroad and here at home in the united states, including the benefits and accomplishments of the fisa amendments act. i think the threats -- i should say, i don't only think, i know the threats today do justify the extension of these authorities. i don't question the value of the foreign intelligence that the f.a.a. provides. but my question to my colleagues and the administration is whether a five-year straight extension of these authorities, without any changes, is the best way forward? and, madam president, in my view, it is not.
i recognize that even after osama bin laden's death we still face numerous threats. make no mistake about it, terrorism is a serious threat to our homeland and to american lives. and terrorism has also forced us to have a conversation about our civil liberties and the balance between our privacy and the need to confront threats to our nation. i strongly believe that our commitment to protect the american people should not force us to abandon the foundational principles that make us a beacon for the rest of the world. this is a false choice. we must, as the federal government and protectors of our constitution, protect the constitutional liberties of the american people and live up to the standard of transparency that our democracy demands. as i mentioned, madam president, i'm the only senator on our side
of the aisle that serves on both the intelligence and the armed services committee. and i believe i have a unique perspective when evaluating the critical balance between protecting our national security and the rights of american citizens. it is the responsibility of congress to find that balance between the will of the many and the rights of the few. the security of the country and the freedom of its citizens. in times of war and crisis, finding this balance is a delicate balance, can be even more challenging and there are unfortunately times in our nation's history when we've lost sight of our principles and what the united states represents as a nation. i understand that the law requires the intelligence community to conduct oversight of f.a.a. implementation, that the foreign intelligence surveillance court reviews the
legality of the procedures, and that the congressional intelligence committees conduct our own oversight of fisa programs. but nearly all of this oversight is conducted in secret, and i know my constituents trust me to conduct this oversight, but i believe the people, too, have a real in keeping a watchful eye on the government. as senators rockefeller and wyden wrote in a letter to the bush administration officials in 2008, "secrecy comes with a cost which can," and i want to quote these two valued and wise senators -- quote -- "make it challenging for members of congress and the public to determine whether the law adequately protects both national security and the privacy rights of law-abiding americans." end of quote. so, madam president, with that general overview, i want to talk about some of the specifics in
this particular bill that we are considering today. i want to get to the core of my concerns. as my colleagues know, section 702 of the fisa amendments act established a legal framework for the government to acquire foreign intelligence by targeting non-u.s. persons who are reasonably believed to be located outside the united states under a program approved by fisa. and the fisa corks i shoul courd add. because section 702 does not include obtaining individual warrants, it includes language specifically intended to limb the government's ability to use these new authorities to deliberately spy on american citizens. earlier this year, senator wyden and i opposed the bill coming out of the intelligence committee extending the expiration date from december 2012 to june 2017.
we opposed this long-term extension because we believe that congress does not have an adequate understanding of the effect that this law has had on the privacy of law-abiding american citizens. in our view, it's important for members of congress and the public to have a better understanding of the foreign intelligence surveillance conducted under the f.a.a. so that congress can consider whether the law should be modified rather than simply extended without changes. this has been a long-standing quest for a number of us. in fact, while i have a been outspoken on this issue, the effort to better o understand te f.a.a.'s implementation precedes my time on the senate intelligence committee. senator i would denie wyden ande been pressing the committee for years to pri more information to congress and the public about the effect of this law on americans' privacy. and i think senator wyden and
others would agree with me that to his credit the director of the national intelligence community in july 2012 agreed to classify some facts about how the secret fisa court has ruled on this law. so what did we learn from that declassification? well, specifically it's now public information that on at least one occasion the fisa court has ruled that some collection carried out by the government under the fisa amendments act violated the fourth amendment, and the court has also ruled that the government has circumvented the spirit of the law. madam president, so much about this law's impact remains secret. what do i mean by that? well, for example, senator wyden and i and others have been trying to get a rough estimate of how many americans have had their phone calls or e-mails collected and rye viewed under these -- and reviewed under these authorities. the office of the director of intelligence told us in july
2011 that it is -- quote -- "not reasonably possible to identify the number of people located in the united states whose communications may have been reviewed under the fisa amendments act." now, we're prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for us to believe that the director of national intelligence and the whole of the intelligence committee cannot come up with at least a ballpark estimate. this is disconcerting. our concern about numbers is this: if no one has even estimated how many americans have had their communications collected under the fisa amendments act, then it's possible that this number could be quite large. so how do we respond in during a markup in our committee, we offered an amendment that would have directed the inspectors general, the intelligence committee and the department of
justice to produce a rough estimate of how many americans have had their communications collected under section 702. our amendment did not pass, but we will continue our efforts to obtain this information because the american people deserve to know. madam president, there are those who are satisfied with the law's current privacy collections and they pontes out that classified minimization procedures guide how government officials handle information on americans' communications. but i don't believe those procedures are a substitute for strong privacy protections incorporated into the law itself. do we really want accountability for those protections to be secret? do we really want to be dependent on the good will of future administrations to keep faith with so-called minimization procedures? that's why i believe the fisa
amendment's act's extension should include clear rules prohibiting the government from searching through the incidental or accidental collection of these communications unless our government has obtained a warrant or emergency authorization permitting surveillance of that american. our founding principles demand no less. senator wyden and i offered an amendment during the committee's markup of this bill that would have clarified the law to prohibit such searches. our amendment include exceptions for searches that involve a warrant or an emergency authorization as well as for searches on phone calls or e-mails of people who are believed to be in danger or consent to the search. each of which is important. our amendment to close this backdoor search loophole did not pass in committee. but we remain concerned, very
concerned, that this loophole could allow the government to effectively conduct warrantless searches for americans' communications. especially since we do not know how many americans may have had their phone calls and e-mails collected under this law, we believe that it's particularly important to have 12r07bg rules -- to have strong rules in place to protect the privacy of our fellow americans. as the majority report noted when the senate bill passed out of the committee -- and i want to quote -- "congress recognized at the time that the fisa amendments act was enacted that it is simply not possible to collect intelligence on the communications of a party of interest without also collecting information about the people with whom and about whom that party communicates including in some cases nontargeted u.s. persons." therefore, i understand that in scooping up large amounts of data, it may be impossible not
to accidentally catch some americans' communications along the way. it seems logical. in the language of the law, the collection of foreign intelligence of u.s. persons reasonably believed to be located outside the united states anticipates that incidental or accidental collection of americans' e-mails and phone calls would, in fact, occur. but under the fisa amendments act as it's written, there's nothing to prohibit the intelligence community from searching through a pile of communications which may have been incidentally or accidentally collected without a warrant to deliberately search for the phone calls or e-mails of specific americans. and again, i understand. i think i can speak for senator wyden and others of us who have this concern that this could happen by accident, but i don't think the government should be doing this on purpose without getting a warrant or emergency authorization on the american
that they are looking for. madam president, i've noted that senator wyden and i call this the backdoor searches loophole, and understandably the intelligence community doesn't much like that term, arguing that there's no loophole. but i think we're just going to have to agree to disagree on the terminology. i don't believe, though, that congress intended to authorize these searches when they voted for the fisa amendments act in 2008. i know i certainly didn't. but the intelligence agencies have not denied that section 702 gives the n.s.a. the authority to conduct these searches and it is a matter of public record that the intelligence community has sought to preserve this authority. if it is not classified that intelligence agencies have this authority and it is not classified that they would like to think it, we think it's reasonable to tell the public whether and how it has ever been used.
yet when senator wyden and i and 11 other senators asked whether intelligence agencies have already done this, we were told the answer was classified. so my concern is that this section 702 loophole could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of american citizens. the senate intelligence committee majority report argues that there may be circumstances in which there's a legitimate foreign intelligence need to conduct queries on data already in its possession, including data from accidentally or incidentally collected communications of americans. i would argue that if there's evidence that an american is a terrorist or spy involved in a serious crime, the government should be permitted to search for the communications of that american by getting a warrant or an emergency authorization.
so in that spirit, senator wyden and i have offered this backdoor searches loophole amendment once again to this bill and we intend to continue to bring attention to this issue until our colleagues grasp what could be at stake should this loophole not be closed. we've also filed a second amendment which seeks to instill some transparency to surveillance conducted under fisa amendments act authorities. what's included in this amendment? well, it requires the director of national intelligence to provide information to congress that we requested before but that we have not yet received, including a determination of whether any government entity has produced an estimate of the number of u.s. communications collected under the fisa amendments act, an estimate of such numbers, if any exist, an assessment of whether any wholly domestic u.s. communications have been clejtd unde collectede
fisa amendments act, a determination whether any intelligence agency has ever attempted to search through communications collected under the fisa amendments act to find the phone calls or the e-mails of a specific american without obtaining a warrant or emergency authorization to do so, and, finally, a determination of whether the n.s.a. has collected any type of personally identifiable information on more than 1 million americans? the amendment states that the report produced by the director of national intelligence shall be made available to the public but it gives the president the authority to make any redactions that he believes are necessary to protect national security. colleagues, i'm going to conclude by restating my belief that the american people need a better understanding of how the fisa amendments act section 702 in particular have affected the privacy of our fellow americans. i also believe we need new protections against potential
warrantless searches for americans' communications. and i believe without such reforms, congress should not simply extend the law for five years. we need to strike a better balance between giving our national security and law enforcement officials the tools nose keep us safe but not damaging the very constitution we have sworn to support and defend. national security and civil liberties can coexist. we do not need to choose between them. in federalist 51, james madison stated -- and i'd like to quote that great american -- "in framing a government which is to be administered by men over men, a great difficulty lies in this. you must first enable the government to control the governed and in the next place oblige it to control itself."
the bill that is before us today could come closer to that standard if we improve it through some of the amendments being offered by my colleagues and me. but it does not live up to that standard now. the american people deserve their privacy, they deserve to know how the intelligence community interprets and implements this law and, frankly, they deserve better than the protections put before us today. i urge my colleagues to consider the gravity of the issues at hand and seriously consider and contemplate the effect of another five years of unchanged f.a.a. authorities. madam president, i appreciate the attention and patience of my colleagues on this important matter. i yield the floor. note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
mrs. feinstein: madam president? the presiding officer: the senator from california. mrs. feinstein: thank you very much. i would just point out the wyden -- the presiding officer: the senate is in a quorum call. mrs. feinstein: i ask the quorum call be vitiated. the presiding officer: without objection. mrs. feinstein: madam president, i note the wyden ality has not s not yet been called up. someone may wish to do so. i just want to comment, first of all, the ranking -- the vice chairman isn't here but he said some very nice things and i just want him to know that one of the best experiences of my senate career has been the ability to work in a bipartisan way in this committee, to really put things together between both sides, to have staffs working together on both sides. sometimes that isn't possible but most of the time it is. and i think it's the way the intelligence committee was supposed to function. and the fact that it does
function that way i think is real testimony to vice chairman chambliss and the work that we have done together. i find this particular amendment very frustrating because i have tried to be as helpful as i could over many years in getting information released in a classified form for members of the committee. and, in fact, we have been very successful in that regard. there are approximately eight big reports a year now that are done that present information in a classified function. there are two reports from the attorney general and the d.n.i. assessing compliance with the targeting and minimization procedures and the acquisition guidelines of section 702. there are two more reports from them to implementation of title 7, actions taken to challenge or enforce a directive, a
description of any incident of noncompliance. there have been annual reviews by each agency responsible for implementing these sections. regular reviews by the i.g. of the department of justice and the i.g. of each agency. and it goes on and on and on, and there's no satisfaction. where these people -- where the senators that have spoken to this amendment are going is really to the public release of this information and this is a classified program. and the information is available but it's available in classified form. and then they want names, names of individuals who may have been incidentally caught up in the collection, although their names are minimized and not used. and the fact of the matter is
that any time anyone incidentally caught up in a collection, there is a collection on them or they are electronically surveilled. the department has to go to the fisa court and get a court order to be able to do so. they leave out that each year the program is approved by the fisa court. this is a court of 11 judges appointed by the supreme court, by the chief of the court, all of whom are federal district court judges who do nothing but this work. and it's very frustrating. the administration has decided that the program should remain classified. so we do our level best to provide the information on a classified basis. but this amendment goes a step forward. it removes the classification for most of this program and
creates a way to obtain public information that could well jeopardize the future of the program. now, i think the ranking -- the vice chairman would agree with me. one of the things that we have seen is that this program is valuable and that the ability to collect intelligence and use that intelligence wisely and well with oversight from appropriate energies saves lives in this country. and if any -- i guess if you believe that there is no one that's going to attack us, then maybe it's fine to do this. i know that there are people trying to attack this country all the time. i know in the last four years there have been a hundred arrests made of people in the process of trying to attack this
country one way or another. therefore, the information which is available but available in a sear room for members to read is important. and i would really urge, as the vice chairman has urged, that members go and read this information. i would like just to quote from the let since to speaker boehn boehner, leader reid, pelosi and mcconnell from the director of national intelligence on this provision which authorizes surveillance directed at non-u.s. persons located overseas who are of foreign intelligence importance. and it goes on to say all of the process -- it's pages and pages. all of the process that is carried out, carried out in a
classified forum, but to inform the members who are there essentially to provide the oversight. i mean we, the public. we are not of the intelligence community. we are the public. and it's our oversight, it is our due difficult again to go in and read the classified material. so this is an effort to make that material public. and i think it's a mistake at this particular time because i think it will chill the program. i think it will make us less security, not more security. and i'd respect fugging submit to the chair and inspection that terry to listen that part of our oversight is to see the best can that the intelligence provided by the 16 different intelligence agencies rernz america more secure, not less secure, and
reduces the chances of northerly 9/11 in this country. and we do it by trying to see that laws are followed, and the law is also written out in a publication here. we try to see that this is followed. we resort to the law on numerous occasions. i have a copy of this up in ply office and it's all sticky and where i go from time to time to re-read the law. but there are parts of the collection apparatus which are classified. and at this stage they're classified for good reason. so i have a fundamental opposition to this. but even more formally, we have four days to get this bill signed by the president, or this section ceases to function. four days. this is a house bill that's before us. it reauthorizes the program to
2017. we've been through this before. we can make changes. i've offered to work -- i've tried to work with senator wyden to the greatest extent i know possible within the classified portion of this. i've offered to senator merkley today to make some changes in our authorization bill based on the argument that has been prepared here and presented here. i don't know what else to do, because i know where this goes. and where it goes is to destroy the program. i don't want to see it destroyed. i want to see us do our job of oversight, which means going into those rooms and reading that material. and if some material isn't there, getting it in a classified manner. so this is hard stuff. i mean, this is the stuff you take home at night. you know, when you think that
nazabul azizi if it weren't for the f.b.i. would have blown up the new york subway. and it's because of intelligence received and they were able to follow him for a series of months that resulted in the arrest. so i think if i thought this country were out of danger, it might be different. but i believe there still is danger, and i believe every day in every way there are people who will kill americans if they can. and one of our jobs is to see that the intelligence part of the american government functions in a way that intelligence is streamlined, that it gets to the right place, that it stops an event from happening before it happens. and my great fear -- and i say this in good conscience to senator wyden -- you put all this out in public, and then the
next thing is more, more, more. and then before you know it, the program is destroyed. i don't want to see that program destroyed. mr. wyden: madam president? the presiding officer: the senator from oregon. mrs. feinstein: i think your time is up. mr. wyden: madam president, i believe i control additional time. how much time does our side have remaining? the presiding officer: there are 39 minutes of general debate time remaining to the senator from oregon. mr. wyden: thank you very much. i want to thank the minority leader, senator mcconnell, for his graciousness. i'm going to be very brief just in terms of responding to senator feinstein, the distinguished chairman. first of all, there is no question that the chair of the committee is correct that this is a dangerous time. and that is specifically why at page 6 of my amendment on the report i include a retkabg --
redaction provision. i quote here "the president believes the public disclosure of information in the record required by the subsection could cause significant harm to national security. the president may redact such information from the report made available to the public." bottom line, colleagues, if the president believes that any information that is made public would jeopardize our country at a dangerous time, the president is given full discretion with respect to redactions. point number two, the chair of the committee is absolutely right, this is an important time for national security. it is also, colleagues, an important time for american liberties. we know that the people of this country want to strike a balance between protecting our security and protecting our liberties. and so all under the reporting amendment that we require is an
estimate, just the question of an estimate and whether it is done by any entity with respect to collecting this information. no new work, colleagues. just a response to the question of whether an estimate has been done. second, we request information on whether any wholly domestic communications have been collected under section 702. and then we ask whether there have been any backdoor searches under the legislation. finally, we want a response with respect to what the director of national security meant when he said -- and i quote -- "the story that we have millions or hundreds of millions of dossiers on people is absolutely false. that's what we're talking about. i think without that information, colleagues, oversight here in the intelligence field will essentially be toothless. this interrupts no operations in
the intelligence field. it does not jeopardize sources and methods. it is, in my view, the fundamentals of doing real oversight. i thank my colleague from kentucky for giving me this time, and i close by way of saying no disagreement with the distinguished chair on the fact that there are real threats to this country's well-being and security, and that is why the president is given complete discretion in order to redact any information that would be made public. madam chair, with that, i yield the floor, and i thank the senator from kentucky for the time. the presiding officer: the majority leader. mr. reid: madam president, we're going to have three votes at 5:30. we think we can arrange three votes, two or three votes at 5:30. a number of the senators who have amendments dealing with the supplemental have agreed to come
at that time as soon as the votes are over and start debating those amendments tonight. we would really like to get as much of that debate out of the way tonight as possible so we can start voting at a reasonably early time tomorrow. the debate today on fisa has been stimulating. it's been very thorough and good. we hope to, as i understand it, there are three fisa amendments we're going to vote on tonight. that will still leave senator wyden's amendment that we'll worry about -- take care of that tomorrow sometime. i believe that's right. madam president, i ask unanimous consent that at 5:30 any remaining debate time on the pending amendments, leahy, merkley and paul, be yielded back and the senate proceed to vote in relation to the pending amendments in the order provided in the previous agreement, two minutes provided prior to each vote and all votes after the first vote be ten minutes. the presiding officer: is there objection? mrs. feinstein: reserving the right to object, might i ask
tomorrow when the intelligence votes will take place? mr. reid: we don't have the intelligence to do that right now. we'll try to work that out. we have these very, two very important measures to finish. i appreciate the collegiality of the senators on this most important piece of legislation dealing with the espionage part of it of our country. we should be able to work it out tomorrow. we have 21 amendments we have to dispose of dealing with the supplemental. some of those will be agreed to and we won't need votes on them. but we have a lot of debate time on that in addition to the votes. we just did the votes alone, it would be eight hours of voting. so we hope to be able to narrow that down. as soon as we have something more definite, so that you and senator wyden and others can complete the time that's
appropriate -- set up a time that's appropriate for senator wyden's amendment. mr. chambliss: madam president, reserving the right to object, and i appreciate the comments of the leader, i think the chairman and i and i assume those that have amendments that will be remaining -- i guess one amendment remaining and then final passage -- if we can complete debate tonight, we'd be prepared at the pleasure of the leader to go ahead and finalize the fisa amendments bill. mr. reid: i don't want to press the senator from oregon. he's been very good. he flew all night from his newborn to get here from oregon, and he was here at 10:00, and i don't want to press him in any way. so what is your -- i say through the chair to my friend from oregon, how do you feel about finishing the debate tonight? mr. wyden: i want to thank the distinguished leader.
you've been so helpful in ensuring we have a real debate. with my colleagues' indulgence, my understanding is we would have 15 minutes on each side at some point in the morning, if we could proceed with what i thought was the direction we were going, i'd very much appreciate it. but it should be limited to 15 minutes on each side pro and con at some point in the session tomorrow. mr. chambliss: madam president, are you talking about 15 minutes on your amendment? 15 minutes on passage? 15 minutes on each, on your amendment and vote on it and then go to final passage? mr. wyden: responding to the vice chair, 15 minutes with respect to our side in favor of the reporting amendment. 15 minutes on the other side. it will be voted on then, and we go to final passage. mr. reid: i would suggest this
when we come in the morning, the first order of business, we would have the half-hour evenly divided, vote on the wyden amendment and then final passage. that way we can devote the rest of the day and tonight to the supplemental. i ask consent that that be the case in addition to what i just did here. the presiding officer: is there objection to request as modified? without objection, so ordered.
mr. mcconnell: madam president? the presiding officer: the republican leader. mr. mcconnell: were we in a quorum call? the presiding officer: we are not. mr. mcconnell: i'm going to proceed in my leader time. the presiding officer: the senator has that right. mr. mcconnell: madam president, you'll excuse me if i'm a little frustrated at the situation we find ourselves in, but last night president obama called myself and the speaker and maybe others from hawaii and asked if there was something weekend do to avoid the fiscal cliff. i say i'm a little frustrated because we've been asking the president and the democrats to work with us on a bipartisan agreement for months, literally
for months. a plan that would simplify the tax code, shrink the deficit, protect the taxpayers, and grow the economy. but democrats consistently rejected those offers. the president chose instead to spend his time on the campaign trail. this was even after he got reelected. and congressional democrats sat on their hands. now republicans have bent over backwards. we stepped way, way out of our comfort zone. we wanted an agreement, but we had no takers. the phone never rang. and so now here we are five days from the new year, and we might finally start talking. democrats have had an entire year to put forward a balanced
bipartisan proposal, and if they had something that fit the bill, i'm sure the majority leader would have been able to deliver the votes the president would have needed to pass it here in the senate. and we wouldn't be in this mess. but here we are once again at the end of the year staring at a crisis we should have dealt with literally months ago. make no mistake, the only reason democrats have been trying to deflect attention on to me and my colleagues over the past few weeks is that they don't have a plan of their own that could get bipartisan support. the so-called senate bill that the majority leader keeps he referring to passed with only democratic votes, and despite his repeated calls for the house to pass it, he knows as well as i do that he himself is the reason it can't happen. the paperwork never left the senate.
so there's nothing for the house to vote on. as i pointed out before we took that vote back on july 25, the democratic bill is -- quote -- "a revenue measure that didn't originate in the house, so it's got no chance whatsoever of becoming law." that's what i said back on july 25. the only reason we ever allowed that vote on that proposal as i said at that time is because we knew it didn't pass constitutional muster and that if democrats were really serious, they'd proceed to a revenue bill that originated in the house as the constitution requires, and as i called on them to do again last week. to repeat, the so-called senate bill is nothing more than a glorified sense of the senate resolution, so let's put that convenient talking point aside from here on out.
last night, i told the president i would be happy to look at whatever he proposes, but the truth is we're coming up against a hard deadline here, and as i said, this is a conversation we should have had months ago. and republicans aren't about to write a blank check for anything senate democrats put forward just because we find ourselves at the edge of the cliff. that wouldn't be fair to the american people. that having been said, we'll see what the president has to propose. members on both sides of the aisle will review it, and then we will decide how best to proceed. hopefully there is still time for an agreement of some kind that saves the taxpayers from a wholly, wholly preventable economic crisis. mr. president, i yield the floor. the presiding officer: the majority leader.
mr. reid: i'm not sure my distinguished republican counterpart has followed what has taken place in the house of representatives. the house, as reported by the press, and we all know, one of the plans didn't have a name, it wasn't plan b. i don't know what plan it was because they have had a number over there, but this plan was to show the american people that the $250,000 ceiling on raising taxes wouldn't pass in the house. why didn't they have that vote? because it would have passed. they wanted to kill it. the speaker wanted to show everybody that it wouldn't pass the house. but he couldn't bring it up for a vote because it would have passed. republicans, a myriad of republicans think it's the fair thing to do. and of course every democrat would vote for that. the republican leader finds
himself frustrated that the president has called on him to help address the fiscal cliff. he's upset because -- quote -- "the phone never rang." he complains that i have not delivered the votes to pass the solution to the fiscal cliff, but he is in error. we all know that in july of this year, we passed in the senate the relief that it would give to middle-class americans, that passed the senate. now, we know that the republicans have buried themselves in procedural road blocks, everything we try to do out here, and now they are saying well, we can't do the 250 because it wasn't blue slipped -- because it will be blue slipped. mr. president, how does the american people react to that? there was a bill introduced by the ranking member of the ways and means committee in the house, sandy levin, that called
for this legislation. the speaker was going to bring it up to kill it but he couldn't kill it. and then we moved to albany b, b, -- plan b, the debacle of all debacles. it's the mother of all debacles. that was brought up in an effort to send us something. he couldn't even pass it among republicans, it was so absurd, he meaning the speaker. so it's very clear now, mr. president, that the speaker's number-one goal is to get elected speaker on january 3. the house is not even here. he's told me he will give them two days to get back here, 48 hours. not two days. 48 hours. they don't even have enough of the leadership here to meet to talk about it. they have done it with conference calls. people are spread all over this country because the speaker basically is waiting for january 3. now, the president campaigned on
raising taxes on people making more than $250,000 a year. the bush-era tax cuts will expire at the end of this year. obama was elected with a surplus of about three million votes. he won the election. he campaigned on this issue. again, the speaker can't take yes for an answer. the president has presented him something that would prevent us from going over the cliff. it was in response to something the speaker gave to the president himself, but again, i guess with the dysfunctional republican caucus in the house, even the speaker can't tell what they are going to do because he backed off even his own proposal. mr. president, the house we hear
so often is controlled by the republicans, and we acknowledge that. i would be most happy to move forward on something that senator mcconnell said they wouldn't filibuster over here that he would support and that boehner would support if it were reasonable, but right now they are -- we haven't heard anything. i don't know -- and it's none of my business, i guess, although i am very curious -- if the speaker and the majority leader -- the republican leader over here are even talking. i mean, what's going on here? mr. president, you can't legislate with yourself. we have nobody to work with, to compromise. that's what legislation is all about, is the ability to compromise. the republicans in the house have left town. the negotiations between the president and the speaker have fallen apart, as they have for the last three and a half years.
we have tried mightily to get something done. i would just go over what the -- the little drill here, mr. president, to remind everyone how unreasonable the republicans have been. senator conrad and judd gregg came up with a proposal to pattern what they wanted to do after the base closing commission. the commission would be appointed. they would report back to us. no filibusters, no amendments. yes or no like we did with base closing. and we did a great job there. we closed bases over two different cycles, saving the country hundreds of billions of dollars. so we brought that up here, i brought it up. they have plenty of votes to do it, except republican cosponsors walked away and wouldn't vote for it. that's where simpson-bowles came from. again, people talked about why don't we do bowles-simpson. one problem. the republicans appointed there wouldn't vote for it, generally speaking. then we went through the months and months of talks between the president and boehner.
both times, boehner could not deliver because they refused because of grover norquist to allow any tax revenues whatsoever. we had meetings with the vice president, biden and cantor. cantor walked out of those meetings. he is the majority leader in the house. we had the gang of six, the gang of eight. we had this super committee, and they were doing good things, good things, dealing with entitlements and revenues. and a week before they were to report, buy virtue of statute, i get a letter signed by virtually every republican, too bad about the super committee, we're not going to do anything with revenues. so this is not a capsule of a couple of days. this has been going on for years. they cannot cross over the threshold that has been built by grover norquist. people who are rich, who make a lot of money, they are not opposing raising the taxes on them. the only people in america who
don't think taxes should be raised on the rich are the republicans who work in this building. so any time the speaker and the republican leader come to the president and say we have got a deal for you, the president's door is always open, and mine is, too. mr. mcconnell: mr. president? the presiding officer: the republican leader. mr. mcconnell: i would only add the majority leader has given you his view of the last two years. i have certainly given you my take on it. the american people have spoken, and they basically voted for the status quo. the president got re-elected, the senate is still in democratic hands and the house is still in republican hands. the american people have spoken. they obviously expect us to come together and to produce a result. as i indicated, the president called me and probably called others last night. my impression is he would like to see if we can move forward. we don't have a -- very many
days left. i have indicated i am willing to enter into a discussion, see what the president may have in mind. i know the majority leader would certainly be interested in what the president has in mind. it appears to me the action, if there is any, is now on the senate side, and we'll just have to see whether we're able on a bipartisan basis to move forward. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: we're going to have to decide, my friend says, how we're going to move forward on a bipartisan basis. even on the sunday shows we just completed, in the fox -- with fox network, chris wallace pushed one of the republican leaders very hard, would you filibuster something the democrats brought to the floor? he refused to answer the question. he would not say. and he kept being pressed. mr. president, we're in the same situation we have been in for a
long time here. we can't -- we can't negotiate with ourselves because that's all we're doing. unless we get a signoff from the republicans in the house and the republican leader here, we can't get anything done. and so for them to talk about the bipartisan arrangement, we have -- we have done that. the president has given them one, given them two, given them three, and we can't get past grover norquist. we try hard but when there is no revenue as part of the package, it makes it really hard. john boehner could not even pass a tax proposal that he suggests over there where he would keep the taxes the same for everybody except people making over a million dollars a year. no, grover and the boys said no, you can't do that. so he didn't even bring it up for a vote. so i am here, i'm happy to listen to anything the speaker and the republican leader have. they have a way of getting the
president, they don't need my help, i'm happy to work with them any way i can, but the way things have been going, it's not a real good escape hatch they have. they are out of town now. they will be back for two days, 48 hours, so that's where we are. mr. durbin: mr. president? the presiding officer: the senator from illinois. mr. durbin: mr. president, i think all of us understand the gravity of the challenge we face. this so-called fiscal cliff has been subject to parity and comedy routines, but it's very serious. if congress fails to act enacting a measure to be signed by the president, the taxes will go up on every single income tax-paying american, every one of them. not just the wealthy but
everyone. what it means, frankly, is whether you live in connecticut like the presiding officer or illinois like myself, every family is going to see several things happen automatically. taxes will go up. the payroll tax cut that has helped this economy is going to disappear. unemployment benefits are going to disappear for millions of americans who are searching for work, and many other changes will take place, none of which will be favorable in terms of an economic recovery. i think that we ought to stop and reflect for a moment here on lessons learned. here's what i have learned. if we're going to solve this problem, we need to do two things. we need to be prepared on both sides of the table to give, and that's a hard thing for many people to acknowledge, but we do. we have to be willing to give on both sides of the table. i remember senator reid receiving a letter after the super committee was hard at work coming up with a bipartisan proposal, signed by virtually every senator on the other side of the aisle, said do not include a penny of revenue.
that was the end of the super committee. there was no place to go at that point. they have to be willing to give on revenue and we have to be willing to give on our side, particularly in the area of entitlements, and that's painful. i'm one of those who believes, and frankly i have said it over and over again, social security should be taken from the table and put aside for a separate commission, a separate debate. i don't believe it adds a penny to the deficit and it shouldn't be a victim of deficit reduction when it has nothing to do with the current deficit. secondly, i understand the importance of medicaid to those who are young, single moms, the disabled, the elderly, those suffering from mental illness. medicaid is critically important, and we can't let that be devastated, particularly in the struggling economy when so many people are out of work or working at jobs without health insurance. and third, medicare. in 12 years, medicare is going to go bankrupt. it will be insolvent. we have to sit down and honestly deal with entitlement reform
that saves the program, doesn't lose them to the paul ryan budget approach but saves the program in a fiscally responsible way. now, that's the first thing we should agree on. both sides have to come together and be prepared to give. the second thing is it takes both sides. what speaker boehner proved to us last week is if you try to do so-called plan b in the republican caucus, no hope. but if you take a measure to the floor of the house and invite democratic and republican support for it, you can pass it. i believe you can, as we can in the senate. that's what needs to be done. we need to have some grassroots efforts in the house and the senate of senators from both sides of the aisle who are preparing to work on a bipartisan basis to solve this problem. to say we should have done this long ago is to overlook the obvious. until november 6, we didn't know who the president would be for this new -- new administration. and now we do. it would have been a much different debate, a different
outcome if the american voters had not chosen president obama to be reelected. so we had to wait until november 6 honestly before we could seriously take on the important and difficult issues involved in this debate. but that time is passed. the president has stepped forward, he's made a proposal and he's made concessions on his proposal, he continues to be here. he flew back from a family vacation that i know is as important to him as all of our family vacations are over the holidays to be here in washington. and to be part of the conversation and the dialogue. i hope that speaker boehner will bring back the house of representatives. we cannot do this alone. we must do this with their leadership and their cooperation. and the point that's been made by senator reid over and over again is that this is an issue, this is a challenge which we can successfully resolve and we must before we go over the cliff. mr. president, i ask consent the following statement be placed in a separate part of the record. the presiding officer: without objection.
mr. durbin: the pending business are amendments to the fisa reauthorization bill. rise to speak about that legislation, which the senate will vote on in a little over an hour. as chairman of the constitution subcommittee on senate judiciary i have concerns about this law which is known as the fisa amendments act. it doesn't plu include adequate checks and balances to protect the constitutional rights of innocent american intens. although this legislation is supposed to target foreign intelligence, it gives our government broad authority to spy on americans in the united states. without adequate oversight by the courts or by congress. it's worth taking a moment to review the history that led to the enactment of the fisa amendments act. after 9/11, president george w. bush asked congress to pass the patriot act. many of us were concerned the legislation might go too far but it was a time of national crisis and we wanted to make shoe the president had the authority he needed to fight terrorism. we did not know then that shortly after we passed the
patriot act the bush administration began spying on american citizens in the united states without the judicial approval otherwise required by law. and without any authorization from congress. years later, the judiciary committee on which i serve heard dramatic testimony from former deputy attorney general jim comby about the efforts of chief of staff andrew card and counsel alberto gonzalez to pressure attorney general john ashcroft some into reauthorizing this surveillance of american citizens while ashcroft was in the hospital. after "the new york times" revealed the existence of warrantless surveillance program, the bush administration demanded the congress pass legislation authorizing it. this led to enactment of the fisa amendments in 2008. in short, this legislation was born in original sin. congress added some oversight requirements and civil liberties protection to the bush administration's warrantless
surveillance program but they didn't go far enough. that's why i opposed the original fisa amendments act along with a majority of democratic senators. i supported an earlier version offered by senator leahy, chairman of our judiciary committee, which would have authorized broad surveillance powers but included civil liberties protections. back in 2008, the bush administration accused opponents of this legislation of not understanding the threat of terrorism. vice president cheney went so far to say -- quote -- "the lessons of september 11 have become dimmer and dimmer in some people's minds" -- end of quote. i'm sorry that some supporters of this reauthorization legislation have repeated this claim in the bush administration, suggesting those of us who want to protect the privacy of innocent americans believe the threat of terrorism has receded. that is not the case. the american people will never forget the lessons of 9/11, and i won't personally. we need to make sure our government has the authority it needs to detect and monitor
terrorist communications. but we also need to ensure that we protect the constitutional rights of american citizens. earlier this year i received a classified briefing on the fisa amendments act and i'm just as concerned now as i was four years ago that the legislation does not include sufficient checks to protect the constitutional rights of innocent americans. the fisa amendments act is supposed to focus on foreign intelligence, but the reality is this legislation permits targeting an innocent american in the united states as long as an additional purpose of the surveillance is targeting a person outside the united states. this is known as reverse targeting of american citizens. the 2008 judiciary committee bill which i supported by have prevented reverse targeting by prohibiting warrantless surveillance if a significant purpose of the surveillance is targeting a person in the united states. we have a constitution and due process procedures spelled out when it comes to surveillance of
american citizens. the fisa amendments act has found a way around it, and that, i think, is a fatal flaw. the fisa amendments act permits the government to collect every single phone call and email to and from the united states. this is known as bulk collection. the 2008 judiciary committee bill would have prohibited bulk collection of communications between innocent american citizens and their friends and families outside the united states. the fisa amendments act also permits the government to search all of the information it collects during this bulk collection. the government can even search for the phone calls or emails of innocent american citizens, and these searches can be conducted without a court order. this kind of back door warrantless surveillance of u.s. citizens should not be allowed. both parties ought to stand up for our constitution. earlier this year in the judiciary committee's markup of fisa amendments act reauthorization, senator like lee and i offered a bipartisan amendment to prohibit back-door
warrantless surveillance of americans. unfortunately, our amendment did not pass so americans will still be at risk to this kind of surveillance if the fisa amendments act is reauthorized. i'm pleased the senate will consider a number of amendments that will add some transparency and oversight to the fisa amendments act so the congress and the american people will know more about how the government is using this authority. i thank majority leader senator reid for ensuring that the senate will have the opportunity to debate and vote on these amendments. i'm cosponsor of the judiciary committee chairman pat leahy's amendment which was reported by the committee. this amendment would shorten the reauthorization of the fisa amendments act from five to flee years and -- three years and strengthen the authority of the inspector general. i'm also a cosponsor of an important bipartisan amendment offered by senator ron wyden who is on the floor. senator wyden together with senator mark udall and senator lee, myself have joined in an amendment which would require the director of national intelligence to provide a report
to congress that includes, among other things, information on whether any intelligence agency has ever attempted to search through communications selected to find the phone calls or emails of a specific american without a warrant. isn't this the kind of information that congress and the american people should have? senator wyden is a senior member of the intelligence committee. he's offering this amount because he's bun bern frustrated in his attempts to obtain basic information about the use of surveillance powers by our government authorized by the fisa amendments act. earlier this year senator wyden, senator mark udall asked the office of the director of national intelligence a fundamental question, how many americans have been subjected to surveillance under the fisa amendments act? the office of the director of national intelligence claimed it is not possible to answer that question. at a minimum, before the senate acts to extend the fisa amendments act, senators should be given any information the
intelligence community has about whether innocent americans have had their private emails and phone conversations swept up by fisa amendments act collection. i'm pleased to be a cosponsor of the bipartisan amendment that's been offered by senators jeff merkley and mike lee. the foreign intelligence surveillance act as interpreted by a secret court known as the foreign intelligence surveillance court. the merkley-lee amendment would require that significant legal interpretations of fisa by the secret court be declassified. the concept of secret law is anathema to a democracy. the american people have the right to know how laws passed by their elected representatives are interpreted and implemented. i thant want to thank senators merkley and lee for taking up this cause. in 2003 i worked on a provision in the 9/11 intelligence reform bill that would have required the declassification of significant legal interpretations by the fisa court. unfortunately, that provision was removed from the final bill
at the insistence of the bush administration. former senator russ feingold, my predecessor as chairman of the constitution subcommittee was also an outspoken advocate of declassifying fisa court opinions and back in 2008 he held a hearing on the problem of secret law. this is an important issue and i hope that the senate will will approve the merkley amendment. i'm not aware of any substantive objections to the leahy, merkley and leahy amendments. the only concern, is that the bill will have to go back to the house for final approval but there are still four days before the end of the year when the fisa amendments act expires which is plenty of time for the house to vote on the bill the senate passed if it returns to washington. even with these amendments, i'm concerned that this reauthorization of the fisa amendments act does not include the checks and balances needed to preserve our basic freedoms and liberties. i believe we can be both safe and free. we can give the government the authority it needs to protect us
from terrorism but place reasonable limits on government power to protect our constitutional rights. mr. president, i yield the floor. mr. chambliss: mr. president? the presiding officer: the senator from georgia. mr. chambliss: i want to rise in opposition to the three amendments that we're going to be voting on today. i want to start with the leahy amendment just referred to by the senator from illinois. senator leahy's amendment will act as a complete substitute to the bill that's on the floor, and if passed, it will require a conference with the house of representatives, and, you know, here we are on the 27th of december, the house is not coming back until the 30th, there simply is not time even if the amendment was substantive enough that it ought to be considered for passage to get that conferenced with the house and get this bill on the desk of the president by december 31, which is when these provisions
expire. the first change that the leahy amendment makes is to reduce the extension sunset from december 31, 2017 back to december 1, 2005. now that date coincides with the expiration of other certain fisa provisions including the roving wiretap, the business court orders and the lone wolf. it may seem like that ought to make sense that have you all of these expiring at that time but frankly having been involved in the intelligence community for the last 12 years now, it actually works in reverse from that, it would have a negative influence on the community itself. because if you match the f.a.a. sunset with the patriot and the erpta sunsets, it provides no real benefit to congressional oversight and could actually increase the risk that all of these authorities will expire at
the same time and if they all expired at the same time, the community would certainly be in a real disadvantage position from an operational standpoint. the leahy amendment also makes a number of modifications to the executive branch oversight provisions that i believe simply are not necessary. for example, the amendment will require the inspector general of the intelligence community, icig, to conduct a mandatory review of u.s. person privacy rights in the context of the fisa amendments act implementation. now, if we really believe that this sort of review by the icig is necessary, don't want need a statutory provision. we can simply get a letter from the intelligence committee directing that that be done and it will be done. so trying to think that we need a statutory provision on that type of issue, if it does -- if there's any contemplation that it exists, is simply not
necessary. i'm also concerned that the leahy substitute incorrectly elevates the icig to the same level as the attorney general and the director of national intelligence by adding the icig as a recipient of fisa amendments act reviews that are conducted by the d.o.j. i.g. and other intelligence community element inspectors general. that doesn't make a lot of sense because the attorney general and the d.n.i. are the only ones responsible for jointly authorizing the collection of foreign intelligence information under the f.a.a. they are the ones who need to review compliance assessments conducted by the relevant i.g.'s including those conducted by the i.c.i.g. if there is concern about whether the icig can conduct these types of reviews, i think the f.a.a. is clear on that
point. since the odni is authorized to receive or acquire foreign intelligence information, the ig can conduct these reviews to to the same extent as any other inspector general as an element of the intelligence community. he doesn't need redundant statutory authorization. it's important to understand that the word, and i quote, "acquire" as used here doesn't mean acquisition in the actual physical collection of foreign intelligence. rather, acquire means to come into control of often by unspecified means. we know this because in the annual review view provision in the very next paragraph sought to be amended, the f.a.a. uses the more precise conducting and acquisition terminology which clearly indicates that it affects only those elements that are actually collecting foreign
intelligence information. this same annual review provision would also be modified by section 4 of senator leahy's amendment. his changes would expand the agency heads responsible for conducting these annual review to any agency with targeting or minimization procedures as opposed to the current law which applies to only those agencies that are actually responsible for conducting an acquisition; that is, the physical collection of foreign intelligence information. right now, any i.c. element that receives downstream fisa collection must comply with fisa's retention, dis seem nation and use limitations. they don't have any kind of blanket authority to use this information. but the elements required in the annuaannual reviews are geared d the collectors than they are to
downstream i.c. elements that are required to comply with fisa's retention dissemination and use limitations. the intelligence committee has been conducting oversight on this collection program long before it was ever codified in the fisa amendments act. we worked closely with the judiciary committee to carefully monitor the implementation of the f.a.a. authorities by the executive branch. in the end, i'm fully satisfied that the f.a.a. is working exactly as intended and in a manner that protects our rights as americans. as i've just complai explained,d not believe that senator leahy's proposed changes are necessary, nor do i believe they improve upon the current practice. and i want to just quickly address what the senator from illinois said about the collection on u.s. persons. i mean, if you're -- if you're collecting on someone who is in pakistan and they call somebody
in the united states, he may be a u.s. citizen or he may be a non-u.s. citizen, and if you're collecting on him under a proper court order, there can be at times collection on somebody inside the united states, but the fisa amendments act makes -- has a provision for dealing with that so that we have what we call "minimization provisions" in place that immediately do not allow the use of any information collected on a u.s. citizen in an unlawful manner. the fisa court is very tough. they're very strict. and they don't just grant an authority to allow our intelligence community to gather information on foreign suspects or foreign entities or somebody who is working for a foreign
power in any kind of household manner. they are very strict in their requirements of what must be shown in order to be able to collect that. so in the rare times that there is a u.s. citizen on the on the other hand of the line, the minimization provisions kick in, and they work. they work very well. and the leahy substitute simply will not allow the community to do the job that we need to get done. secondly, i want to address the merkley amendment. again, i oppose this amendment. when congress created the fisa court back in 1978, it was understood that this court would have to operate behind closed doors, given the sensitivity of the national security matters that the court considers. each time fisa has been amend, whether it is section 501 dealing with impis records or 702 related to targeting foreign terrorists overseas, congress has maintained the same high
level of protection for the court's decisions, and what the merkley amendment would do would be to make those decisions public. section 601 of fisa already requires the attorney general to provide copies of all decisions, orders, or opinions of the foreign intelligence surveillance court or foreign intelligence surveillance court of review that includes significant construction or interpretations of the provisions of the entire act. so there are some reporting requirements right now that are in place. the merkley amendment would further require the attorney general to declassify and make available to the public any of those decisions that relate to section 501 business record court orders or section 702 overseas targeting provisions. i believe the american people understand that there are certain matters that simply do not need to be made public, particularly when it comes to
dealing with bad guys around the world, men who get up every morning and think about ways that they can kill and harm americans. and our folks in the intelligence community are doing a darn good job of gathering information on those types of individuals, and those are not the type of fisa court orders for given -- given by the court to gather that information that ought to be made public. in matters concerning the fisa court, the congressional intelligence and judiciary committee serve as the eyes and ears of the american people through this oversight, which includes being given all significant decisions, orders, and opinions of the court. we can ensure that the laws are being applied and implemented as congress intended. if a signifies is a court decision raises -- if a significansignificant fisa courn raises concerns, the intelligence committee will
raise questions. we hold hearings, get briefings, all designed to give congress good insight into the real-life applications and interpretations of the fisa act. this amendment does nothing to advance that oversight, but it could cause real operational problems. if we put in the public domain declassified opinions on unclassified summaries of the most significant court orders, we would give our enemies a road map into our collection priorities and capabilities. now, i know that one of the responses is going to be that these specific intelligence sources and methods could be redacted. but that only solves part of the problem. these guys we're dealing with, these bad guys around the world are smart guys. they are not idiots. and they know that when they look at a declassified piece of intelligence information that has redacted portions of it,
they are able to piece the puzzle back together again and figure out exactly who those sources are and what their methods are, which is going to put our intelligence community gatherers in jeopardy from a national security standpoint. there's already substantial oversight of section 501 and 702 by the fisa court. the department of justice, the intelligence community, and the congress. and i can't think of any two provisions in fisa that have received more attention and more scrutiny than sections 501 and 702. and yet as a result of this vigorous oversight, we loss know that these sections are two of the most carefully implemented by all of our investigative authorities. this amendment sets a dangerous precedent and would undermine some of our most sensitive investigations and investigative techniques. passing it would also impede our
chances much getting a clean f.a.a. extension to the president, as i had mentioned earlier in my comments. lastly, i want to quickly mention the paul amendment. again, i'm going to oppose this amendment because it is inconsistent with the constitution and it contradicts decades of established supreme court precedent and federal law. contrary to what this amendment says, there is no fourth amendment violation when the government gets information from a third party about a person who has voluntarily given that information to the third party. and what the paul amendment would do, it would limit the ability of our intelligence community and our prosecutors to take information that a bad guy has given to a third party and we get that information from the third party, from that information being used in a prosecution against that bad guy. in u.s. v. miller, a 1976
supreme court case, the court stated thattings it has repeatedly held that the fourth amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." clearly, directly -- language directly contrary to the paul amendment. the paul amendment says that the government would always have to either have consent or a search warrant to get information held by a third party in a system of records. now, this amendment would have a significant impact not just on criminal cases, from drugs to violent crime to child cases, but on national security matters. often the information obtained from a system of records as described in this amendment is
what we call "building-block information. "it is the basic information that the law enforcement and intelligence communities use to build an investigation long before there may be probable cause. this type of information can be used not just to build cases but to rule out people as suspects. in short, ensuring that they won't be subjected to more intrusive investigative measures like search warrants. yet this amendment elevates building-block information in the hand of a third party to the equivalent of privately held information in which there is reasonable expectation of privacy. even though a person voluntarily hands over information to a third party, this amendment says that we should put the genie back in the bottle and now create a reasonable expectation of privacy. what's more, if the government gets information from a third party without consent or a search warrant, this amendment says it can never be used in a
criminal prosecution. the message here to banks, hotels, shipping companies, fertilizer storage, you name it: don't bother being good samaritans and give law enforcement tips about suspicious activities. we'll just take our chances and hope we get enough probable cause in time to stop whatever crime or terrorist act may be planninged. simplely stated, this amendment is contrary to case law and contrary to constitutional provisions, and i would urge all of my colleagues to vote against this amendment, the merkley amendment, as well as the leahy amendment when we begin voting at 5:30. mr. merkley: mr. president? the presiding officer: the senator from oregon. mr. merkley: would my colleague from georgia yield to a question? mr. chambliss: sure, i would be happy to. mr. merkley: i thank you, mr. president. and thank you to my colleague. my colleague did address issues regarding the merkley-lee amendment, which has three stages in it designed to be
sensitive to national security. it says that the attorney general determines that an opinion is not dangerous to national security, to ask them to release it to the public. it says that the attorney general finds it is sensitive to national opinion -- or national security, to release only a summary, so s written as to protect national security. if an attorney general opinion is not possible, then please just give us a report on the process of the executive branch, as they've already said they're doing, which is to go through a systematic process of determining what they feel should be released, independent of any advice that we in the senate miter have. -- in the senate that we might have. so what it means is that in a situation where we have language such as the government can collect information relevant to an investigation and the public wonders, well, is that investigation any investigation
in the world, is it -- what does relevant mean? are what does tangible information mean? and there are decisions that may confirm the plain language operates in a fashion that protects the foirnlg amendment right, or those interpretations of fisa may stand the statute on its head and open a door that was meant to be by what we did when we passed it here, be opened just a slit be turned into a wide-open gate. and so with those provisions to carefully protect national security, as you have so rightly pointed out is necessary, can i perhaps win your support? mr. chambliss: well, here's my problem with that provision, and it's twofold. first of all, there's proverbial elephant's nose under the tent theory. this is the beginning of opening up other things down the road, and i think that in in world -- in this world that we operate, this cloak-and-dagger world of ththeintelligence community, ane
don't like to think about the fact that that is necessary in modern times, but it is more necessary today than ever before because of the enneigh we face, then i think there is a real danger in beginning to open up any of those opinions. the second part of it is kind of tied that, too. as i said earlier, these folks that we're dealing with are very smart individuals. these bad guys carry laptops, they communicate in encrypted messages that we have to try to pick up on with the right kind of authorizations that the fisa court gives us, and do our best to figure out what they're doing in advance of them taking any activity. and while we may not think about a in an opinion coming out of the fisa court being a tipoff to
bad guys about what we're doing or, more significantly, what they are doing that has alerted us, you better believe those guys are going to be examining every one of these opinions that we make public and they're going to be reviewing those opinions and they're going to at some point in time pick up on some small piece of information that's going to give them a shortcut next time they plan an attack against america or americans. so i think for us to say that, you know, it's -- it's the personal opinion of the attorney general that, well, maybe this doesn't involve national security but neighbor does -- but maybe it does and we ought to go through those other steps that you alluded to, those bad guys are going to be looking at every single one of those, and at some point in time it's going to come back to haunt us. mr. merkley: i thank my colleague for sharing his -- his insights. and certainly national security is extremely important.
i, obviously, reach a different conclusion. i encourage my colleagues to support the amendment that senator lee and i have put forward because it appropriately balances national security concerns against issues of privacy in the fourth amendment. it says simply where national security is not affected, the public should be able to see the interpretations of what the statutes we write here in this chamber smeen that th mean so tc can weigh in with whether they're comfortable with where the secret court has taken us, so we can weigh in, so we can have debate on this floor not about what best guess what possible implications might recur from some secret court opinion but we can actually share, in a situation where national security is not affected, well, here's how a related investigation was interpreted. oh, my goodness, what was interpreted to be a door open one inch is a door flung open like a barn gate and that the fourth amendment is in serious trouble. and that should be debated here.
certainly the -- the amendment that senator lee and i have put forward is very sensitive to the concerns my colleague has presented. i do appreciate his -- his viewpoints but i ask colleagues -- mr. president, i ask through you my colleagues to weigh in on the side of -- that the american people have a right to know what the plain language of the statute actually means after being interpreted by a court. thank you. and, mr. president, i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum callquorum call: quorum call:
a senator: mr. president? the presiding officer: the senator from utah. mr. lee: mr. president, no one disputes the vital importance of -- the presiding officer: senator, the senate is in a quorum call. mr. lee: mr. president, i ask unanimous consent to dispense with the quorum call. the presiding officer: without objection. mr. lee: mr. president, no one disputes the vital importance of
our national security. indeed, in federalist 41, james madison noted that security against foreign danger is one of the primitive objects of civil society. and he emphasized that such security is an avowed and essential object of the american union. government officials have a solemn duty, particularly in the age of global terrorism, to help ensure that the american people are safe and secure. yet at the same time, government also exists to do a lot more than just promote security. its most fundamental purpose is to protect our natural and inalienable liberties. safeguarding individual rights and liberties is the bedrock of american government. in the words of our nation's founding document, the declaration of independence, "it is to secure these rights that governments are instituted among men." in our quest for ever greater
security, we must be mindful not to sacrifice the very rights and liberties that make our safety valuable. as benjamin franklin put it, those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. i worry that in seeking to achieve temporary safety, some of the authorities we have given the government under fisa may compromise essential rights and liberties. in particular, i'm concerned about the government's ability, without a warrant, to search through fisa materials for communications involving individual american citizens. i worry that this authority is inconsistent with and diminishes the essential constitutional right that each of us has to be secure against unreasonable searches and seizures. we don't know the precise number of communications involving american citizens that the government collects, stores, and analyzes under section 702 of