USA Freedom Act of 2015

Floor Speech

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Mr. CORNYN. Madam President, the Senate will hold a series of votes
this afternoon on the underlying bill, and I think it is important for
all of us to understand exactly what those amendments will do.

The underlying House bill makes some changes in the way the National
Security Agency operates and uses what the Supreme Court of the United
States has held is not private information--in other words, the time,
duration, and number involved in a telephone call that is contained in
a typical telephone bill.

The Supreme Court of the United States has said there is no right of
privacy in that information. As the Senate knows, what the House bill
does is it leaves these phone records in the possession of the
telephone company. Then, over a period of 6 months, the National
Security Agency is supposed to come up with a means of querying those
records in the possession of the various phone companies.

Some, like me, have wondered why it is that we are trying to fix a
system that is not broken, because there is absolutely no documented
record of any abuse of this information as it is currently retained by
the NSA. The way it is used is to help the intelligence community
discover people who have communicated with known or suspected
terrorists abroad in a way that will help to provide an additional
piece of data that will hopefully help them prevent terrorist attacks
from occurring on our home soil.

The FBI Director has said that in the 56 field offices in the United
States, every single one of these field offices has an open inquiry
with regard to potential homegrown terrorist attacks.

As I mentioned before, in Garland, TX, just a few weeks ago, two men
traveled from Phoenix, AZ, and obtained full-body armor and automatic
weapons and were prepared to wreak havoc and murder innocent people in
Garland, TX, because they were exercising their First Amendment rights
and were displaying cartoons that these two jihadists felt insulted the
Prophet Muhammad.

Thanks to the good police work of a Garland police officer, both of
those people were taken out of action before they could kill anybody
there at that site. But why in the world would we want to take away
from our intelligence authorities the ability to detect whether
individuals, such as these two jihadists from Phoenix who traveled to
Garland, had been communicating with known terrorist telephone numbers
in Syria or anywhere else in the world? These are foreign telephone
numbers that are matched up and provide an essential link and, really,
a tripwire for the intelligence community.

What the amendments that we will vote on this afternoon would do is
to slow the transition from NSA storage to the telephone company
stewardship from the 6 months prescribed in the underlying bill. For
those who believe that the underlying bill is the correct policy, I do
not know why they would object to a little bit of extra time so we can
make sure that this is going to work as intended.

Indeed, the second amendment does relate specifically to that. It
would require a certification by the Director of National Intelligence
that the software is actually in place that will allow the National
Security Agency to query the phone records in the possession of the
telephone companies.

Another amendment would provide that the Foreign Intelligence
Surveillance Court, which is a group of experienced Federal judges who
review the requests from the FBI and other law enforcement authorities,
would be able to query these telephone records. It would establish a
panel of experts, so to speak, to argue against the government's case
in front of the Foreign Intelligence Surveillance Court. As somebody
who used to be a judge for some time, this is a rather strange
provision because what it does, essentially, is to put a defense
attorney in the grand jury room and create an adversarial process at
the early stages of an investigation, which may or may not lead up to
an indictment in that case.

The final amendment would require the phone companies to notify
Congress if they are going to change their policy for retaining
customer records. This is a serious concern because it could well be
that some telephone companies will start marketing to potential
customers that they will not retain any records, thus eliminating an
important tool which helps keep Americans safe and has absolutely zero
threat to civil liberties.

There has been so much misrepresentation about what this so-called
metadata program has done. I think that is one of the reasons we find
ourselves here today. Many who believe the program is useful are
reluctant to even talk about it in public because, as we know, so much
of what is done to protect our country is classified. So rather than
have a public debate and actually correct the misstatements of fact and
the demagoguery that unfortunately attends this subject, many people
are simply confused about what exactly is going on and what Congress is
doing. But I would just point out that oversight of these programs is
absolutely rigorous. It is executive, judicial, and legislative
oversight. It is not a matter of trust as to whether these programs
work the way they are supposed to; it is actually verified on a regular
basis, universally verified.

Also, we have to go before these Federal judges known as a FISA
Court--a Foreign Intelligence Surveillance Court--in order to make our
case. Unless we can make our case to these judges that there is reason
to continue the investigation, they will shut it down.

One of the things I think we have forgotten is that we want to treat
intelligence gathering and prevention as we do ordinary law
enforcement. What I mean by that is that ordinarily, in the criminal
law context, government doesn't get involved in a case unless something
bad has already happened. If there has been an explosion or a murder or
a bank robbery or something like that, it is after the fact that we try
to figure out what happened and then, if we can, to identify the
perpetrator and to bring them to justice. That satisfies an important
need in our society to enforce our criminal law, but that is far
different from what our intelligence community is supposed to be doing
because they are supposed to be detecting threats and intervening in
those ongoing schemes and stopping them before they ultimately occur.

That is the important lesson we learned on 9/11. Unfortunately, it
has been so long ago now that many people have simply forgotten or they
don't feel as though this is an imminent threat. But when Director
Comey says they have open inquiries in all 56 FBI field offices about
the potential threat of homegrown terrorists, I take that very
seriously. I believe it is absolutely reckless for us to take any
unnecessary chances.

There are some who say this underlying bill is important because
instead of the National Security Agency collecting these telephone
numbers, we are going to leave the data with the telephone companies.
But none of the people who are going to be querying these records at
the phone companies have security clearances. One can just imagine the
potential for abuse at the phone companies of these phone records once
they receive some sort of request from the government.

We know the current system as run at the National Security Agency is
subject to rigorous oversight, as I mentioned. In addition to the
executive, judicial, and legislative oversight, we actually have a
private and civil liberties oversight board which makes sure that we strike the right balance.
Nobody wants to see the privacy rights of American citizens undermined,
but we all are adult enough to know that there has to be a balance and
that in order to provide for security and to avoid terrorist attacks
such as occurred on 9/11, we are going to have to take some actions to
reach the right balance, and I believe the current law does that.

Unfortunately, we have a traitor such as Edward Snowden who
selectively leaked certain portions of this program, and it has created
an uproar. I think that unfortunately, as a result of his leaks and the
ensuing political environment after that, America is at greater risk,
and that is a terrible shame.

So I think it is reckless to take a chance. We have been fortunate
that there have been no terrorist attacks on our homeland since 9/11.
Well, I take that back. Five years ago, at Fort Hood, MAJ Nidal Hasan
killed 13 people and injured 30-something more. Of course, we know now
that he had been in constant communication over the Internet with Anwar
al-Awlaki, who subsequently was killed in a drone strike--even though
he was an American citizen--overseas. He was overseas because he was
recruiting people to Islamic extremism, including Nidal Hasan, who
killed 13 people at Fort Hood 5 years ago.

It is simply a fact that the Fourth Amendment of the U.S.
Constitution involving searches and seizures doesn't apply to foreign
terrorists; it applies to Americans. Under the procedures used under
current law, all requests for additional information are subject to
Federal court supervision and permission.

So we will vote on a number of amendments this afternoon. I can tell
my colleagues, after talking to a number of our colleagues, many of
them have said they don't really have any disagreement over the content
or the policy of these amendments. Actually, these amendments are
designed to try to strengthen the underlying House bill.

We all understand that the House is going to prevail in the basic
structure of the underlying piece of legislation, but since when did
the U.S. Senate outsource its decisionmaking to the other body across
the Capitol? We have a bicameral legislature--a Senate and a House--for
a reason. We know we make better decisions when we have consultation
between the two branches of the legislature--not capitulation but
consultation. The Senate should not be a rubberstamp for the House or
vice versa.

I have heard some of our colleagues say that if the Senate were to
change a period or a comma or a dash in the underlying legislation, it
would be a poison pill, that the House would reject it and we would
have nothing to show for our efforts. But I have great faith that if
the Senate will do its job and vote to pass these underlying amendments
and strengthen this underlying bill, the House will take up the bill
and vote on it and it will pass. So if my colleagues feel as though
these amendments would actually strengthen the underlying House bill
and represent good policy, why in the world would they vote against
these amendments because of some fantasy that the House will simply
reject any changes at all? Why would they essentially capitulate any of
their prerogatives as U.S. Senators to represent their constituents in
this body? We all know we make better decisions in consultation with
other people.

Certainly I think it is true that the House's bill is not holy writ.
It is not something we have to accept in its entirety without any
changes. I think where the policy debate should go would be to embrace
these amendments and to say that we understand the House wants to
change the current custody policy of these phone records and leave them
with the phone company, but we sure need to know the new system will
actually work. Doesn't that make sense? That is why the certification
from the Director of National Intelligence is so important. It makes
sense to provide a little bit more time--from 6 months to a year--in
order to make sure this transition goes smoothly.

I know no Member of the Senate and no Member of the House and no
American wants to look back on our hasty treatment of this underlying
legislation and say: If we were just a little more careful, if we had
just taken a little bit more time, if we had just been a little more
thoughtful, a little more deliberative, and talked about the facts as
they are and not some misrepresentation of the facts, we could have
actually prevented a terrorist attack on our home soil.

Unfortunately, by increasing the risk to the American people, as I
believe this underlying legislation will do, we may not find out about
that until it is too late. I hope and pray that is not the case, but
why should we take the risk to the homeland? Why should we risk anyone
being injured or potentially killed as a result of a homegrown
terrorist attack on our own soil because we have simply blinded
ourselves in a significant way to the risks? Not that this is a
panacea, not that this is some litmus test, but it is one essential
piece of information that will help law enforcement make the case to
not just prosecute crimes after they occur but to prevent them from
occurring in the first place through the good and sound use of
constitutional intelligence gathering in a way that respects the
privacy of all Americans but lives up to our first and foremost
responsibility, and that is to keep the American people safe.

Madam President, I yield to the distinguished ranking member.

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