Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016

Floor Speech

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Mr. CORNYN. Madam President, I am not sure I understood it.

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Mr. CORNYN. Right.

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Mr. CORNYN. Madam President, as to the two main amendments that we will hear about tonight regarding the no-fly list, the watch list, or the known suspected terrorist list, we agree that terrorists should not have guns. Terrorists should not have guns. The only difference between the amendment of the Senator from California and my amendment is that once the gun purchase was stopped, under her amendment the bad guy walks away, and like the bombers who used the makeshift bomb in Massachusetts or some other device, they would be able to go buy guns illegally or create some other weapon of mass destruction and commit terrorist acts. My amendment would make sure that the law enforcement officials were notified on a timely basis, and then they would have up to 3 additional days to go to court and show probable cause to get a wiretap to listen to phone conversations, to execute search warrants to get additional information, and then to go before a judge and not just to deny access to the firearm but to take the terrorists off the street. Actually, in many ways, the amendment of my friend from California would not be as tough on the terrorists as mine would be.

We really should not be focusing on restricting the rights of law- abiding citizens under the Second Amendment without due process of law. That is what the Feinstein amendment does. We ought to be asking ourselves if there are those in this Chamber who believe you can deny American citizens their constitutional rights without due process of law based on a secret list that the government maintains. I don't care who it is. Whether it is the Obama administration or the former Bush administration, I don't think any American should sacrifice their constitutional rights without forcing the government to go to an impartial magistrate or judge and be able to show sufficient evidence to convince the judge that they have the evidence to deny those constitutional rights. This is really surreal to me.

Our colleagues want to make this about gun control when what we should be making this about is the fight to eliminate the Islamic extremism that is the root cause for what happened in Orlando. My colleagues, in many ways, want to treat the symptoms without fighting the disease. There is absolutely nothing in the Feinstein amendment that would have prevented the Orlando shooting from occurring--nothing.

Conversely, under my amendment, the FBI would be immediately notified of anybody who was or had been on a watch list during the preceding 5 years, and this would obviously escalate the investigation. The FBI could go to court, get a search warrant, get a wiretap, after getting the appropriate waivers, and get the sort of evidence necessary to detain or arrest, in other words, the terrorists rather than just deny them access to a firearm. If they are too dangerous to buy a firearm, they are too dangerous to be loose on our streets.

The Boston Marathon bombers, which I mentioned a moment ago, the San Bernardino jihadists, and the ISIS-inspired radicals in Garland, TX, are all examples of the fact that Islamic extremists want the American people to trade our liberties and values for fear and panic.

CIA Director John Brennan made it clear last week that this threat from ISIS, or the Islamic State, is not going away. He said that the President and just about every other member of the administration have refused to acknowledge that the administration's efforts ``have not reduced the group's terrorism capability and global reach.''

Each time an attack has happened, my colleagues on the other side of the aisle want to make this about their gun control agenda. We can have that debate, but to act like this is a substitute for dealing with the threat of ISIS, either abroad or here at home through radicalization of American citizens using social media and the Internet, is just a diversion.

I think all we need to do is to look at what the administration decided on the 911 transcripts from Orlando. Originally, they said they were going to redact those transcripts. Well, I am glad they had a chance to reconsider it because this reveals what was going on in that nightclub in Orlando. This reveals what the motivation was of the shooter. This wasn't just some street crime incident. This was a premeditated terrorist attack on American soil. Failing to release the complete 911 tapes would have been an affront not only to any promise of open government--and the administration said they were going to be the most open, transparent government in American history--but it would be an insult to the American people. You can't redact away the hurt and pain that so many are feeling from the loss of loved ones or the loss of a sense of security. You can't redact away the reality that a hate- filled killer pledged his allegiance to a terrorist organization before killing 49 Americans.

I still believe one of the administration's goals is to avoid any discussion about their failed strategy to combat radical Islamic terrorism either abroad or here at home. Instead, they decided to pivot and limit Americans' constitutional rights without due process of law.

If they can do that to the Second Amendment, can they do it to the First Amendment? How about the Fourth or Fifth Amendment? How many more provisions of the Bill of Rights do our Democratic friends believe can be denied, absent due process of law or forcing the government to go in front of an impartial judge and actually producing some evidence? We are indeed facing a serious threat from radical terrorism, both overseas and at home, and if we can't be honest and clear-eyed about who is attacking us, how in the world do we have any chance to defeat them? Because that needs to be our ultimate goal--to degrade and ultimately destroy ISIS.

We all agree that terrorists should not be able to purchase a weapon. That is not up for debate, and anybody who suggests that it is, is simply misleading you. The question before us is whether we are going to do so in a way that is constitutional. The question before us is, Are we going to do it in a way that would actually improve terrorist investigations or not?

My amendment is called the SHIELD Act, and it would stop terrorists from buying guns while ensuring that law-abiding citizens placed on a watch list by mistake don't have their rights taken away because of some secret list created by the Obama administration or by this government. And it will also--this is important--it will also set up a process to monitor, investigate, and detain terrorists where warranted by evidence. In that way, my proposal is far and away stronger than the proposal of the senior Senator from California for several reasons.

First, her amendment is unconstitutional. Last week I mentioned the problems that the late Senator Teddy Kennedy had when his name came up on a watch list by mistake. He was denied a ticket at an airport on one of his trips between Washington and Boston. After realizing the problem, he had a lot of trouble getting it resolved. And you can bet, if Teddy Kennedy had trouble getting it resolved, what kind of a chance does an average American have? He said as much. He said: Now, if they have that kind of difficulty for a Member of Congress, how in the world are average Americans, getting caught up in this kind of thing, going to be able to get treated fairly and not have their rights abused?

Senator Kennedy asked the question we all need to be asking right now. If a well-known, well-connected, and powerful public figure like Ted Kennedy had trouble getting his name removed from a watch list, do we have any confidence that average Americans won't have their constitutional rights denied with no legal process to remedy it? Our friends across the aisle wouldn't provide due process for law-abiding citizens placed on a watch list by mistake, like the late Senator Kennedy, and mine would.

Secondly, the Feinstein amendment has another fatal flaw. There are no additional tools for law enforcement to monitor, investigate, and detain suspected terrorists. My proposal not only stops them from buying a gun, it would take them off the streets.

FBI Director Comey has testified before the Senate that legislation that merely blocks a firearm transfer to a person on a watch list, without more, could actually disrupt a terrorism investigation. That is because if we automatically block the transfer, then it would tip the suspected terrorists that law enforcement is watching them and building a case, and they would simply turn to some other weapon, either illegal or manufactured. This could have tragic consequences, as a terrorist could take immediate steps to speed up their attack, obtain illegal weapons, as I said, or bomb-making materials, all the while thwarting law enforcement surveillance.

We need to be careful about enacting legislation that could, in the words of the FBI Director, effectively blow a terrorism investigation. No matter how well-intentioned, I believe that would be the effect of Senator Feinstein's amendment.

The truth is, under that amendment a motivated terrorist could buy a gun, be denied, then walk out of the gun shop and find another avenue to carry out a terrorist attack. By letting a dangerous terrorist roam free on the streets, the proposal of our Democratic friends would make us less safe, not more.

My legislation, in contrast, would not only block that person from buying a firearm because the FBI would be immediately notified and they wouldn't be able to take it with them--they would have to wait at least 3 days while the FBI conducted an additional investigation--it would also allow the authorities the opportunity to carry out that investigation, followed by an expedited court hearing where a judge could block the sale and authorize the arrest of the terrorist if, in fact, there was some evidence to prove that was the case. If the judge deems there is probable cause to block the sale, the terrorist can be immediately detained by law enforcement.

I repeat myself: If someone is dangerous enough not to own a firearm, aren't they also dangerous enough to be taken off the streets? The amendment of the Senator from California would let the bad guy go.

In this way, my proposal goes much further than our Democratic friends who have to do more to prevent terrorists from buying guns, and we have to lock them up and stop them before they kill innocent Americans too.

Importantly, my amendment would apply to anyone who was previously under an investigation for suspicion of terrorism within the last 5 years, like the Orlando attacker. The Orlando attacker wasn't even on the watch list, so I don't know what my friend from California is trying to propose here by saying that if you are on a watch list, you ought to be denied a gun. But I guess she is saying that even if you are not on a watch list, you ought to be denied a gun. We have said that if you have been on a watch list for the last 5 years, then the FBI would be provided notice.

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Mr. CORNYN. I will yield to the Senator after my remarks. I am almost through.

When similar proposals were offered in December, the amendment from the senior Senator from California didn't even get a majority of votes in this body. My related proposal back in December was bipartisan and garnered 55 votes.

I am glad the junior Senator from Indiana and the junior Senator from West Virginia--both Democrats--supported that bill then, and I hope they will do so again. Both made the decision to do what was right instead of what was politically convenient. The due process clause of the U.S. Constitution is more than just a convenience; it is, after all, our Constitution. Senators pledge to uphold and defend the Constitution of the United States, but then to vote for an amendment that would deny constitutional rights without due process of law--it sure seems intentioned with that oath.

We must advance commonsense legislation to defend ourselves against Islamic extremism, and I believe my amendment is a good place to start.

It is not the only idea. The Senator from Maine, Ms. Collins, and the Senator from Pennsylvania, Mr. Toomey, have some interesting ideas that I know they would like to develop and have a chance perhaps to vote on, but in the meantime, we need to do more to equip the FBI with the law enforcement tools they need to gather information on terrorists so that we can lock them up, and we have to be able to collect the dots before we can connect the dots.

I hope today my colleagues vote for my amendment. It blocks terrorists from buying guns, it detains terrorists if there is evidence to prove sufficient to satisfy a judge that they should be taken off the streets, and it upholds the Second Amendment to the Constitution of the United States.

Again, the question before us couldn't be clearer. We are going to vote on two proposals, both of which stop terrorists from buying guns. One is constitutional; one is not. I would strongly urge my colleagues on the other side of the aisle to support the one that is constitutional, and that would be the SHIELD Act, or the Cornyn amendment.

I yield to the Senator for a question.

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Mr. CORNYN. Madam President, I would say to my friend from California, the problem in this instance is this shooter was a licensed security guard. He was guarding a courthouse. He also had a firearms license from the State of Florida. So there is nothing about her amendment that would have prevented him from purchasing a firearm. Indeed, the only thing that might have happened would be that the FBI would be notified under the 5-year lookback provision, but the FBI had already conducted two investigations of this particular shooter and had cleared him, notwithstanding all of the troubling signals we see now in retrospect. So I still believe there is nothing in the Feinstein amendment that would have prevented this shooter from purchasing firearms because he had a firearms license already and had previously been cleared by two FBI investigations and taken off the watch list.

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Mr. CORNYN. The following Senator is necessarily absent: the Senator from Utah (Mr. Lee).

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