Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016
Floor Speech
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Mr. WYDEN. Mr. President, I say to my colleague that I just walked in and I am prepared to speak on another subject, whenever it is convenient for my colleague.
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Mr. WYDEN. Mr. President, I believe the next vote will take place on the amendment offered by the senior Senator from Arizona that would allow for the issuance of what are called national security letters, or NSLs, which are administrative subpoenas, and there will be an additional provision on what is called lone wolf. I am going to direct most of my comments for colleagues on the national security letters because the lone wolf provision was reauthorized for another 4 years as part of the USA FREEDOM Act.
I want colleagues to understand that this tool, which certainly has been debated, while never used--it wouldn't have applied to the Orlando or San Bernardino cases--I want colleagues to understand that it is the law of the land today, and in the USA FREEDOM Act, it was extended for another 4 years.
What I would like to do, though, is focus my remarks on the amendment from the senior Senator from Arizona as it relates to national security letters. In effect, what the senior Senator from Arizona is seeking to do is add back a provision that the administration of George W. Bush-- not exactly an administration people would accuse of being soft on terror--the senior Senator from Arizona is seeking to add back this provision that was rejected by the administration of George W. Bush.
Here is how the amendment offered by the senior Senator from Arizona would work. Under his amendment, which we will vote on tomorrow, national security letters, which are called NSLs, could be issued by any FBI field office to demand records from a company without going to a judge or without any other oversight whatsoever. So let's repeat that because what colleagues have wanted to know is exactly what this would cover. The McCain amendment would allow for the government to demand email records, text message logs, Web browsing history, and certain types of other location information without any court oversight whatsoever.
As I have indicated, this had been on the books for a number of years, and the administration of George W. Bush said it was unnecessary--in effect, that it was unnecessarily intrusive.
In addition, since the Bush administration acted, I want to make mention of the fact that in the USA FREEDOM Act, the Congress adopted something I have been working on for a number of years--since really 2013--to, in effect, give the government additional authority in the case of emergencies.
In other words, I have always felt the Fourth Amendment and the warrant process was something that was very special in our country, but we live, of course, in a very dangerous time. We are all concerned about the security and the safety and the well-being of the people we represent. So I said, in section 102 of the FREEDOM Act, let's make sure the FBI has all the authorities necessary to protect the American people in the instance of an emergency. So the USA FREEDOM Act gave the FBI the authority to demand all the records they deemed necessary and then, in effect, after the fact--after the fact--come back and settle up with the court. So unless you are opposed to court oversight after the fact, unless you are opposed to court oversight altogether, there is no reason to support the amendment offered by the senior Senator from Arizona.
A number of colleagues have also asked about the history of these national security letters. There is a long history of abuse and misuse, a long and very undistinguished record of abusive practices.
The Justice Department inspector general has issued four separate reports over the past few years--four separate reports--documenting a number of serious problems. The inspector general found that data collected pursuant to the national security letters was stored indefinitely and used to gain access to private information in cases that weren't relevant to an FBI investigation, and the national security letters were used to collect tens of thousands of records at a time.
Some have also made mention of the fact that a company that gets one of these national security letters could challenge it in court. That is technically right. Big companies that have the resources can challenge them. The small companies invariably say they can't afford to do that. So, again, no oversight. No oversight--particularly striking given the fact that, as I have noted, in the FREEDOM Act--something I felt very strongly about--we gave the government additional authority in the instance of emergencies.
So we have now, by virtue of the amendment we will vote on tomorrow from my friend and colleague--we certainly have agreed on plenty of issues over the years. This is one where we see it differently. You have something the Bush administration rejected. The administration of George W. Bush--hardly one that we would say is sympathetic to the idea of weakening the government's stance against terror--they thought this was a mistake. They thought the amendment that there will be an effort to add back in was a mistake, and it was taken out. This would not have beefed up the fight against what happened in San Bernardino and Orlando.
The FBI says it would help them with paperwork. I am not going to quibble with that. I have great respect for the FBI. But we are going to abandon court oversight in an area where the inspector general has documented abuses because it is convenient?
Colleagues, I will close with this: It is a dangerous time. If you sit on the Intelligence Committee, as I have for a number of years, you know that is not in question. The American people want policies that promote their security and their liberty. That is what we are aiming for. What is being advanced in this amendment is an idea that really doesn't do either. It doesn't advance the security and well-being of the American people, and it certainly erodes their liberties.
So I hope tomorrow, when we have the vote on this amendment, that colleagues will look at the history. It was rejected by the Bush administration. Now we have emergency authority, I say to my colleagues, for the government to get information when it needs it. After the fact, the government can come back and settle up.
I think this amendment is a very substantial mistake. There has been a long history documented by the inspector general of abuses with these national security letters. I urge my colleagues tomorrow to oppose this amendment.
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Mr. WYDEN. Mr. President, the senior Senator from Arizona--whom, as I mentioned, I have worked with often--has said, in effect, if you oppose his amendment, you are interested in privacy.
The reality is, my interest is in privacy and security. I believe it is possible to have both, and I want to explain how that is the case.
Something I worked on for a long time, the USA FREEDOM Act, we included section 102. Section 102 very explicitly said that if the government--if the FBI, in a situation like Orlando or San Bernardino, for example--if the government believed it needed information immediately--immediately--the government could get the information and then go back to the court after the fact. In effect, after the government had been able to get the information of its own volition, settle up immediately so as to protect the American people.
This debate is about are we going to have policies that advance both our security and our liberty. I have felt very strongly--I see my seatmate, the distinguished ranking member of the Appropriations Committee. We sit next to each other on the Intelligence Committee. We talk about these issues very often. As part of the USA FREEDOM Act, I pushed very hard to make sure the government had those emergency authorities.
This is a dangerous time. Nobody disputes that. If you have been on the Intelligence Committee, as Senator Mikulski and I have been for so many years, that is not in question. This is a dangerous time.
No. 1, the question is, Are we going to have both security and liberty? In my view, that is where the amendment from the senior Senator from Arizona comes up short.
No. 2, the Senator from Arizona has said the problem he seeks to correct was just a typo, kind of a clerical error--not even close.
The debate back in 1993--we have the record, the House, the Senate, the FBI. It was very carefully crafted in a way to ensure that there would not be abuse in the digital area. When you look at that specifically, that is very clear. This was not a typo. This was carefully crafted--House, Senate, FBI--in 1993.
When my friend from Arizona says it was a typo--not even close. I hope colleagues will avail themselves of our offer to look at the record.
Right now, nobody from the government, the FBI, has said, if it had the power the Senator from Arizona seeks to give the government--nobody in the intelligence field or in the government said it would have prevented Orlando.
The fact is, the government has the authority, the emergency authority, and it was something I pushed very hard for. It was right at the core of my belief that we ought to be pushing for both security and liberty at a dangerous time and that the two are not mutually exclusive. So we added to the USA FREEDOM Act that emergency authority for the government.
It is also true, the administration of George W. Bush specifically rejected the idea the Senator from Arizona is calling for. They specifically said this has created problems. There have been four separate inspector general analyses that support that.
As we continue this discussion, I hope colleagues will see that we ought to keep the focus on both security and liberty. That is why the emergency authorities we got in the USA FREEDOM Act are so important. They are intact. They can be used for any situation--Orlando, San Bernardino, any other--that the government, the FBI, feels the security and safety of the American people are at stake.
With respect to the lone-wolf provision, which I heard my colleague mention, we reauthorized that for 4 years in the USA FREEDOM Act. I supported that as well.
I just hope colleagues will think through the implications of the amendment from the Senator from Arizona because under what he is talking about, a national security letter, what is called an NSL, can be issued by any FBI field office to demand records from a company without going to a judge. To support this, in effect, you basically are saying you don't support oversight, you don't support court oversight, because we have given the court and the government the ability to move quickly.
I hope tomorrow we don't conclude that the FBI ought to be able to demand email records, text message logs, Web-browsing history, and certain types of information without court oversight.
The Senator from Arizona said: Well, you are not going to get all the content of those emails.
That is true, but the fact is, in a lot of instances, when you know who emailed whom, you know a whole lot about that person. If somebody emailed the psychiatrist four times in 48 hours, you know a whole lot about the person. You don't have to see all of the content of the emails.
Colleagues, we will discuss this some more, but I hope Senators will see this is about ensuring there is both security and liberty. The government has not said or intimated that if they had the power the Senator from Arizona seeks to put back--that the Bush administration rejected--the government has not said or intimated this would have prevented the horrific tragedy in Orlando.
I hope my colleagues will oppose the McCain amendment tomorrow.
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Mr. WYDEN. Will my colleague yield for a question?
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Mr. WYDEN. I appreciate my colleague yielding, and I am a very, very strong supporter of her amendment because I think the idea of adding more resources is absolutely essential.
As I look at these cases--and she and I have talked about this on the Select Committee on Intelligence--we know that the workforce is aging in the intelligence community. We are going to need more dollars for the personnel we are going to need and certainly a lot of resources in a variety of areas. Is that my colleague's intention, to make sure we get the resources to, in effect, get out in front of these upcoming threats?
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Mr. WYDEN. If my colleague will continue to yield, just briefly, what my colleague has stated--and I strongly agree with--is that she is trying to assure that the resources are there for the future.
I am not going to drag my colleague into the earlier discussion, but what I am concerned about, and have been, is that the Senator from Arizona is relitigating the past. In effect, when the Bush administration took away the power because it was too intrusive, he wanted to go back to it.
But apropos of my colleague, isn't that the heart of her case--that she is looking to the future--FBI resources, resources to deal with hate crimes, resources to deal with prevention? It seems to me she is trying to lay out a plan for the future.
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