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Floor Speech

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Mr. WYDEN. Mr. President, I come to the floor today to discuss the nomination of William Barr to be Attorney General.

Today, I want to make clear that I will be opposed to this nomination for several reasons. I am just going to outline some of my key concerns that really haven't been addressed much over the last few weeks.

I am specifically concerned about his view that the President of the United States is effectively royalty, in his book, and he seems to believe that the President is unaccountable to the laws of our Nation or to the normal constraints imposed by the Congress. Today, I am going to focus on what I consider to be Mr. Barr's dangerous views on surveillance and his contempt for surveillance laws and the Fourth Amendment.

It is my view this is not a partisan issue. There has been, for some years, a bipartisan coalition in the Senate that has battled to protect the privacy and constitutional rights of Americans, but Mr. Barr's views, after I have laid them out today, ought to frighten every Member of this Senate. What Mr. Barr has said is that whether the Congress supports broader or narrower surveillance authorities and regardless of whether Congress votes for more checks and balances and oversight, it really doesn't matter. He has made the judgment, based on the proposition which he has stated very clearly, that the President can essentially do what he wants.

This nominee, in my view, poses a unique threat to the rule of law and the Fourth Amendment. His long-held views, which presumably he would put in practice if confirmed, threaten the very notion that Congress or the courts have any say in who in America gets spied on. If he is confirmed as Attorney General, he could take us back--and not just 12 years to an era of warrantless wiretapping. As Mr. Barr himself has made clear, he would be taking us back 40 years, to an era before the Church Committee, when neither Congress nor the courts had any role at all in checking or overseeing an abusive, out-of-control government.

Before the reforms of the 1970s, as has now been well documented, the government committed one horrific abuse after another. It spied on hundreds of thousands of innocent Americans. It spied on Dr. Martin Luther King, Jr. It spied on activists. It spied on Congress. When these abuses finally came to light, Congress acted by passing the Foreign Intelligence Surveillance Act, which established a secret court to issue warrants against spies and terrorists.

Unfortunately, as we now know, the government violated the law when it implemented its warrantless wiretapping program in 2001. The program included warrantless collection of the content of private communications, including through warrantless targeting of phone numbers and email addresses of people in our country. The program also included the bulk collection of phone and email records of enormous numbers of innocent, law-abiding Americans. All of this occurred in secret, without warrants or any judicial oversight at all, and almost no one--no one in the Congress, nor even most members of the Intelligence Committee--knew anything about it.

The secrecy didn't even end when the bulk phone and email record programs were moved under the Foreign Intelligence Surveillance Act. The Obama administration, just like the Bush administration, kept this abusive program and the secret legal interpretations behind it from the American people, even lying about it in public testimony.

How did these abusive and illegal programs get their start? With secret determinations made at the Department of Justice that the law didn't matter and that the President can do what he wants.

That brings us to Mr. Barr. His dangerous views on Executive power have long been consistent--consistent--throughout his career, from his writings at the Department of Justice in the late 1980s to the present, but in October of 2003, he laid out in public testimony his position that, in Mr. Barr's view, the President is not accountable to surveillance laws and that the President enjoys huge loopholes in the Fourth Amendment.

October of 2003 was shortly after Congress had passed the PATRIOT Act, legislation that many in Congress have come to view as granting too much authority with too little oversight, but from Mr. Barr's perspective, the PATRIOT Act was too limiting and too constraining, and that wasn't even the most troubling part of his testimony. Right up front, he asked himself the question of whether the law was adequate to fight terrorism. Here is what he said. He said he wasn't worried about the law, and this is a direct quote: ``The critical legal powers are granted directly by the Constitution itself, not by Congressional enactments.'' In other words, Mr. Barr's view of surveillance is that the laws passed by Congress do not matter. If the President wants to violate them, it is Mr. Barr's position that he can just go out and say he has constitutional authority and do it.

Here is a direct quote from Mr. Barr's testimony. Talking about laws going back to the 1970s, he said: ``Numerous statutes were passed, such as [the Foreign Intelligence Surveillance Act], that purported to supplant Presidential discretion with Congressionally crafted schemes whereby judges become the arbiter of national security decisions.''

I am going to unpack that sentence for a minute. From Mr. Barr's perspective, decades of laws passed by the U.S. Congress are nothing but schemes--schemes. He is talking about the Foreign Intelligence Surveillance Act, a fundamental framework of checks and balances that Congress has relied on for four decades to ensure congressional and judicial oversight of surveillance. He is talking about every modification of the Foreign Intelligence Surveillance Act, from the PATRIOT Act to what is called section 702, reauthorized last year, to the USA Freedom Act, which was intended to stop the collection of millions of innocent Americans' phone records. Whatever you think of these statutes, they are how Congress determines the extent of the government's surveillance powers and exercises its responsibility to protect the rights of Americans. Mr. Barr notwithstanding, these duly enacted laws of Congress are not mere schemes.

Worse still, it is Mr. Barr's contention that all of these laws only purport to have any effect. The President, says Mr. Barr, has the discretion to ignore them. By definition, if you are saying that the President can just ignore the laws, in effect, that is a position that is in favor of tyranny. This is as dangerous a position as I have heard in congressional testimony. It is very similar to the language that was concocted in the Department of Justice to justify warrantless wiretapping--and these are the views coming from the man who might be Attorney General of the United States.

Mr. Barr is correct that the Foreign Intelligence Surveillance Act gives judges some say in when the government can spy on Americans. It is a secret system, one that greatly advantages the government and almost always precludes challenges from those who are spied on. The Foreign Intelligence Surveillance Act has been abused through secret interpretations of law, but the Foreign Intelligence Surveillance Act does involve judges considering the Fourth Amendment rights of Americans, and that is what Mr. Barr objects to.

Based on his own testimony, it is clear to me that Mr. Barr has fundamental problems with the Fourth Amendment or at least its application to anything the President might unilaterally decide involves national security. He believes that if the government determines there is a threat, there is no need to ask a judge for a warrant.

The Fourth Amendment protects the rights of the people to be secure against unreasonable searches and seizures unless there is a probable cause warrant. That is what the Constitution says. Mr. Barr, however, has found two very big loopholes in the Fourth Amendment.

First, he insists that if the government decides a foreigner in the United States is ``apparently acting as a terrorist,'' then he or she is not one of the ``people,'' and the government can just throw out the Fourth Amendment.

Second, Mr. Barr argues that so long as the government says there is a threat, a warrantless search is not unreasonable, and the warrant requirement under the Fourth Amendment simply doesn't apply.

At the core of Mr. Barr's philosophy is that no one--not Congress and certainly not judges--has any business assessing the government's assertion about threats.

Here is another quote from Mr. Barr: These are ``assessments judges are not competent to make or responsible for making under the Constitution.''

For 40 years, judges of the Foreign Intelligence Surveillance Act Court have been making these determinations, but, from Mr. Barr's perspective, the courts are not competent to decide who gets spied on; only the President gets that power.

Some might ask whether Mr. Barr has had a change of heart, particularly since Congress has passed additional surveillance authority in the year since his testimony. I hope we see in the days ahead where he stands, whether he now believes that spying on Americans and people in the United States has to be consistent with the laws passed by Congress, but his 2003 testimony suggests that even new, sweeping, bipartisan laws that have passed wouldn't satisfy him.

A little over a decade ago, Congress created section 702 of the Foreign Intelligence Surveillance Act. That allows for warrantless spying on foreigners overseas. I have said our country faces real threats from foreigners overseas, so I stipulate that is something that is important to the safety of the law-abiding people whom we all represent. I have had serious concerns about the number of innocent Americans whose communications are being swept up under section 702 collection, but at least the targets of the surveillance are overseas.

Mr. Barr would go further in his testimony, calling for the warrantless targeting of people inside the United States. According to Mr. Barr, there are individuals right here in the United States who have no Fourth Amendment rights. This is an important issue today, and it will become more important in the days ahead.

I have already stipulated that I think there are serious threats to our country overseas. What troubles me is, as telecommunication systems around the world become more globally interconnected, more and more innocent Americans are going to get swept up in these searches. To me, when you are talking--as Mr. Barr seems to be doing--that there are individuals in our country who have no Fourth Amendment rights, that is why I think all Senators should be troubled about these positions he has long espoused.

There is also the matter of collecting business records, sensitive information about Americans that are in possession of a third party. Here, we are talking about your purchases, who you are communicating with, where you are located at any time of the day.

Mr. Barr believes that the Fourth Amendment doesn't apply to any records held by a company or other third party, no matter how sensitive that information is. This view has actually been rejected recently by the U.S. Supreme Court. What Mr. Barr has been saying is actually out of sync even with the current thinking of the Supreme Court. The Supreme Court most recently held that the Fourth Amendment does apply to the government's collection of location data from wireless carriers.

Apparently, yesterday Mr. Barr said he had not read that Supreme Court decision. Colleagues. I think that ought to be really troubling to the Members of this body. We are talking about location data. Location data can be a personal safety and national security nightmare.

We saw what happened just last week. In 2018, the wireless companies all made promises to me that they wouldn't make available precise location data to hedge funds, bail bondsmen--all kinds of bottom feeders just looking to make a buck. What happened was, in 2018, those wireless companies said they wouldn't make that data available any longer to these location trackers and bail bondsmen and the like, and then last week, a bounty hunter got 300 bucks and found out those 2018 promises to me meant nothing. So last week, the wireless companies promised again that they wouldn't make location data available to all of these financially interested parties. I appreciate their saying it, but I will tell you, I will believe it when I see it, because we got a promise in 2018 that they would be serious about protecting location data, and we saw last week that they weren't.

We have the Supreme Court now making it clear that the Fourth Amendment applies to the government's collection of location data from wireless carriers, but the person who is up for nomination, Mr. Barr, has not been willing to or doesn't find it important enough to even read the Supreme Court decision on this case.

The government's collection of business records is authorized by section 215 of FISA, which was part of the PATRIOT Act. There are serious concerns about 215. It was abused for years to carry out a secret program that swept up the phone records of millions of innocent, law-abiding Americans. Even after the USA FREEDOM Act, which was intended to end bulk collection, it has been used to collect hundreds of millions of phone records. All the government needs to collect these records is to show the FISA Court that the records are relevant to an investigation. There is no requirement for a probable cause warrant.

This important law sunsets this year, so the Congress will have a debate about whether these authorities are too broad, whether there is a need for more checks and balances. I see my colleague from Texas, who also serves on the Intelligence Committee. We are going to have a debate on it. That is the way it ought to be.

Today, we are talking about what I consider to be dangerous views espoused by Mr. Barr. What Mr. Barr believes is that the government shouldn't have any court oversight at all when it comes to collecting the records on Americans. He thinks the government should just unilaterally issue a subpoena and collect those records and that there would be no oversight whatever. The foundation of Mr. Barr's beliefs when it comes to surveillance is that the President can do whatever he wants if he believes national security is at stake.

I am going to close by simply talking for an additional minute or two about what it will mean if Mr. Barr is confirmed as Donald Trump's Attorney General.

Right now, the President is openly considering a declaration that he, Donald Trump, has emergency powers to override the will of the Congress, and he is doing this while relying on a baseless assertion that there is a national security crisis.

Until he was fact-checked, he was making very far-fetched claims about terrorists coming over the border. He also regularly calls journalists ``enemies of the people'' and calls for investigations of his political enemies.

I would oppose the nomination of anyone with William Barr's views on Executive power regardless of who was President, but the kinds of threats I am talking about are too serious to ignore.

Donald Trump has openly said and said specifically how much he would enjoy unchecked surveillance power. During the 2016 campaign, when the Russians were hacking his opponents, the President of the United States, our current President, said: ``honestly, I wish I had that power. I'd love to have that power.''

If Donald Trump decides that national security is at stake and William Barr is the Attorney General, it would be Mr. Barr who might give him that power--power he could use with no oversight from the courts and without regard to what Mr. Barr has dismissed as ``the schemes''--our laws--of Congress.

In case anyone thinks Mr. Barr would himself serve as a check on the President, he has also written that that is not the Attorney General's job. Just last year, he wrote that all Executive power rests in one and only one person--the President--and that the President doesn't have to convince his Attorney General that his orders are legal.

Let me be clear. The issues I have raised with respect to Mr. Barr's views on surveillance are not kind of conjecture or possible theories. What I have been talking about this afternoon are the views outlined in Mr. Barr's own testimony. I hope every Member of this body will take the time to read Mr. Barr's testimony and consider what is at stake.

There are Members in both political parties in this Chamber who have long been concerned about the expansive surveillance authorities under the Foreign Intelligence Surveillance Act and the possible abuse of that law. Those concerns are, in my view, small potatoes compared to what Mr. Barr has proposed, which is that the law need not constrain the President whatsoever. For example, some Members of this body have expressed concern about Foreign Intelligence Surveillance Act warrants in connection with the Russia investigation and whether all relevant information has been provided to the FISA Court. Consider a world in which the government doesn't need a warrant and doesn't have to justify its surveillance to any court. Consider the possibility of abuse in that world. That is the world Mr. Barr has testified he wants.

I also would appeal to my colleagues with whom I have had some pretty vigorous debates over the years about surveillance and who may have no concerns about the current framework of our laws. We can have our disagreements about how to write the law. Here in the Senate, we do agree that the laws passed by the Congress mean something. They are binding, and they are not, as Mr. Barr has stated, ``schemes'' that the President can just ignore whenever he feels like it.

This nominee has been more than clear about where he stands. He believes that the President alone decides when there is a threat and that when he does, he doesn't have to worry about Congress, judges, or the laws, or the Constitution. In my view, that is a prescription for trouble, a prescription for more abuses--abuses that Congress may or may not even be told about. But we have been warned. We have been warned by Mr. Barr's testimony.

I also would like to note that I have concerns about Mr. Barr that relate to classified matters, and I am currently seeking declassification of those matters and hope that this will be resolved prior to any votes on the nominee.

I see colleagues are waiting.

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Mr. WYDEN. Mr. President, a few minutes ago, I got off the phone with Jasmine Tool, who is an Oregonian living with an inoperable brain tumor. As the shutdown lingers on, I want to share her story because she has been bearing the unthinkable consequences of her illness.

I am going to start today by asking: How can a country as rich and good and strong as the United States of America let Jasmine Tool suffer this way?

She is a 34-year-old mother of two young children. She lives in Lake County, a rural community in south central Oregon. She is a public servant, an employee of the U.S. Fish and Wildlife Service. She has been living with an inoperable brain tumor. The cancer has caused related debilitating conditions. She is in and out of hospital emergency rooms. Her digestive system is impaired. With the invaluable care provided by a home health worker, she takes in liquids and nutritional infusions through tubing that is plugged into her abdomen.

Because she lives in a rural area, her treatment can require long- distance travel. That is hard to deal with when you are suffering from the flu. Just imagine how hard it is with a brain tumor, a broken digestive tract, and feeding tubes attached to your body that prevent you from eating or drinking normally.

She is confronting this health challenge with remarkable bravery, and I don't believe there is a single Member of the U.S. Senate who would wish Jasmine's struggle on their very worst enemy.

Then comes the government shutdown.

Jasmine was due to travel to Nevada this month for treatment related to her tumor, but last week, as she was prepared to go, she was informed that her health insurance had lapsed. Initially, she thought it might be--we all know with insurance--kind of a recent hiccup or recent problem, something that could be corrected quickly.

This week, she learned that it lapsed in October--October, months ago--and her insurance company told her that only her employer could fix it.

Jasmine's employer is shut down. Nobody is answering the phones. Right now, Jasmine Tool is suffering--this mother of two--and is unable to determine what caused the lapse in her coverage or what can be done to get it fixed.

The most immediate threat is this: Jasmine was told that her home health assistant cannot continue to help her if she doesn't have insurance. That means that within days this 30-year-old mom will not be able to get the infusions she needs to stay alive.

Now, if that isn't enough, Jasmine has been failed by the government on multiple occasions. Shortly after she went on medical leave in early 2017, she began the process of applying for disability--disability retirement. She worked with the appropriate human resources official to prepare the paperwork to send to the Office of Personnel Management. She thought, as anybody would, that the process was underway and she would hear back soon about the results of her application.

She just learned recently that the official who prepared the documents retired without sending them in. For a year and a half, while Jasmine fought cancer and was just hoping to get some positive news, her disability paperwork sat in an unused office--just sat there collecting dust.

She had to travel to that office against her doctor's orders to finalize the paperwork once more and prevent a loss of benefits. But the Office of Personnel Management--that is shut down too. Jasmine hasn't been able to learn where her benefits stand.

It is too cruel already that thousands and thousands of American workers are going without paychecks. This shutdown is making victims of those who do public service. But consider what it is doing to this young mother of two, a woman who is currently fighting for her life right now.

Because of this shutdown, she can't figure out how to restore her health insurance. She can't get the status of her disability application. She could be cut off--I just talked to her--from her nutritional supplements in a matter of days. That means Jasmine could starve. That is what she just told me.

So I have been talking to people who have suffered from health challenges for a long time--director of the Grey Panthers about 7 years at home. I listened to Jasmine and I just said: How can it be that there is no outbreak of conscience here--no outbreak of conscience here in this Senate? How can a country as rich and powerful as ours fail Jasmine in such a shameful way?

Our country is going to spend $3.5 trillion on healthcare--$3.5 trillion on healthcare--this year. It is not a lack of money that is causing this nightmare for Jasmine Tool in rural Oregon.

With the government reopened, things would be different. Things would be very different for Jasmine. There would be somebody on the other end of the phone line to tell Jasmine what happened to her insurance, and because of the professionalism of those in these positions, I think they could tell her how to renew that insurance. There would be somebody to tell her what is happening with her disability application. Jasmine could bring back her home health aide and get the infusions she needs to survive.

So I am asking the Senate, how can this be allowed to continue? How can this be allowed to continue? The Senate passed a bipartisan government funding bill by voice vote just 2 weeks ago in the previous Congress.

I see Senator Collins. She has a longstanding interest in these healthcare issues. Senator Sasse also, I know from our conversations, has a heart and cares about people.

The House passed this legislation. The pathway out of this shutdown is right in front of us if the majority leader would decide when to bring up the legislation again, and we could do it tonight. Jasmine Tool could get the lifesaving healthcare that she needs, based on our conversation, by week's end, so she will not starve.

Otherwise, unless the majority leader calls it up, it seems to me the White House has no plan to end this shutdown. So I just think it has to end right here--right here in the U.S. Senate, where all of us say: This cannot go on any longer.

I just spoke to a young mom in rural Oregon who is in a fight for her life, a fight for her survival.

Colleagues who are here, I am sure Jasmine is not the only such case in America. Jasmine Tool--my guess is, there are plenty of others in communities across the country. Jasmine Tool does not have the luxury of time.

I am going to go back to my office. My staff here, my staff folks in Oregon--we are just going to be pulling out all the stops now because it really is a matter of hours to get Jasmine the help she needs. We do it recognizing that there is only one immediate solution: The shutdown must end, and it must end now.

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