Usa Freedom Reauthorization Act of 2020
Floor Speech
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Mr. CORNYN. Mr. President, both at home and around the world, the fight to defeat the coronavirus seems all consuming. It has changed virtually every part of our lives, from the way we work to how we grocery shop. It dominates our conversations, our news cycles, and social media feeds. It is easy to feel like this is the only threat that the world is facing right now, but even a pandemic isn't enough to stop those who want to bring harm to our country or to the American people. As our fight against the coronavirus wages on, our dedicated counterterrorism and counterintelligence experts continue their critical work to identify potential threats against our country and to prevent them from being successful.
One of the most powerful tools in their toolbox is the ability to covertly gather information about bad actors. That is absolutely critical to national security. Yet our commitment to public safety can be at odds with privacy and individual liberty. So we, as a country, must have sincere trust in both the people and the processes that govern that activity. That is why I fear that recent events have put our trust of both in grave jeopardy.
Last December, the inspector general for the Department of Justice released his report on the FBI's counterintelligence investigation of the Trump campaign and its purported contacts with Russia. This 480- page report outlined a pattern of concerning behavior by those who were charged with protecting and defending the United States and upholding our laws. The inspector general has detailed a number of truly disturbing and alarming facts about how the Russia investigation was conducted, specifically when it has come down to the abuse of the Foreign Intelligence Surveillance Act. He has identified 7 mistakes--I think he was being generous in calling them mistakes--in the initial Carter Page FISA application and an additional 10 mistakes, or errors, in 3 renewals.
Now, these were not typos or misspelled words. These were significant and material errors that misled and affected the independent judgment of the FISA Court, or the Foreign Intelligence Surveillance Court. In other words, they presented erroneous information--sometimes by omission, sometimes by commission--which may have affected the decision of the Foreign Intelligence Surveillance Court.
To make matters worse, even as new and exculpatory information came to light, this information was not provided to the FISA Court. In a nutshell, this report raised a big red flag and led to the inspector general's conducting a subsequent audit on unrelated cases to see how widespread the problems were, but that audit revealed even more problems.
The inspector general recently released an interim report based on a sample of 29 FISA applications. For four of these, the FBI could not even locate the Woods files, which were meant to include supporting documents for the claims made in the sworn applications. For the remaining 25 applications, an average of 20 ``issues'' were found in each, with 1 application having 65 ``issues.'' You might as well use the word ``errors.'' This is alarming and absolutely unacceptable.
The Foreign Intelligence Surveillance Act has been amended several times over the more than 30 years that it has been law, particularly since 9/11. In light of these developments, it is time to, once again, strengthen the oversight of our Nation's intelligence activities and restore trust in our critical institutions.
FISA reform is part of the congressional ``to do'' list. It has been for some time, and it still is. Before key provisions could expire last year, Congress extended these authorities through mid-March to provide time for a debate over future reforms. Of course, back then, no one suspected that we would be working on a pandemic response when that deadline arrived. With the coronavirus spreading across the country, it was hardly the time to debate the long-term changes that should be made to this program. So the Senate passed a short-term extension. Had our colleagues in the House passed that bill, those authorities would have still been intact through the end of the month.
Unfortunately, as we know, that is not what happened. The Foreign Intelligence Surveillance Act's authorities expired nearly 2 months ago, and now our national security experts are without the tools they need to keep the American people safe. That must change.
The bipartisan bill that we are considering today would reauthorize certain FISA provisions that are important to our national security while it would make significant reforms to prevent future abuses like we saw in 2016. At a time when it is clearly needed, this bill would strengthen the congressional oversight of the FISA process. It would also take steps to prevent future abuse of the FISA Court by requiring transcripts of court proceedings and increasing penalties for those who knowingly abuse the process for inappropriate reasons.
One of the most significant changes we would see as a result is an end to the call detail record, or CDR, program. This program was created in 2015 to replace bulk collection with a more targeted approach, but the program has been riddled with issues from the start. Two years ago, the National Security Agency said that ``technical irregularities'' made it difficult to actually implement the program. The National Security Agency received a jumbled mess of call detail records from phone companies, and it was not able to separate the data records it should have received from the ones it should not have received. As a result, it ended up deleting all of the records dating back to 2015 when the CDR program was established. Clearly, this program was not delivering the targeted approach it was intended to provide. In fact, it just created more work--all to end up empty handed
This legislation will put an end to the CDR program. The National Security Agency has said the cost simply outweighs the benefit, but we want to make sure we are also not wasting valuable human resources on a program that is failing to achieve its intended purpose. Above all, this legislation will restore authorities our counterintelligence and counterterrorism experts need to protect the American people.
In order for these authorities to protect the American people and serve their intended purpose, we need trust--trust in the FISA Court, trust in our congressional committees, and trust in the professionals who actually work with these authorities. The USA FREEDOM Reauthorization Act will go a long way to restoring that trust while we continue to work on longer term reforms and empower our intelligence officials to carry out their sworn duties.
This bill received broad, bipartisan support in the House, and I hope it will enjoy similar support in the Senate. This legislation will ensure that these critical national security tools remain intact while it takes serious quality control measures to prevent abuse.
We can't have a repeat of the disastrous FISA abuse in 2016, and we cannot allow these critical surveillance authorities to disappear. The best of tools can be misused by people who are intent on abusing their power. That is what happened when the inspector general revealed the FISA warrants that were issued against the Trump campaign and Trump's associates in an effort to try to come up with some evidence of collusion and obstruction. In the end, not even the special counsel was able to find enough evidence to be able to make those cases.
We shouldn't confuse the tools with the people who abuse those tools. We know that the Attorney General, William Barr; Chris Wray, the FBI Director; and Mr. Durham, the U.S. attorney who has been deputized by the Attorney General, are currently conducting investigations that will, perhaps, even lead to criminal charges, indictments, and potential convictions of those who abused these authorities in the past.
That should not change our attitude toward providing these necessary tools--things like business record collection, roving wiretaps, and lone wolf authority. By and large, these are tools that are used by law enforcement on a daily basis for domestic critical cases. Yet we are going to deny those tools to our counterintelligence officials? It makes no sense whatsoever. Our counterintelligence and counterterrorism experts rely on those authorities to keep us safe, and it is time we return this critical tool to their toolbox. I look forward to supporting this legislation and to restoring these lapsed authorities, which are critical to our national security.
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