Ensuring Tax Exempt Organizations The Right To Appeal Act -- Motion To Proceed

Floor Speech

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Mr. CORNYN. Mr. President, in February, the Director of the National Counterterrorism Center estimated that nearly 20,000 foreign fighters had joined ISIS or other related groups in Syria. Among those, some 3,000 were from Western countries. In other words, many of them either had American passports or those that are part of the visa waiver program and could travel, really, without anything other than that passport in the country. Over 150 were from the United States.

Just last week, in describing the widespread nature of this growing threat, FBI Director James Comey said that the FBI is working on hundreds of investigations in the United States, hundreds of investigations. In fact, according to Comey, all 56 of the FBI's field divisions now have open inquiries regarding suspected cases of homegrown terrorism--again, not people coming from Syria or Afghanistan or someplace in the Middle East, these are often Americans who have become radicalized due to the use of social media or the Internet--much as 5 years ago we saw at Fort Hood, TX, a major in the U.S. Army, Nidal Hasan, who had been radicalized by a cleric, Anwar al-Awlaki.

Major Hasan actually pulled out his weapon and killed 13 people, 12 uniformed military, 1 civilian, and shot roughly 30 more in a terrible terrorist attack at Fort Hood, TX.

So today we are not just worried about a major attack on a significant cultural or economic hub, we also have to worry about ISIS-inspired terrorists all around the country, even as we witnessed in my home State of Texas just on May 3.

When you begin to look at the story--that I will ask to be made part of the RECORD--written by the New York Times on May 11, 2015, it explains how this new threat of homegrown terrorism is inspired. I will quote a few pieces of it:

Hours before he drove into a Texas parking lot last week and opened fire with an assault rifle outside a Prophet Muhammad cartoon contest, Elton Simpson, 30, logged onto Twitter.

``Follow @ XAbuHu55ain,'' Mr. Simpson posted, promoting a Twitter account believed to belong to Junaid Hussain, a young computer expert from Birmingham, England, who moved to Syria two years ago to join the Islamic State and has become one of the extremist group's celebrity hackers.

Well, there is a question--as the article goes on to say--whether or not Mr. Simpson and his colleague, who came, I believe, from Phoenix, AZ, and went on to Garland, TX, to carry out this attack--whether they were actually recruited ahead of time by ISIL or whether ISIL just claimed credit after the fact. But the article goes on to say:

It was the first time that the terror group had tried to claim credit for an operation carried out in its name on American soil. ..... Yet Mr. Simpson appears to have been part of a network of Islamic State adherents in several countries, including the group's hub in Syria, who have encouraged attacks and highlighted the Texas event as a worthy target.

Mr. President, I ask unanimous consent to have printed in the Record, following my remarks, this New York Times article from May 11, 2015, and a Wall Street Journal article from May 12, 2015, by Michael B. Mukasey.

So what FBI Director Comey has expressed concern about recently is apparently very real. It is as real as the daily newspaper recounting the attack on May 3 in Garland, TX, of all places.

Terrorists are sending a clear signal to those in the United States and other Western countries: If you can't fight us abroad, we are going to bring the fight to you in your own country.

This heightened threat environment has led Pentagon officials to raise the security level at U.S. military bases. The last time the threat level was raised to this level was the 10th anniversary of the September 11 attacks.

I still remember when the former admiral, Bobby Inman, who served for a long time in the Navy and then also in the intelligence community, was asked about 9/11. He said: It wasn't so much a failure of intelligence, as it was a failure of imagination.

Nobody imagined that terrorists would hijack a plane and fly it into one of our Nation's highest skyscrapers, thus, in the process, killing approximately 3,000 people.

So we need to remember not to have a failure of imagination when it comes to the tactics used by terrorists and those who inspire them abroad. Remarks like those from Director Comey and the Director of our National Counterterrorism Center are certainly troubling ones for us to hear, and it counsels caution.

While the United States has been mostly successful in thwarting attacks on our homeland since 9/11, the threats are still very real. In fact, the terrorist threat has evolved and become more complex in recent years.

In Texas, we rightly recognize that the role of government should be constrained to focus on core functions. At the Federal level, of course, this means things such as passing a budget.

But surely it also means protecting our country and its security and the security of the American people.

That brings me to some business that we are going to have to conduct here in the Congress sometime within the next couple of weeks before certain provisions of the U.S. PATRIOT Act expire on June 1. I believe that if we allow these provisions to expire, our homeland security will be at a much greater risk. So I think we need to talk a little bit about it and explain not only the threat but what our intelligence community and our national security officials are doing, working with Congress and the administration, to make sure Americans are safe, and the PATRIOT Act is part of it.

I recognize there are many who perhaps haven't read the PATRIOT Act or whose memories have perhaps dimmed since those terrible events on 9/11 and who think we don't need the PATRIOT Act. But I would argue that the PATRIOT Act serves as a tool for intelligence and law enforcement officials to protect our Nation from those who are seeking to harm us. Three of those useful tools will expire at the end of the month, including section 215, which allows the National Security Agency to access certain types of data, including phone records.

There has been a lot of misunderstanding and, frankly, some of it downright deceptive, about what this does, when, in fact, section 215 is a business records collection provision that happens to be applied to collecting phone records but not the content of phone records. This is one of the misleading statements made by some folks who think we ought to let this provision expire.

Right now, under current law, which is set to expire June 1, our intelligence community can get basically three types of information about a phone record: the calling and receiving number, the time of the call, and the duration. That is it--no content, no names or addresses. You can't even get cell tower identification that would tell one where the call is coming from.

Much has been said about this program, and, as I said, much of it misleading or downright false, but I want to focus now on the oversight that is built into this program because I think Americans understand we need to take steps in a dangerous world to keep the American people safe, but they also value their privacy, and justly so. We all do. So it is important to remind the American people and our colleagues as we take up this important provision of law about what we have already built into the law to protect the privacy of American citizens who are not engaged in any communication with foreign terrorists or being inspired by foreign terrorists to commit acts of terrorism here in the homeland.

Let me talk about the barriers we have created in the law for an NSA--National Security Agency--analyst to overcome before seeing any real information from this data. First, for the NSA to have access to phone records at all--at all--a special court must approve an order requiring telephone companies to provide those call records to the Agency. That order has been in place since roughly 2006, where the Foreign Intelligence Surveillance Court, the specialized court created by Congress for this purpose, has issued an order requiring the telephone companies to turn over these call records--again, no content, no name and address, but merely the sending number, the receiving number, and the duration. That is the core information which is required.

It is important to point out that these records include only the most basic limited information. They do not include the information I suggested earlier--the content, names and addresses, and the like.

So the National Security Agency is not, as some have assumed wrongly, able to retrieve old phone conversations. They do not collect that sort of information, nor are they able to simply listen in on any American's phone conversations under this authority. That would be a violation of the protections Congress has put in place under the provisions of the PATRIOT Act.

Before an analyst at the NSA can even search for or query the database, they must go through even more controls, and these are important. To be granted the ability to search the database, the analyst must demonstrate to the FISA Court--the Foreign Intelligence Surveillance Court created by Congress for this purpose--that there is a reasonable, articulable suspicion that the phone number is associated with terrorism.

This is similar--not the same but similar--in many respects to the protections offered in a criminal case under the Fourth Amendment to the Constitution where law enforcement agencies would have to come in and establish probable cause that a crime has been committed before a search would be allowed. But since this is an investigation into foreign-induced terrorist activity, the standard Congress set was a reasonable, articulable suspicion that the phone number is associated with terrorism. If the court determines that standard has been met, they can grant access to the conversation but not under any other circumstance.

If the NSA believes the phone number belongs to someone who intends to attack our country, the Agency must go back to court another time to be granted other abilities to surveil that individual.

In addition to these checks and balances between the National Security Agency and the courts, all three branches of government have oversight over this program. And strong oversight of the intelligence community is absolutely essential to safeguarding our freedoms and our liberty.

Because parts of this program are by and large classified, you are not going to hear public debates about it. Indeed, that puts defenders of the program at some disadvantage to those who attack it--sometimes in a misleading or deceptive sort of way--because it is very difficult to counter that with factual information when they are talking about a classified program, or parts of which are classified. It is important that our enemies don't know exactly what we are doing because then they can wire around it.

We live, of course, in a world with many threats, as I said, many of them in our backyard. Many of them can be thwarted with good intelligence and law enforcement. And I make that distinction on purpose--intelligence and law enforcement. Law enforcement--as we learned with 9/11, we can't just treat terrorism as a criminal act. It is a criminal act, but if we are going to stop it, we need access to good intelligence to thwart it before that act actually occurs. It is not enough to say to the American people: Well, we will deploy all of the tools available to law enforcement to prosecute the person who murders innocent people. We need to keep the commitment to protect them from that innocent slaughter in the first place, and the only way we do that is by using legitimate tools of intelligence, such as this program I am discussing.

Earlier this year, for example, the United States frustrated a potential attack by a man from Ohio. He was an ISIS sympathizer and had plans to bomb the building we are standing in today, the U.S. Capitol. That potential attack was thwarted by the use of good intelligence under the limitations and strictures and procedures I described a moment ago. Over the past 2 years, the FBI has told us they have stopped 50 American citizens from traveling overseas and joining the Islamic State and then coming back. So clearly the intelligence community has a vital role to play in safeguarding the American people in our homeland.

Some in the intelligence community have said the bulk data collection I have described here briefly has led to a safer United States, and it is because of programs such as these that we are much better off than we were pre-9/11. That is very important because the last thing I would think we would want to do here in Congress is to return us to a pre-9/11 mentality when it comes to the threat of terrorism both abroad and here at home and to make it harder for our national security personnel to protect the American people.

I believe the portion of the PATRIOT Act in question provides our intelligence community with the tools they need in order to effectively protect all Americans.

I have been briefed on this program. We just had a briefing yesterday by the Office of the Director of National Intelligence, by the FBI Director, by DOJ personnel, and by the leader of the National Security Agency. It was held downstairs in a secure facility because, as I said, much of it was classified. Much of it we can't talk about without alerting our adversaries to ways to circumvent it. But all responsible Members of Congress have taken advantage of the opportunity to learn about how this program works as part of our oversight responsibilities.

I remain convinced that this program, like many others, has helped to keep us safe while using appropriate checks and balances to ensure that our liberties remain intact. And Congress, by maintaining strong oversight of these and other government programs, can have a win-win situation that both protects American lives and protects American liberties.

Mr. President, I want to draw my colleagues' attention to an opinion piece that appeared today in the Wall Street Journal that was written by Michael B. Mukasey, who, of course, was a former U.S. district judge and more recently Attorney General of the United States from 2007 to 2009. General Mukasey writes in this article about the Second Circuit opinion that has prompted so much recent discussion about section 215 of the PATRIOT Act and the bulk metadata collection process I described a moment ago. I think he makes some very important points.

First of all, he makes the important point that it is a good thing Congress has created a special Foreign Intelligence Surveillance Court because the Second Circuit Court of Appeals, no matter how good they are as judges, simply doesn't have the experience to deal with parsing the law on intelligence matters and things such as this 215 provision I talked about a moment ago.

He makes the important point that intelligence by its nature is forward-looking and our criminal justice system, which is what most courts have experience with, is backward-looking--in other words, something bad has already happened and the police and investigators and prosecutors are trying to bring somebody to justice for committing a criminal act. But our intelligence community is supposed to look forward and to help prevent those terrible accidents or incidents from occurring in the first place.

The second point General Mukasey makes in this article is that the Second Circuit panel of judges assumes that many Members of Congress are simply unaware of the provisions of the PATRIOT Act I mentioned earlier--section 215, this metadata collection--which is a terrible and glaring mistake on the part of the Second Circuit panel.

As I pointed out yesterday, just as we have done many times previously, Members of the Senate and the Congress generally have regular or at least periodic briefings on these intelligence programs as part of our oversight responsibilities. For the Second Circuit panel to suggest that Congress didn't know what it was talking about when it authorized these programs and when it wrote this provision of the law is simply erroneous.

The third point General Mukasey makes is that the judges didn't even stop the program in the first place. So it makes one really wonder why they handed down their opinion about 3 weeks before the expiration of this provision, when Congress is going to have to take up this matter anyway, unless they wanted to have some impact on our deliberations here.

What Attorney General Mukasey suggested, I think, is good advice. There needs to be an appeal to the Second Circuit Court en banc and then to the U.S. Supreme Court to get a final word. We don't need to settle on what he calls a ``Rube Goldberg'' procedure that would have data stored and searched by the telephone companies, he says, whose computers can be penetrated and whose employees have neither the security clearance nor the training of the NSA staff.

Mr. President, I commend this article to my colleagues.

There being no objection, the material was ordered to be printed in the RECORD

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