National Defense Authorization Act for Fiscal Year 2016

Floor Speech

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Mr. MERKLEY. Mr. President, yesterday we passed the USA FREEDOM Act, and it was quickly signed by our President because it was so important to put it into place. It contained two items that I want to draw particular attention to. One is that there should be no secret spying on U.S. citizens here in the United States of America. The second is that there should be no secret laws here in the United States of America.

These two items are very closely connected together. Our Nation was founded upon the principles of liberty and freedom. Fundamental to the exercise of those principles is the right to privacy, to be free from unreasonable intrusions. This right is central to all other rights protected in the Constitution, especially to the freedom of speech, the freedom of assembly, and the freedom to petition our Government.

Our sense of privacy and to be secure in our homes and secure with our records goes back to common law in England. It was in 1767 that the Earl of Chatham, when he was debating the cider tax, said:

The poorest man may in his cottage bid defiance to all the forces of the Crown. [His cottage] may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, but the King of England cannot enter.

Certainly, that is the spirit that infused the Fourth Amendment of our Constitution. That amendment says: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.....''

We need to ensure that our security apparatus, our law enforcement, and our intelligence officers have the tools they need to enact the efforts to keep America secure. But in the process, we cannot sacrifice our constitutional rights as American citizens. There should be no secret spying on Americans and no secret law in a democracy. So how did we end up in that place--the place that I am so glad we took a major stride toward remedying yesterday?

It goes back to section 215 of the PATRIOT Act. This Act was passed after the attacks on 9/11. I was not here in the Senate, but it said that our government can access business records or tangible things if it shows that there is a statement of facts showing that there are reasonable grounds to believe that those things are relevant to an authorized investigation.

That certainly mimics the second half of the Fourth Amendment, which goes on to say that ``no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.''

The responsibility of the government was to prepare a statement of facts, and those statements of facts had to show reasonable grounds and had to show that the things sought were relevant to an authorized investigation. Each one of those words had a significant influence in constraining the potential for the government to collect business records or, particularly, as we came to learn, to collect phone records on American citizens. However, a problem developed, and that is that a secret court was created here in America, a secret court called the FISA Court, or the Foreign Intelligence Surveillance Court. That secret court could interpret the common language of the law, and its interpretations were not disclosed to the U.S. public. So in that process of taking the language of the law that has a clear set of standards and then interpreting it, the court created secret law--secret law that was not disclosed to the citizens of the United States.

This is an enormous risk to democracy--a court with no scrutiny and, quite tragically, no presentation of opposing views from the position presented by the government. What kind of court is it that allows no presentation of an opposing view to the view of the government? That is a court that can create tyranny of the government by secretly reinterpreting the plain language of the law. That is exactly what happened.

Let's think about how this then went forward. Back in December 2012, I proposed an amendment, and that amendment said that there can be no secret law in America; that if the FISA Court makes an interpretation of terms, that interpretation of those terms has to be made public.

Here we have a representation of the importance of shining a light on that secret court, disclosing to the public how it interprets the law and thereby changes the meaning of the law. And what did this court do? This court tipped those terms and said ``authorize investigation.'' That can mean anything that happens in the future, which, of course, makes that term meaningless. It means that there is no authorized investigation. It is just a fictional possibility of the future--nothing existing right now. And then it took the term ``relevant to an authorized investigation,'' and it said that relevant is irrelevant. You have to show no connection, one or two places removed, in order to secure the right to access the papers, the business records, the phone records of U.S. citizens.

So this secret court here in America, the FISA Court, created secret law, wiped out the plain meaning of section 215, put its own interpretation in place, and told no one. This is absolutely unacceptable. That is why I put forward the amendment in December of 2012 that there is no secret law amendment, that this is unacceptable, that we must have disclosure of whatever that court finds so that the public can be informed, so that legislators can be informed, so that we can have a debate on whether that interpretation is consistent with what the legislature intended--what the Senate and the House intended--and consistent with what the President intended when he signed that law.

That amendment did not get a debate at that time in 2012, but the chair of the Intelligence Committee pledged to work with me to ask our government to declassify those opinions of the FISA Court, and she did. I thank very much the senior Senator from California, the former chair of the Intelligence Committee, for her help in doing that.

And some of those records, some of those opinions, and some summaries of the interpretation of the law were declassified. That was a step forward, but it should not be dependent on the whim of the executive branch as to whether secret law exists in our country.

So I continued to press forward. And then we had a situation occur. In June 2013, Edward Snowden disclosed the existence of the cell phone program. I could not explain in December of 2012 why it was so important to end secret law, but after Edward Snowden's disclosures, I could explain it.

In fact, when the National Security Agency chief, Keith Alexander, was testifying, which was shortly after that disclosure, I proceeded to pull out my cell phone and ask the chief: What authorized investigation gives you the authority under section 215 to access my, Senator Merkley's, cell phone records? He was unable to answer that question but said he would seek legal consultation in order to explain what investigation showed that there was a relevant connection and what statement of facts would justify it. But I never got an answer because there was no answer because the government was collecting everything under this secret reinterpretation of law.

Yesterday, we ended the era of secret law in America. Yesterday, my no secret law act was incorporated into the USA FREEDOM Act and was signed by the President of the United States. This law says the executive branch must declassify opinions of the FISA Court or, if they find that the exact opinion poses a security risk because of details enclosed therein, must declassify summaries or at a minimum must summarize the significant constructions and interpretations of law found by the FISA Court. That is the heart of it. We are not asking that classified information about facts of a case that could endanger our national security be disclosed. We are asking that interpretations and constructions of law be disclosed so that we have no secret law in America, and that is what is required by the act we passed yesterday.

In conclusion, we must not have secret laws in America. We must not have a secret court that has no opposing point of view presented. And when it makes interpretations of law, it must be disclosed to American citizens, who have every right as citizens to know what the law means and to be able to argue whether they like that interpretation, dislike it, think the law should be supported or the law should be changed.

May we never again allow a secret court to authorize secret spying on U.S. citizens under the cover of secret law.

What we did yesterday--incorporating the no secret law act into the USA FREEDOM Act--was important. To paraphrase William Pitt, the humblest American, no matter his wealth or her income or his status within the community--that no American may be in a situation where he may be unable to say to the U.S. Government: Here in my home, within these walls, however modest, you, the government, may not enter.

I thank the Presiding Officer.

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Mr. MERKLEY. Mr. President, when colleagues come to the floor and contend that there have been no secret courts in America, that there has been no secret law in America, that the administration of section 215 matched the plain language of the laws adopted by this body, they are wrong on all three counts.

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Mr. MERKLEY. When I have completed my remarks, I will be happy to take a question.

And so my colleague comes to the floor and says that there is no secret law. But the fundamental understanding of law is that there is the plain language of the law and there is the interpretation of that by the court. It is only through the combination of those two things that you can know what a law means. So if you have the plain language but you don't have the interpretation that has been assigned by the courts and used to adjudicate cases, then in fact you have secret law because none of us know what the words mean.

If you look at the plain language of section 215, it doesn't say: Here are restrictions on how the government examines a body of information, interrogates that body of information, and analyzes that body of information. No. The language is completely about how the government collects that information and whether they can collect that information.

It sets a series of clear standards for collecting that information. It says that information cannot be collected unless there is stated analysis, a set of facts that show there is evidence that the information being sought is relevant to an authorized investigation.

Now, any common citizen knows, therefore, that the government has to do a statement of facts. They have to state what is the specific investigation, has that investigation been authorized, and is the assorted information relevant that is being requested?

Well, ``relevant'' is a very powerful term in the law. It means one or two steps removed. And that is exactly what the Second Circuit found when they looked at this issue just recently.

The court's opinion explained that as the program is being implemented, the records demanded are not those of suspects who are under investigation, which would certainly be relevant, or of people or businesses that have contact with suspects under investigation, which is one step removed and certainly would be relevant, or even, the court went on to say, of people or businesses that have contact with others who are in contact with the subjects. That would be two steps removed, and that is stretching the boundaries of what is considered relevant under the definition of the law.

The court found that the implementation of the program has extended to every record that exists. The Court found that the implementation of the law extended to every record that exists.

So if the implementation by the administration so diverged from the language of the law passed and debated in this Chamber, how did the government--the executive branch--justify its gross deviation from the plain language of the law? Well, here is how they did it. They went to a court that had been created, the Foreign Intelligence Surveillance Court, and they said: We would like to be able to collect all the information, whether or not it is relevant, because some day, under some situation, we may want to analyze that information, and we would like to have it right at hand.

Now, had there been an adversary in this court, the adversary presenting an opposite point of view would have said: Well, not so quick, because there are standards in the case law for relevance. There are standards for what constitutes an authorized investigation. There are certainly standards for what are the means to present evidence to document this. But there was no contrary opinion in this court because the only one arguing the case with no rebuttal and no examination by any group was the government. So we have the government and a judge. That is not really the theory behind the courts. The idea is that we have an examination of an issue with both sides presented so there can be full articulation and full examination of the issues, and then a judge can decide based on full input. But, in this case, we didn't have that input. The government asked for an interpretation that would allow them to do something far different from the plain language of the law, and they got it from this secret court.

So, yes, we do have secret courts, operated with no input, and they disclose no opinions. And yes, we did have a secret law, and that ended yesterday, as it should have.

Thank you, Mr. President.

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Mr. MERKLEY. Were the opinions of this court, established by law--and, yes, it is transparent to the public that the court exists. But the question of secrecy is not one of whether it exists; it is a question of whether the process is open in any feasible way to debate between two points of view. Did the Senator from North Carolina know that the opinions of the court, including interpretations of the law, were never disclosed to the American public and were, in fact, kept secret?

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Mr. MERKLEY. Mr. President, the people of the United States expect the Constitution to be upheld and the principles of the Fourth Amendment. They expect that the law that is passed on this floor will be implemented in an appropriate fashion and consistently, and when it is not, our liberty is diminished, our freedom is diminished, and our privacy is diminished.

Indeed, what we did yesterday with the USA FREEDOM Act was to end a system in which a court, in secrecy, changes the meaning of the law and does not expose it to the American public. That is a very important improvement, taking us back to the democracy that we are all a part of and that we all love.

Thank you, Mr. President.

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