Ensuring Tax Exempt Organizations the Right to Appeal Act

Floor Speech

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Mr. WYDEN. Mr. President, first of all, I wish for colleagues to know that I think Chairman Hatch has made some very important points with respect to the currency issue and for colleagues to know that the approach of the chairman and me is to make sure we can have tough, enforceable currency rules without doing damage to American monetary policy or the ability to fight big economic challenges in the days ahead that we think would come about with the amendment offered by the Senator from Ohio, Mr. Portman.

By the way, I want colleagues to know that currency is going to be in the Customs conference. Chairman Hatch and I have discussed this point as well. We felt very strongly about making sure there is a Customs conference that goes right to the heart of the enforcement agenda. In that Customs conference--and the chairman and I have been able to secure a commitment from the President and from Chairman Ryan--that Customs conference is going to take place right when we get back. The President of the United States indicated last night that he wants us to get this done in June. So we are going to have a chance to tackle currency in that conference. Senator Bennet worked closely with the chairman and I so we got something in the committee that we thought was a smart, practical step. The chairman and I are talking today about something that is also strong and enforceable that would not produce the downside I have outlined.

So I want colleagues to understand there is an opportunity, particularly on the currency issue, very quickly, to put in place very tough, practical rules that get us the upside in terms of protecting the American economy without some of the downsides I have outlined and that Chairman Hatch has described as well.

What I want to do particularly this morning is, given yesterday, talk about some of the very positive developments we saw yesterday. I wish to express my appreciation to Chairman Hatch again for working closely with me on these issues.

I will start by talking about Senator Menendez. Senator Menendez, as do many of us, feels very strongly about human trafficking, about compelled labor, about commercial sex. He has made it very clear he wants to stop trafficking and he wants us to come up with a fresh policy. So he offered an amendment in the Finance Committee and it passed. All over the press for the next few days--and Chairman Hatch remembers this--were accounts: Poison pill is going to end the possibility of finding a way forward on the trade promotion act. The headlines were everywhere. The general view in the press was Western civilization was about to end because of the adoption of the Menendez amendment.

Well, Senator Menendez believes in legislating. He believes what we ought to be doing when there are important issues, contentious issues--that we need to find a way to bring everyone together. So what Senator Menendez did--and I was very pleased to be able to play a modest role in this--is he brought together all of the groups. He brought together the administration, the U.S. Trade Representative, and outstanding organizations that fight trafficking and, without any headlines and without any drama, did the nuts-and-bolts work to make sure that now we are going to have a new process.

We are going to have a new process that ensures that the President is going to report to the Congress on the concrete steps the country takes to crack down on trafficking.

Now, it didn't make headlines this morning. It doesn't make headlines when you work with both sides and all the parties outside of the bright lights. But today we now have an opportunity to move forward, in a bipartisan way, on an issue that a couple of weeks ago was described as a poison pill, the end of TPA, causing the entire Senate to be paralyzed because it wouldn't be possible to move forward.

I bring this up only by way of saying that I hope today--and I am going to be here throughout the day trying to work with both sides to try to find a way to get amendments considered and to do as Senator Menendez did over the last 10 days or so to actually solve a problem and make it possible for us to up the ante against this plague of trafficking but also make it possible to move forward on this legislation.

I would also like to note that all this work went on when everyone understood that Senator Menendez has been opposed to the legislation and Chairman Hatch and I have been for it. But the idea was that both sides care about trying to fight trafficking. Both sides understood that if we worked together, there was an opportunity to really solve a problem.

In my view, Senator Menendez deserves great credit for doing what is the most important work in the Senate, legislating and trying to bring people together of disparate views. In doing so, what Senator Menendez accomplished was to show the country and the Senate that we can take another step for trade done right.

Trade done right is my vision of where we ought to go. We have heard about free trade and fair trade. What we want is trade done right. Because Senator Menendez was willing to put in all this time on his trafficking bill, we took, on a bipartisan basis, an issue that was a poison pill whenever it was discussed just about anywhere in the country and we turned it into a better approach to fight trafficking. We were able to advance the cause of being able to move forward, and I look forward to seeing that passed.

A second area where we made a lot of progress yesterday was on enforcing our trade laws. Particularly important about this, because virtually every time I have ever talked about promoting trade--pretty important in my State where one out of five jobs depends on trade--I have said that passing new trade agreements and doing a better job of enforcing the trade laws are two sides of the same coin. The reason I reached that judgment was because of what a number of skeptics about this issue brought up--and I think it is a legitimate concern--which is: Why is everybody in Washington, DC, talking about new trade laws when they are not doing everything to enforce the laws we have on the books? Chairman Hatch and I talked about this many times and both of us agreed we needed a robust enforcement package.

We were able to get important measures into our Finance bill--measures that were sought by a number of our colleagues. Senator Brown had a number of provisions. I was particularly interested in what is called the ENFORCE Act. This is something I developed back when I was chair of the trade subcommittee.

We had put together a sting operation to catch scofflaws overseas who were trying to avoid our trade laws. In effect, what they were doing was merchandise laundering. They would be found to be in violation of our dumping or our trade rules in one country and they would just move to another and try to move it through another nation, and we caught them on it. Many parties responded to the sting operation saying: We are in. We are anxious to stop this merchandise laundering. So I don't take a backseat to anybody in terms of enforcing our trade laws.

So after Chairman Hatch and I got that through the Finance Committee, the second step was we had a separate vote in the Senate on a very strong Customs and Enforcement package. That was step No. 2. But at that time, a number of observers said: Well, nothing is going to happen. It got passed here in the Senate, but that bill is not going anywhere, not going to happen. That is the end of the topic.

Chairman Hatch and I, working together with Chairman Ryan, said: Of course we are going to have a conference. We feel very strongly about this. So we put out a statement earlier in this week saying: You bet there is going to be a conference in June, and we are committed to getting this done.

Chairman Ryan has indicated that he is going to take each of the trade bills--all four of them--up on the same day in the other body. He is going to pass them all, and then we will have a conference. After that happened, I was told that, well, that sounds good, but we are still not going to have much. Is the administration going to be for it?

So, yesterday, in consultation with Chairman Hatch and myself and others, the President put out a very strong statement explicitly stating what he wanted in that conference, and he wanted it in June. He talked again about Senator Brown's measures, 301, the level playing field, and the ENFORCE Act. I was very pleased he mentioned child labor.

So a tough, strong enforcement package is going to happen. I am going to insist on it. Chairman Hatch has pledged to me he is going to insist on it. It is going to happen. All of that was essentially nailed down in the last 24 hours.

So two big issues, two very significant issues, which were both considered to be show-stoppers: The Menendez amendment, fixed. All the headlines about poison pills, no longer valid. Senator Menendez has fixed it.

Chairman Hatch, to his credit, has been willing to work with me and with the President. We are going to have a strong enforcement package and we are going to have it in June and it is going to become law as part of the Customs conference.

The Senate spent a lot of time yesterday debating an important issue, which is the future of the Export-Import Bank. I want to thank my Pacific Northwest colleague and friend Senator Cantwell for all of her leadership--all of her leadership over the years--in trying to renew the Export-Import Bank. She has been the one who has pointed out: If you have trade laws, which we are trying to promote with the trade promotion act, but you aren't using the tools that you need to get the maximum value--wring the maximum value out of those new laws--you are missing opportunities that are important for our Nation. So I urge the majority leader to work closely with Senator Cantwell to make that happen.

Finally, I have been pleased to see a robust debate on a number of issues, particularly issues that have been important to Senator Warren and Senator Brown. What I have said from the very beginning and what I am going to be here all day working on is this: There are Senators who feel strongly about promoting the trade promotion act; there are Senators who are opposed to it. I am obviously for the agreement, but every single day I am looking for opportunities for both sides to be heard and to be able to advance their ideas. It started long before we actually had votes in the Senate Finance Committee, and it is going to continue every single day that I have the opportunity to serve in the Senate.

These are important issues. I thought it was particularly important that Senator Warren's investor-state provision be able to get a vote early on in the proceeding--obviously an issue that there has been great debate on--and there are many more important amendments to this package.

So I want colleagues on both sides of the aisle to know I am going to be here throughout the day--throughout the day--looking for ways that all Senators, whether they are for the agreement or against the agreement, will have an opportunity to have their priorities considered on this trade legislation.

I will just wrap up, colleagues, by way of saying that the reason this issue is so important is we debate continually about how to get more high-wage jobs in our country. Continually we debate that because we want higher wages for our constituents. The evidence is that trade jobs pay better than do the nontrade jobs. We need more of them.

There was a report this morning that my State has a significant trade surplus, and we are very proud of that. There are other States that don't. Let's promote legislation that allows us to secure more exports, particularly in the developing world, where there are going to be a billion middle-class consumers in 2025. We want them to ``Buy American,'' because when they do, it creates the opportunity for us to have more of those export value-added, high-productivity jobs that pay our workers better wages and that strengthen our middle class.

It is going to be a busy day, and I look forward to working, again, with both sides so Senators, whether they are for the TPA or whether they are against it, feel they have a chance to raise their issues and be treated fairly.

With that, I yield the floor.

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Mr. WYDEN. Madam President, I spoke a little bit this morning about this whole issue--and a very serious issue it is--of currency manipulation. In effect, we are going to have two choices with respect to this issue, one offered by the chairman of the Finance Committee, Senator Hatch, and myself, and one offered by Senator Portman and others.

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Mr. WYDEN. Madam President, no more than 2 minutes. Before my colleague leaves the floor, I just want it understood in this body that Senator Cardin has championed for decades the cause of labor rights, environmental rights, human rights. I so appreciate his leadership in this area.

For the first time, as a result of Senator Cardin's work, human rights will be a principle negotiating objective because Senator Cardin has been spot-on in saying trade must be about human rights. So that is No. 1.

Point No. 2, my colleague was absolutely right in saying how important it is that we have more votes here. That is why I am going to be spending all day into the night trying to bring that about. I want my colleague to know I will also be very interested in working with him on this additional amendment he has to further build on what we have in the bill. I thank my colleagues for their patience.

I yield the floor.

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Mr. WYDEN. I thank my colleague. It is good to be back on the floor with him once again on this topic.

As we have indicated, this will not be the last time we are back on the floor.

My colleague has made a number of very important points already. I was especially pleased when my colleague brought to light something that is little known; that the Attorney General of the United States is interested in--excuse me--the FBI Director is interested in requiring companies to build weaknesses into their products. In other words, we have had companies interested in encryption, as my colleague mentioned. What happened as a result of that encryption, they had a chance to start getting back the confidence of consumers, both in the United States and worldwide--and then the FBI Director has been interested in, in effect, allowing companies to build a backdoor into their systems. This, once again, kind of defies commonsense because the keys will not just be out there for the good guys. They will also be available to the bad guys.

I am very pleased that my colleague from Kentucky highlighted one particular new development in this debate, and I have sought as a member of the Intelligence Committee for some time to come up with an approach that once again demonstrates that security and liberty are not mutually exclusive.

But we are certainly not going to have both, as my colleague touched on in his statement, if the policy of the FBI Director is to require companies to build a backdoor into their products--build weaknesses into their products.

Now, the Senator from Kentucky is very much aware that my staff and a number of Senators are currently working through a number of issues and amendments related to the question of how we can pass trade legislation and get more family wage jobs for our people through exports. A number of us, myself specifically, have been concerned that the majority leader and other supporters of business as usual on bulk collection of all of these phone records would somehow try to take advantage of our current discussions and try to, in effect, sneak through a motion to extend section 215 of the USA PATRIOT Act. As long as the Senator from Kentucky has the floor, that cannot happen. My hope is that once our colleagues have agreed on a path to go forward with job-creating, export-oriented trade legislation, it will be possible to resume our work on that very important bill.

In the meantime, my question for my colleague pertains to an issue that he noted I have been at for some time. As my colleague knows, I have been trying to end the bulk phone record collection program since 2006, and the reason I have is because this bulk phone record collection program is a Federal human relations database.

When the Federal Government knows whom you have called, when you have called, and often where you have called from, which is certainly the case if somebody calls from a land line and someone has a phonebook, the government has a lot of private and intimate information about you. If the government knows that you called a psychiatrist three times, for example, in 36 hours, twice after midnight, the government doesn't have to be listening to that call. The government knows a whole lot about what most Americans would consider to be very private.

This has been an important issue. My colleague from Kentucky has been an invaluable ally on this particular cause since he arrived in the Senate, and I just want to give a little bit more background and then get my colleague's reaction to this question.

I have seen several of my colleagues come to the floor of the Senate and talk about why we ought to keep a bulk phone record collection, and the statement has somehow been that this is absolutely key for strong counterterror. That is a baffling assertion, I say to my colleague from Kentucky, because even the Director of National Intelligence and the Attorney General are saying it is not. So what we have are Members of the Senate saying that bulk collection--some of them--ought to be preserved in order to fight terror, and the Director of National Intelligence and the Attorney General, two individuals who are not exactly soft on terror, saying it is not.

If Senators, and those who might be following this debate, are seeking a more detailed analysis, I hope they will check out the very lengthy report on surveillance that was issued by the President's review group. This group's members have some very impressive national security credentials. These are not people who are soft on fighting terror. One of them was the Senior Counterterror Adviser to both President Clinton and President Bush and another served as Acting Director of the CIA, and this review group--a review group led by individuals with pristine antiterror credentials--said on page 104 of their report that ``the information contributed to terrorist investigations by the use of section 215 [bulk] telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using [individual] section 215 orders.''

What this distinguished group of experts said supports what the Senator from Kentucky is saying and what I and others have been saying for some time.

The Senator from Kentucky pointed out my service on the Intelligence Committee. I think Senator Feinstein and I are two of the five longest serving members in the committee's history. We didn't find out about bulk collection until it had been underway for quite some time because it was concealed from most members of the Intelligence Committee for several years. But given the fact that we began to see in 2006 and early 2007 what is at stake, this has been a fight that has been going on for 8 years.

An additional reason I appreciate the Senator from Kentucky being here now is that for these 8 years and multiple reauthorizations, it has always been the same pattern. It was almost like the night follows the day. Those who were in favor of dragnet surveillance and those who were in favor of the bulk collection program, in effect, wait until the very last minute and then they say: Oh, my goodness. It is a dangerous world. We have to continue this program just the way it is.

Well, I tell my colleague from Kentucky, and I know he shares my view on this, that there is no question that it is a very dangerous world. Anybody who has served on the Intelligence Committee, as I have for more than 14 years, and goes into those classified meetings on a weekly basis, does not walk out of there without the judgment that it is a very dangerous world. But what doesn't make sense is to be pursuing approaches that don't make us safer and compromise our liberties. That is what doesn't make sense.

Last year, along with my colleagues Senator Heinrich and Senator Mark Udall, I filed a brief in a case that was before the Court of Appeals for the Second Circuit. It is an important court. It is one of the highest courts in our country.

In the brief, we said we ``have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans' phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans.''

What we are talking about, in effect, are conventional approaches with respect to court orders and then there are emergency circumstances. So when the government believes it has to act to protect the American people, it can move quickly and then, in effect, come back and settle up later.

The conclusion we reached after reviewing bulk collection very carefully was based on 8 years' worth of work, and of course we recently had this court declare bulk collection to be illegal.

My first question is, Does the Senator from Kentucky agree there is no evidence that dragnet surveillance now makes America any safer?

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Mr. WYDEN. What the Senator is asking about is a statement made by the FBI Director, Mr. Comey. This is not some kind of hidden article. It was on the front pages of all of our papers and really deserves, as my colleague is suggesting, some consideration.

In fact, one of the last things I did as chairman of the Senate Finance Committee--I had a relatively short tenure there in 2014--was to hold a workshop in Silicon Valley on this issue. The problem stems from the fact that with the NSA overreach taking a huge toll on our companies and the confidence that consumers, both here and around the world, had in the privacy of their products, these companies said we have to figure out a way to make sure consumers here and around the world understand that we are going to protect their privacy. So they decided to put in place products that had strong encryption. They felt that was important to be able to assure their consumers that when they sold something, their privacy rights were protected. In doing so, of course, they also made it clear, as has always been the case, that when the government believes an individual could put our Nation at risk, you get an individual court order, you use emergency circumstances, and you could still get access to information.

The response by our government, which contributed mightily to the problem by the NSA's overreach in the first place, was our government saying: Nope. You are not going to be able to use that encryption to bring back the confidence that Americans and people around the world have in your products. There were projections that these companies were already losing billions and billions of dollars in terms of the consequences of loss of privacy.

The response of the government was to say: We are looking at requiring you to build weaknesses into your products and, in effect, create a backdoor so we can get easy entry.

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Mr. WYDEN. I appreciate my colleague's assessment on that issue. He knows that it was very troubling that in 2012 and in 2013, we just weren't able to get straight answers to this question of collecting data on millions or hundreds of millions of Americans.

My colleague will recall that the former NSA Director said that--he had been to a conference--and that he was not involved in collecting ``dossiers'' on millions of Americans. Having been on the committee at that point for over a dozen years, I said: Gee, I am not exactly sure what a ``dossier'' means in that context.

So we began to ask questions, both public ones, to the extent we could, and private ones, about exactly what that meant, and we couldn't get answers to those questions. We just couldn't get answers.

The Intelligence Committee traditionally doesn't have many open hearings. By my calculus, we probably get to ask questions in an open hearing for maybe 20 minutes, maximum, a year. So after months and months of trying to find out exactly what was meant, we felt it was important to ask the Director of National Intelligence exactly what was meant by these ``dossiers'' and government collecting data and the like. So at our open hearing, I said: I am going to have to ask the Director of National Intelligence about this. And because I have long felt that it was important not to try to trick people or ambush them or anything of the sort, we sent the question in advance to the head of national intelligence. We sent the exact question: Does the government collect any type of data at all on millions of Americans? We asked it so that he would have plenty of time to reflect on it. We waited to see if the Director would get back to us and say: Please don't ask it. There has always been a kind of informal tradition in the Intelligence Committee of being respectful of that. We didn't get that request, so I asked it. When I asked:

Does the government collect any type of data at all on millions of Americans, the Director said no. I knew that wasn't accurate. That was not a forthright, straightforward, truthful answer, so we asked for a correction. We couldn't get a correction.

I would say to my colleague that since that time, the Director or his representatives have given five different reasons why they responded as they did, further raising questions in my mind, not with respect to the rank-and-file in the intelligence community--the thousands and thousands of hard-working members of the intelligence community my colleague and I feel so strongly about and respect so greatly.

I wish to ask just one other question with respect to where we are at this point and what is ahead. As long as the Senator from Kentucky holds the floor, no one will be able to offer a motion to consider an extension of the USA PATRIOT Act. But at some point in the near future, whether it is this weekend or next week or next month, my analysis is the proponents of phone record collection are going to seek a vote in the Senate to continue what I consider to be this invasion of privacy of millions and millions of law-abiding Americans. When that happens, I intend to use every procedural tool available to me to block that extension. And if at least 41 Senators stand together, we can block that extension and block it indefinitely. If 41 Senators stick together, there isn't going to be any short-term extension, and finally, after something like 8 years of working on this issue, finally we will be saying no to bulk phone record collection.

I am certain I know the answer to this question, but I think we both want to be on the Record on this matter. When that vote comes, the Senator is going to be one of the 41 Senators who are going to block that extension. I have appreciated his leadership.

I would just like his reaction to our efforts to go forward once again when we have to do it with proponents of mass surveillance seeking an actual vote to continue business as usual with respect to dragnet surveillance.

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Mr. WYDEN. I would just say to my colleague that we always have to be vigilant about secret law. And we have, in effect, found our way into this ominous cul-de-sac that the Senator from Kentucky and I have been describing here this afternoon really because of secret law.

As I wrap up with this question and hearing the concern of my colleague--because I think that is what is at the heart of his question, that ``secret law'' is what the interpretation is in the intelligence community of the laws written by the Congress. Very often those secret interpretations are very different from what an American will read if they use their iPad or their laptop.

For example, on section 215, bulk phone records collection, I don't think very many people in Kentucky or Oregon took out their laptop, read the PATRIOT Act, and said: Oh, that authorizes collecting all the phone records on millions of law-abiding Americans.

There is nothing that even suggests something like that, but that was a secret interpretation.

So I am very glad the Senator from Kentucky has chosen to have us wrap up at least this part of our discussion with the questions that we have directed to each other on this question of secret law because, as my colleague from Kentucky and I have talked about, we both feel that operations of the intelligence community--what are called sources and methods--they absolutely have to be secret and classified because if they are not, Americans could die. Patriotic Americans who work in the intelligence community could suffer grievous harm if sources and methods and the actual operations were in some way leaked to the public. But the law should never be secret. The American people should always know what the law means. And yet, with respect to bulk collection and why that court decision was so important, what happened was that a program that had been kept secret, that had been propped up by secret law, was declared illegal by an important court.

So I will just wrap up by way of saying that the Senator from Kentucky and I have always done a little kidding over the years about our informal Ben Franklin caucus. Ben Franklin was always talking about how anybody who gave up their liberty to have security really deserves neither.

I just want to tell my colleague that I am very appreciative of his involvement in this. From the time my colleague came to the Senate, he has been a very valuable ally in this effort. My colleague recognized this was not about balance. This is a program that doesn't make us safer but compromises our liberty. It is not about balance. And at page 104, you can read that the President's own advisers say that.

So I am very pleased that the informal Ben Franklin caucus is back in action this afternoon. I look forward to working closely with my colleagues on this. As I indicated by my question, I expect we will be back on the floor of this wonderful body before long having to once again tackle this question of whether it ought to be just business as usual and a re-up of a flawed law. My colleague and I aren't going to accept that.

I thank him for his work today. These discussions and being on your feet hour after hour are not for the fainthearted. I appreciate my colleague's leadership, and I once again yield the floor back to him.

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Mr. WYDEN. I think my colleague has asked very good questions, and it is my intention to rejoin him here in a few minutes.

But I think it is important--and I would be interested in your reaction--do people understand what is at stake here?

We are talking about section 702 of the FISA Act and that involves a very important issue of making sure, when there is somebody dangerous overseas, that we can, in effect, go up on that person to get that kind of information that we have to have.

But what we are seeing increasingly--and we have actually put it on our Web site--Americans are being swept up in those searches and their emails are being read.

And what is especially troubling to me--and I would be interested in my colleague's views with respect to this backdoor search loophole--this is a problem today, but it is only going to be a growing problem in the days ahead because increasingly communications systems around the globe are merging. They are becoming integrated. It is not as if the communications systems stop at a nation's border.

So I think this is a particularly important issue. As we have talked about, the amendments we are interested in offering, I think this is a particularly important bipartisan effort. I don't think people have known a whole lot about how the backdoor search loophole takes place.

We have supported section 702, because when there are dangerous threats overseas, we want our government to be able to ensure it is taking steps to protect the American people. But having more and more Americans swept up in these searches, particularly the changing nature of a communications system being integrated, strikes me as a very big problem.

I am going to be back to join my colleague very shortly, but I would be very interested in my colleague's thoughts on the importance of closing this backdoor search loophole.

We have tried in the past. I think that now, particularly, when we have had a chance to walk this through in terms of what it really means, my hope is we can finally close it.

What would my colleague's reaction be with respect to the importance of this?

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Mr. WYDEN. I thank my colleague. I will be back to rejoin him in a few minutes. I do so appreciate my colleague's stamina and passion.

I went to school on a basketball scholarship, and I think I have been able to stay in a little bit of shape, but my friend from Kentucky has sure shown both his commitment and his stamina. I am going to have to take a brief meeting on one of the issues pending, but I intend to join my colleague here before too long.

I thank the Senator. I will have additional questions at that time.

I return the floor to Senator Paul.

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Mr. WYDEN. I think my colleague has made the point with respect to our government--particularly the FBI Director--actually arguing that companies should build weaknesses into their systems.

I note my colleague has been on his feet now for somewhere in the vicinity of 9 hours, so I think we are heading into the home stretch. For people who are listening, I think they really are first and foremost interested in how this Senate, on a bipartisan basis, can come up with policies that ensure that we both protect our privacy and our security. As my colleague said, they are not mutually exclusive.

So I think what I would like to do is wrap up my questioning tonight by talking about how this bulk phone record collection and related practices is an actual intrusion on liberty, and to start the conversation, you have to first and foremost get through this whole concept of metadata. We heard people say: What is the big deal about metadata? And for quite some time we had Senators saying: What is everybody upset about? This is just ``innocent metadata.''

Well, metadata, of course, is data about data, but it is not quite so innocent. If you know who someone calls, when that person calls, and for how long they talk, that reveals a lot of private information. Personal relationships, medical concerns, religious or political affiliations are just several of the possibilities. Most people that I talk to don't exactly like the government vacuuming up private information if those persons have done nothing wrong. Now, this is especially true if the phone records include information about the location and movements of everyone with a cell phone. And we have not gotten into this in the course of this evening, but I want to take just a minute because I think, again, it highlights what the implications are.

I have repeatedly pushed the intelligence agencies to publicly explain what they think the rules are for secretly turning American cell phones into tracking devices. They have now said that the NSA is not collecting that information today, but they also say the NSA may need to do so in the future. And General Alexander, in particular, failed in a public hearing to give straight answers about what plans the NSA has made in the past.

Now, to be clear, I don't think the government should be electronically tracking Americans' movements without a warrant. What is particularly troubling to me is there is nothing in the PATRIOT Act in addition that limits this sweeping bulk collection authority to phone records. Government officials can use the PATRIOT Act to collect, collate, and retain medical records, financial records, library records, gun purchase records--you name it. Collecting that information in bulk, in my view, would have a very substantial impact on the privacy of ordinary Americans.

I want to be clear, I am not saying this is what is happening today, but I want to make equally clear this is what the government could do in the future. So my question, as my colleague, who has been on his feet for a long time, moves to begin to wrap up his comments this evening, I would like my colleague's thoughts on the impact of NSA collection of bulk records on innocent Americans. I also would be interested in his views with respect to why we have not been able to get the government to give straight answers about the tracking of the location and movements of Americans with cell phones that took place in the past. I would be interested in my colleague's thoughts on those two points.

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Mr. WYDEN. My understanding of my colleague's request--and that was my point of once again coming back to bulk collection of phone records, past practices with respect to tracking people on cell phones, and any policies that may be examined for the future--I think my colleague is saying it is time to ask some tough questions. Many of these amendments we have been working on are basically designed to address these issues where we haven't been able to get answers in the past.

After 9/11, it was clear the people of our country were worried and there was just a sense that if you were told it was about security, you were supposed to say, OK. That is it. But that is not the kind of oversight the Congress--particularly after we had a time stamp on the PATRIOT Act, we all thought it was going to end, and then it was time to start asking the tough questions. And not enough tough questions have been asked. And my colleague in the amendments we are talking about really seeks to get answers and use that information to change practices on a lot of these areas that have really gotten short shrift in the past. I appreciate my colleague talking about the FISA Court in connection with this. This is, for listeners, the Foreign Intelligence Surveillance Act Court--certainly one of the most bizarre judicial bodies in our country's history, created to apply commonly understood legal concepts, such as probable cause, to the government's request for warrants to track terrorists and spies. But over the last decade, the FISA Court has been tasked with interpreting broad new surveillance laws and has been setting sweeping precedents about the government's surveillance storing, all of it being done in secret.

And I will say--and I would be interested in my colleague's thoughts on this--that it is time that the court's significant legal interpretations be made public--be made public so there are no more secret laws; that the people of this country have the chance to engage in debate about laws that govern them. I also think there ought to be somebody there who can say on these questions where there are major constitutional implications, there ought to be somebody there who can say: Look, there may be other considerations than the government's point of view. But transparency here is critical so that Congress and the courts can hold the intelligence community accountable. I want to mention, once again, we are talking about policies. We are not talking about matters that are going to reveal secret operations or sources and methods. We are talking about policy.

So I think it would be helpful, again, as we move to wrap up, if my colleague from Kentucky could outline some of the reforms in the foreign intelligence court area that he thinks would be most helpful in terms of promoting transparency and accountability, that do not compromise sources and methods--because I think my colleague has some good ideas in this area--and what, in my colleague's view, would be most important with respect to getting reforms in this secret court in a way that would ensure more transparency for the public and still protect our valiant intelligence officials who are in the field.

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Mr. WYDEN. I would say that all of the matters we have talked about this afternoon, this evening, would be significant concerns with respect to ensuring the liberties of the American people are protected without compromising our safety. Let's check them off: bulk phone collection, millions and millions of phone records of law-abiding Americans; the Executive order No. 12333 that we talked about today, another very important area; and then section 702, the Foreign Intelligence Surveillance Act area, where a foreigner is the target and the records of Americans are swept up. So I think we are addressing exactly one of the concerns that has come out in the last few days with respect to what Americans are concerned about.

I know there has just been a brand-new major survey that has been done. My colleagues may have touched on it sometime in the course of the day.

Americans particularly want to know what information about them is being collected and who is doing the collecting. In each of these three areas that I mentioned, there are substantial questions with respect to the privacy rights of Americans.

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Mr. WYDEN. My colleague is--and I remember those days well--basically summing up the argument of the Bush administration. I and others pushed back and pushed back very hard, because it would essentially, if taken to this kind of logical analysis, basically strip the legislative branch of its ability to do vigorous oversight.

So my colleague has summed up what was the position of the Bush Administration. But like so many other positions that were taken during that period of time, once there was an opportunity to make sure people understood how sweeping it was--what my colleague has described is an extraordinary sweep of executive branch power basically relegating any role for congressional oversight to that much--and not on the central question. So my colleague has summed up what the Bush administration said in those early days.

I had joined the Intelligence Committee shortly before 9/11. I was struck, because this really was the first example I saw of just how some in the executive branch would try to lay out a theory of executive branch power that really just takes your breath away.

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Mr. WYDEN. Yes, what I can tell you is that I think there have been some changes, some improvements. But it continues to be a challenge. The reality is you kind of look back from that period. In those early days, for example, John Poindexter made a proposal for something called Operation Total Information Awareness. It would have been the most sweeping invasion of privacy, in my view, in the country's history. We decided, much like when my colleagues talked about those early interpretations in the Bush administration, that this was an unacceptable expansion of executive branch power.

But it was not until a young intern who was in our office late one night found some of the true excesses of this project--in fact, this young intern found that the program would actually encourage, as part of an experiment, debate about assassinating foreign leaders. People just found that so out of the mainstream that when we brought it to light, Operation Total Information Awareness was gone within about 48 hours.

So we have seen--my colleague highlighted the Bush administration proposal to basically have unchecked executive branch power in Operation Total Information Awareness. My colleague asked about 12333, which we have been reviewing.

So, yes, it is going to remain an ongoing concern, an ongoing challenge, because I think there is a sense that the executive branch is the only one that can really deal with this kind of information in a timely kind of fashion. Well, what we have seen, with respect to bulk phone record collection, is that this has been a program that has not been about timely access to relevant information.

Experts with national security clearances--we talked about those individuals this afternoon--said this program does not make us safer, and we could get rid of it and obtain the information by conventional sources. So I think we have begun to reign in this unchecked executive branch power. I think a big part of it has been the very valuable work my colleague has done in terms of trying to highlight these kinds of practices and why I have appreciated the chance to work closely with my colleague since I came to the Senate.

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Mr. WYDEN. I think my colleague has made an important point with respect to the Smith case. The Smith case was not made for the digital age. That is a big part of what we have sought to do throughout this debate, is to try to make sure that people really understand the implications in the digital age of what these policies, you know, mean for their privacy.

I see my colleagues are on the floor and I want to give them some time. But since you mentioned this question of the court cases, I think there was really striking language recently by Judge Leon of the U.S. District Court for the District of Columbia, talking about what the scooping up of all of these records really means. Judge Leon said, ``a few scattered tiles of information'' when collected in mass, can ``reveal an entire mosaic'' about a person including their religion, their sexual orientation, medical issues, and political affiliations.

So you combine what the judge has described, I think correctly, as bulk collection, outdated court cases such as the Smith case, which really was not updated in terms of what we would be facing in the digital age, and I think this really combines to create policies that have a chilling effect on liberty and liberty for innocent law-abiding Americans.

So I want to say it again to my colleague who is now approaching 10 hours on his feet. I very much appreciate his focusing on these issues. We have a lot of work to do because we know that there has been a pattern in the past where when we really get down to the final days--the last couple of days--there is always a lot of pressure to go along with some kind of short-term extension. That has been the pattern year after year, every time there has been an expiration of the act.

I think what has been shown today is that kind of business as usual is just not going to be acceptable any longer. You have made that point. I want it understood that we are going to be pursuing the effort to make sure that this time we are not just going to re-up a bad law, re-up a flawed policy and say that it is OK to continue a program.

This was reauthorized, in effect, by the President a few months ago. This is going to be the last extension. This has got to be the last extension. I am committed to working closely with the Senator and our colleagues to make sure that that is the case and to take the steps necessary to ensure this is finally the last extension of a badly flawed law. I thank my colleague for his good work.

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