USA Freedom Act of 2015

Floor Speech

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, before he leaves the floor, I just want to make sure, having worked with Senator Paul for many, many months now, that I especially appreciate his efforts in the last few days in this week to try to accommodate this body with respect to amendments. My colleague has said repeatedly that he was very interested in a short list of amendments, that he hoped to have some modest time that would be available for these amendments.

He and I have worked together on a number of them. I think it is a reflection, as people think about this debate and on a topic that is of such enormous importance, that my colleague from Kentucky, especially with respect to this amendment issue, has tried continually to be reasonable and to be accommodating to this body.

Until just a few hours ago, I was at home in Oregon having townhall meetings, flew all night to be here for this extremely important session. Of course, the topic we discussed this evening was front and center in terms of my constituents.

The message from Oregonians at these townhall meetings was very clear. The people whom I have the honor to represent in the Senate want policies that advance their security and protect their liberties. The program we have been talking about tonight in the Senate really does not deliver either. It does not make us safer. It chips away at our liberties.

I am going to spend a little bit of time this evening making the case for those kinds of arguments and laying out the challenge for the days ahead.

Now, with respect to this safety issue, all of us understand--particularly the Presiding Officer, who has been on the Intelligence Committee, as I have, for over 14 years--that it is a dangerous world. Anyone who serves on the Intelligence Committee knows that beyond any kind of debate.

So we want policies that really deliver both security and liberty. This is what the President's own experts had to say with respect to this program that involves collecting millions and millions of phone records on law-abiding Americans. This was a group that was appointed and spent a considerable amount of time looking at the bulk phone records collection program. They issued a report, and will I just paraphrase what is the central finding, on page 104 of their report: As to information contributed to terrorist investigations by the use of section 215 telephony metadata--that is the collecting all of these millions and millions of phone records--these experts say that ``could readily have been obtained in a timely manner using conventional Section 215 orders.''

Now, the reason that is important is it spells out and recognizes that those who signed this report are individuals with some of the most pristine antiterror credentials in this country--Mike Morell, for example, the former Acting Director of the CIA; Richard Clarke, who held an extremely important position in two administrations and served with both Republicans and Democrats. Both of them are signatories to this important report.

Beyond that--and it has not received much attention--the reality is that our government, on top of everything else, has emergency authorities so that when those who are charged with protecting our country believe there is a threat to the Nation, they are allowed to issue an emergency authorization to get the information they need right away, and then they can go back and get the warrant approved after the fact.

Nobody is talking about eliminating that emergency authority. So what we have is a program that the most authoritative antiterror experts in the country believe does not make our Nation any safer. I read the most significant finding in their report.

On top of that, as I just indicated, emergency authorities are still preserved. In fact, I have indicated to our President and to those who work in the intelligence agencies that if at any point the executive branch and, particularly, the intelligence agencies feel that their emergency authorities are inadequate to protect the country, I personally would be willing to support efforts to ensure that those emergency capabilities are reformed and our country can take the steps it needs when it is necessary.

On top of this question, with respect to the issue of our safety, I want to talk about what I heard at some length earlier today with respect to how the program worked. I heard a number of Senators say that nobody in government is listening to these calls. That was repeated a number of times on the floor of this body.

When the government, under this program, knows whom you called, when you called, and where you called from, in many instances the government doesn't need to be listening. If the government knows, under this program, that a person called a psychiatrist 3 times in 36 hours--twice after midnight--that is a lot of private and personal information. The government doesn't need to be listening to that call.

So as to this notion that some who have wanted to make sure that our country would have both security and liberty are saying that it is a fantasy that the government is listening to calls, I could tell you that those who have been trying to reform the program have said, in effect, that the government doesn't need to listen to those calls. If the government has that amount of private and personal information, the government knows a lot about you, and it really doesn't need to listen. Certainly, if you are talking about a land line, then the government knows where you are calling from if they have a phone book.

So with respect to this question of the government listening, I want it particularly understood that a program such as this, when the government has this kind of information, I believe, represents a threat to our liberty. The reason why I think so is that hardly a week goes by when databases aren't violated. No. 1, we see that reported regularly in the press. No. 2, we have known about unfortunate times in our history--J. Edgar Hoover comes to mind--when this kind of information could be used. And, No. 3, I have been very concerned, given what our former colleague, Senator Udall, and I had to do with respect to bulk phone record collection of email. We battled to end this. Of course, this was email that could be read by government agencies. We battled with various intelligence leaders saying that we felt this was a violation of people's rights and it wasn't effective. They asserted for months and months that it was. Finally, one day they woke up and said the program wasn't needed any more.

None of this would have even happened had not Senator Udall and I made that case repeatedly. The intelligence leadership knew that we were not going to give it up, but that is what goes on if there isn't a check on some of these kinds of procedures.

Senator Paul made mention of the fact that the intelligence leadership has not exactly been straight with the American people on these issues. I emphasize that we are not talking about the thousands and thousands of law-abiding patriotic, dedicated, wonderful people who work in the intelligence field. Day in and day out they do so much for our country. We are so appreciative of all they do. They are the ones who do the hard work, for example, to capture Bin Laden and day in and day out to make us safer. But the intelligence leadership, on the other hand, as noted by our colleague from Kentucky, has not always been straight with the American people. I spent many months trying to decipher what the former NSA Director meant when he said the government doesn't collect any dossiers on millions of Americans.

I pointed out I had been on the Intelligence Committee for a long time and I had never heard the term ``dossier'' used. So I tried to learn more about it, used private opportunities and public opportunities, and just couldn't get the information. So, finally, I said: I have to ask this question in public.

On the Intelligence Committee you don't get but perhaps 20 or 25 minutes a year to ask questions in public, to hold intelligence leaders accountable on policy matters--not secret operations, because secret operations have to stay secret, but policy matters.

So, after being stonewalled for many months--many months--I finally said I have to ask this question in public. So to make sure no one would feel ambushed, I sent the question to the Director of National Intelligence, Mr. Clapper. I sent it a day ahead of time.

Then I didn't hear anything about its being inappropriate or in violation of classification rules. So I asked in public: Does the government collect any type of data at all on millions or hundreds of millions of Americans? I was told no, and that answer was obviously false. I tried to get it corrected, and we still couldn't get it corrected.

Of course, then Mr. Snowden spoke out publicly and pointed that out. Since that time, the Director of National Intelligence and his representatives have given these five different explanations for why that answer was given. So that is why you have to ask the hard questions. You have to ask the hard questions about these issues.

I see my friend and colleague Senator Heinrich has joined us tonight. I am so pleased that he has joined the Intelligence Committee. Senator Heinrich is one of those Senators who subscribes to that view that I just mentioned--that it is our job to ask the hard questions. It may be uncomfortable. It is not designed in any way to convey disrespect. We see it as our job to ask the hard questions.

I would be interested in my colleague's thoughts with respect to this issue and to have him be given a chance to participate in this colloquy.

BREAK IN TRANSCRIPT

Mr. WYDEN. I thank my colleague for his statements and would just want to explore this a little bit further. I hope that those who are following this debate understand that my colleague from New Mexico is a real rising star in the Senate. He and I would like the USA FREEDOM Act to go further, and we both worked together on legislation that would make additional reforms. Certainly, our colleagues on the Intelligence Committee and here in the Senate can expect to see us continuing to work together to advance these additional reforms over the coming months and years. For now, the two of us are saying we ought to support the USA FREEDOM Act and then move on--move on to other critical areas.

I particularly want to see closed what is called the backdoor search loophole, which my colleague from New Mexico talked about. What this means, colleagues, is that when you are engaged in a lawful search of someone who is a threat overseas, pursuant to section 702 of the Foreign Intelligence Surveillance Act, very often law-abiding Americans can get swept up in this search and have their emails looked at.

This is a problem today, and my view is it is likely to be a growing concern in the future because, increasingly, communications systems around the world are becoming globally integrated, so the amount of emails that are reviewed of Americans is likely to grow. But we can't get that change here tonight. So, as my colleague from New Mexico has mentioned, the USA FREEDOM Act would make several worthwhile reforms, such as increasing transparency, reducing the government's reliance on secret laws. But from my perspective, the centerpiece of it is ending the bulk collection of Americans' information under the PATRIOT Act.

I have been trying to close this particular loophole for close to a decade now. Some of our colleagues have said the bulk collection has never been abused; that no one's rights have been violated. My own view is--and I will ask what my colleague thinks--that vacuuming up all this information, particularly when databases get violated all the time--we have seen historically instances where there has been improper conduct by the government. I believe dragnet surveillance violates the rights of millions of our people every day.

Vacuuming up the private phone records of millions of Americans with no connection to wrongdoing is simply a violation of their rights.

And vacuuming up Americans' email records, which I pointed out before my colleague came to the floor--which he and our former colleague Senator Udall and I battled--is surely a violation of the rights of Americans as well. Colleagues, that wouldn't have been pointed out at all--it wouldn't have been pointed out at all--unless Senator Udall and I, with the help of our friend from New Mexico, hadn't been pushing back on it. Finally, one day the government said: Well, we will get rid of it because it wasn't effective. They got rid of it because they saw they were going to get hard questions, the kinds of questions my friend from New Mexico has been asking.

Now, with respect to the legality of this program, I know my colleague and I actually filed a legal brief, along with our former colleague Mark Udall, when the Court of Appeals for the Second Circuit was examining that program. In our brief, it was argued that we were able to debunk many of the claims that had been made about the effectiveness of the program.

I think it would be helpful if my colleague from New Mexico laid out some of that analysis here tonight. I would ask the Senator from New Mexico to begin, and I would encourage him to start by addressing the claim that the bulk collection of Americans' phone records is essential for stopping terrorist attacks. My question to my colleague is, Is there any evidence, any real concrete evidence, to support that claim?

BREAK IN TRANSCRIPT

Mr. WYDEN. I thank my colleague. The first of these examples--and they really are kind of overblown examples about the effectiveness of bulk collection--is the case of an individual named Najibullah Zazi. Mr. Zazi was a known terrorism suspect, and a number of people have suggested that bulk phone records collection was somehow essential to stopping him because a query of the bulk phone records database for numbers linked to Mr. Zazi returned a previously unknown number belonging to another terrorism suspect.

However, since the government had already identified Zazi as a terrorism suspect prior to querying the bulk phone records database, it had all the evidence it needed to obtain the phone records of Zazi and his associates using an individualized section 215 order or other legal authorities.

In the second case, some have pointed to Mr. Moalin, the San Diego man convicted of sending $8,500 to support al-Shabaab in Somalia. The intelligence community has indicated that information from the bulk phone records database ``established a connection between a phone number known to be used by an extremist overseas ..... and an unknown San Diego-based number'' that belonged to Mr. Moalin. Yet there are ample existing authorities under which the United States can conduct surveillance on a phone number known to be used by extremists overseas and other phone numbers in contact with that phone number.

The argument that Mr. Moalin's case is an example of a unique value of bulk phone records collection is just not accurate. My view is this is yet another case that offers a misleading exaggeration with respect to the effectiveness of bulk phone records collection.

Finally, several supporters of the bulk metadata program have claimed that ``[i]f we had had [the bulk phone-records] program in place at the time [of the September 11, 2001 attacks,] we would have been able to identify'' the phone number of one of the hijackers, Khalid al-Mihdhar.

Just as in these other cases, however, the record indicates that Mr. Mihdhar's phone number could also have been obtained by the government using a variety of alternate means. Before September 11, the government was surveilling a safe house in Yemen but failed to realize that Mr. Mihdhar, who was in contact with the safe house, was actually inside the United States. The government could have used any number of authorities to determine whether anyone in our country was in contact with the safe house it was already targeting. It didn't need a record of every Americans' phone calls to establish that simple connection.

BREAK IN TRANSCRIPT

Mr. WYDEN. I thank my colleague. I will wrap up and then give the last word to my friend from New Mexico on the subject. He is absolutely right that some of the most authoritative leaders in our country--experts on terror--have reached the same judgment we have. I made mention of the President's Review Group on Intelligence and Communications Technologies, and I really would encourage colleagues who are following this debate and citizens across the country--that report is available online, and it is available in our office. Page 104 of that report is very explicit. It says that the information that would otherwise be obtained in collecting all of these phone records--millions of phone records of law-abiding Americans, people such as Mike Morell, former Acting Director of the CIA, and Richard Clark, who served in two administrations--they said it could have been obtained through conventional processes.

This is a program that is not making us safer. And it is not my judgment that ought to be the last word; it should be that of people like those I just quoted.

The Privacy and Civil Liberties Oversight Board's report on the telephone records program said pretty much the same thing:

[T]he Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.

I will close by way of saying--and I touched on this before my friend from New Mexico arrived--I would like to do a lot more than I believe is likely to happen here quickly in the Senate. I do want to see us finally throw in the dustbin of history this bulk phone records collection program because it doesn't make us safer and it compromises our liberty. But, as I indicated to my friend from New Mexico, I would also like to close this backdoor search loophole in the FISA Act, which is going to be a bigger problem in the days ahead given the evolution of communications systems and how they have become globally integrated.

I will close by saying that one of the most important issues we are going to have to tackle in the days ahead is going to deal with encryption. Encryption, of course, is the encoding of data and messages so that they cannot be easily read. The reason this will be an enormously important issue--and my colleague and I have talked about this--is because of the NSA overreach, the collection of all these phone records of law-abiding people. A lot of our most innovative, cutting-edge companies have found their customers raising real questions about whether their products can be used safely, and a lot of the purchasers who buy their products around the world are saying: Maybe we shouldn't trust them. Maybe we should try to start taking control over their servers and have local storage requirements and that sort of thing. So what our companies did, because they saw the effect of the overreach by the NSA, was they started to use encryption to protect the data and messages of the consumers who buy their products.

Most recently, the head of the FBI, Mr. Comey, rather than try to come back with a solution that protected both our privacy and our security, he said he was interested in requiring companies to build weaknesses into their products. Just think about that--requiring companies to build weaknesses into their products. So the government--which, in effect, caused this problem with the overreach--in effect, rather than trying to find a solution that worked for both security and liberty, said: We will start talking about requiring companies to actually build weaknesses into their products.

I and others have pointed out that once you do that, hang on to your hat. When the good guys have the keys, that is one thing, but when companies are required to build weaknesses into their products, the bad guys are going to get the keys in a hurry, too. And with all the cyber hacking and the risks we already have, we ought to be really careful about going where Mr. Comey, our FBI Director, has proposed to go.

But that is not for tonight. Tonight is not an occasion where we will be able to, on a bipartisan basis, close the backdoor-search loophole or where we will be able to come up with a sensible policy with respect to encryption rather than requiring companies to actually build weaknesses in their products. We will not be able to do that tonight. But we will now have a chance here in the Senate to take steps that have been bipartisan both here in the Senate and in the other body, in the House of Representatives, to end the bulk phone records collection program because it doesn't make us safer and it threatens our liberties.

I always like to close by thinking about Ben Franklin, who said that anybody who gives up their liberty to have security really doesn't deserve either.

I am so pleased to have a chance to serve with my colleague from New Mexico on the Intelligence Committee, who is going to be a thoughtful advocate for these kinds of policies, in my view, for many years to come. I thank him for his involvement tonight and would be happy to give him the last word of our colloquy at this time.

I yield to my colleague.

BREAK IN TRANSCRIPT

Source