USA Freedom Act

Floor Speech

Mr. BLUMENTHAL. Mr. President, I thank my colleague from Utah, my
friend and very distinguished colleague, as well as our friend from the
State of Vermont for their leadership this morning and throughout the
drafting and formulating of this very well-balanced compromise--a
balance between security, which we must be able to preserve and defend,
and our privacy and other essential constitutional rights, which we
need to protect just as zealously, because the reason for fighting to
preserve our security is so we maintain and preserve our great
constitutional rights.

That balance can be struck. It is feasible, achievable, and this
measure of the USA FREEDOM Act is a strong step in the right direction.

I wish to talk today about one of its great virtues, which is an
American virtue, the virtue of due process having an effective
adversarial process, one that is transparent and provides for effective
appellate view. The lack of an adversarial process, as well as
transparency and effective appellate review, is one of the reasons the
USA FREEDOM Act is absolutely necessary.

We know bulk collection of megadata is unnecessary. The President's
own review group made that fact clear. We also know bulk metadata
collection is, essentially, un-American. This country was founded by
people who, rightly, abhorred the so-called general warrant that
permitted the King's officials to rummage through their homes and
documents. No general warrant in our history has swept up as much
information about innocent Americans as orders allowing bulk
collection.

Last week, the Second Circuit Court of Appeals told us something
more; that we now know bulk collection is unauthorized. It is illegal.
It is unauthorized by statute and has been so for the last 9 years that
the government has collected bulk data of this kind.

The question is, How did it happen? How did we arrive at a point
where the Government of the United States has been collecting data
illegally for 9 years? We know that in May of 2006, the FISA Court--the
Foreign Intelligence Surveillance Court--first was asked whether the
Federal Government could collect the phone records of potentially every
single American, and it said yes.

It failed the most crucial test of any court, which is to uphold our
liberties against any legal onslaught. It got it wrong because the
government's argument hinged on a single word, the word ``relevance.''
The court ruled that relevance means all information. In other words,
the court had to decide whether relevant information means all
information, and it said yes.

That judgment was just plain wrong, and it did not strike the Second
Circuit as a difficult question. It doesn't strike us--now in
retrospect--as a difficult question. The Second Circuit held that the
Federal Government's interpretation is ``unprecedented and
unwarranted.'' Never before, in the history of the Nation, has this
kind of bizarre overreaching been successfully entertained.

Now, the court--the Foreign Intelligence Surveillance Court--didn't
even issue an opinion. There was no way for anyone to know that this
bulk metadata collection had been authorized because the court never
told anyone, never explained itself. One can hope the Court knew what
it was thinking at the time, but we don't know what it was thinking.

Now, I don't mean any disrespect to the FISA Court, which is composed
of judges who have been confirmed by this body, article 3 judges who
serve because they have been appointed by the Chief Justice of the
United States.

The reason the court got this issue so fundamentally wrong, I think,
is because it heard only one side of the argument. It heard only the
government's side. It heard only the advocates seeking to collect in
this sweeping way that was contrary to statute and, in my view, also
contrary to fundamental rights and principles.

The USA FREEDOM Act corrects that systemic problem. It not only
enables, but it requires the court to hear both sides.

We know from our life's experience that people make better decisions
when they hear both sides of an argument. Judges on the courts know
they want to hear both sides of the argument before they make a
decision. Often they will appoint someone to make the other side of the
argument, if there isn't anyone to do so effectively. They want
effective representation in the courtroom.

That is why I have advocated from the very start and proposed--and
the President affirmed--that there needs to be advocacy for our
constitutional rights before the court. The other side of the
government's argument needs to be represented.

We need a FISA Court we can trust to get it right because this
proposal for an adversarial proceeding in no way contemplates an
abridgement of secrecy or unnecessary delay. Warrants could proceed
without delay. They could proceed without violation of confidentiality
and secrecy, but the systemic problem would be fixed so the FISA Court
would hear from both sides.

This act also is important because it would bring more transparency
to FISA Court decisions, requiring opinions to be released, unless
there is good reason not to do so. It would require some form of
effective appellate review so mistakes could be corrected.

These kinds of changes in the law are, in fact, basic due process.
They are the rule of law throughout the United States in article 3
courts, and these changes will make the FISA Court look like the courts
Americans are accustomed to seeing in their everyday experience. When
they walk into a courtroom in any town in the State of Connecticut or
the State of Utah or the State of Montana, what they are accustomed to
seeing is two sides arguing before a judge, and that is what the FISA
Court would look like--rather than one side making one argument,
whether it is for bulk collection of metadata or any other intrusion on
civil rights and civil liberties, there would be an advocate on the
other side to make the case that it is overreaching, that it is
unnecessary, that it is unauthorized. In fact, that is what the Second
Circuit said the government was doing by this incredibly overextended
overreach in bulk collection of metadata.

Unless and until this essential reform is enacted, along with other
critical reforms that are contained in the USA FREEDOM Act, I will
oppose reauthorization of section 215, and I urge my colleagues to do
so as well.

I thank my colleagues from Utah and Vermont for their leadership and
all who have joined in this morning's discussion. The colloquy today, I
think, illustrates some important points of why the USA FREEDOM Act is
important at this point in our Nation's history.

I yield the floor.

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