USA Freedom Act of 2015 -- Motion to Proceed -- Continued

Floor Speech

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Mr. HEINRICH. First, I thank my friend from Oregon and I recognize the substantial leadership he has shown on this issue over the years. Long before I came to the Intelligence Committee and long before Edward Snowden began to steal documents, Senator Wyden, along with Senator Mark Udall and others, were doing everything they could--without disclosing classified information--to shine a light on the fact that the U.S. Government was collecting massive volumes of data on millions of law-abiding American citizens.

My friend from Oregon deserves our thanks for that leadership.

Now, after the bulk call data collection program was revealed to the public, the government, frankly, defended it and defended it vigorously. It took a number of months for the intelligence community and the rest of the administration to take a deep breath and really assess whether bulk metadata collection was necessary, whether it was effective, and to consider whether there were other less intrusive, more constitutionally grounded ways to accomplish these same goals.

Starting with the President's Review Group on Intelligence and Communications Technologies, the administration began to agree that ``some of the authorities that were expanded or created in the aftermath of September 11 unduly sacrifice fundamental interests in individual liberty, personal privacy, and democratic governance.'' And they recommended changing those authorities in order to ``strike a better balance between the competing interests and providing for the common defense and securing `the Blessings of Liberty to ourselves and our Posterity.' ''

Following that, multiple efforts have been made to update and reform FISA and to update and reform the USA PATRIOT Act. None of those have been successful. But now we are forced to come to a resolution through a combination of, frankly, procrastination, and, I think, misguided hope that the American people would look the other way while the government continued to vacuum up and store their personal information and data as part of a program that even the intelligence community acknowledges can be accomplished through less intrusive means.

I will be honest. The current USA FREEDOM Act isn't what I consider perfect. For example, I prefer that it include strong reform of section 702 collection, but I accept that circumstances require us to be pragmatic, require us to govern and move forward and to work with one another in both parties to find compromise. That is what the USA FREEDOM Act is. It is a product of bipartisan compromise.

That is why it passed the House of Representatives by a vote of 338 to 88. And let's be blunt, many of those who voted against it didn't do so because they support bulk collection. They did so because they want to see section 215 wither and die in its entirety.

That is the political reality we face today, and we need to accept it rather than demanding a continuation of a program that the appeals court has determined is illegal.

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Mr. HEINRICH. I thank my friend from Oregon and begin by saying that despite what we may have heard from talking heads on the Sunday shows and on the cable news networks, the answer is no. There is simply no evidence to support those claims.

When this mass surveillance was first revealed to the public 2 years ago, the executive branch initially responded to questions like this by claiming that various post-9/11 authorities had resulted in the thwarting of approximately ``54 terrorist events in the U.S. homeland and abroad.''

Now, a number of us, including my friend from Oregon and my former colleague from Colorado, Senator Udall, began to pull on that thread to really parse down and see just what the executive branch was talking about. First, of those 54 terrorist events, it turned out that only 13 were actually focused in the United States. But more importantly, those numbers conflated multiple different programs, including authorities under section 215 and different authorities under section 702.

On June 19, 2013, my colleague from Oregon and Senator Udall pointed out that ``it appears that the bulk phone records collection program under section 215 of the USA PATRIOT Act played little or no role in most of these disruptions. Saying that `these programs' have disrupted `dozens of potential terrorist plots' is misleading if the bulk phone records collection program is actually providing little or no unique value.''

Of the original 54 instances the executive branch pointed to, every one of them crumbled under scrutiny. None of them actually justified the continued existence of the bulk collection program.

Let me take a moment, with the indulgence of our colleagues, and read what was written by Judge Leon of the District Court for the District of Columbia, when he ruled in the Klayman v. Obama case. This is a little long, but I think it is important this be part of the official record of this debate.

Judge Leon writes:

[T]he Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three ``recent episodes'' cited by the Government that supposedly ``illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack'' involved any apparent urgency.

He continues to write that:

[]In the first example, the FBI learned of a terrorist plot still ``in its early stages'' and investigated that plot before turning to the metadata ``to ensure that all potential connections were identified.'' []Assistant Director Holley does not say that the metadata revealed any new information--much less time-sensitive information--that had not already come to light in the investigation up to that point.

The judge continues:

[]In the second example, it appears that the metadata analysis was used only after the terrorist was arrested ``to establish [his] foreign ties and put them in context with his U.S. based planning efforts.'' []And in the third, the metadata analysis ``revealed a previously unknown number for [a] co-conspirator ..... and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.''

Continuing to quote Judge Leon:

[]Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only ``sometimes provides information earlier than the FBI's other investigative methods and techniques.''

Finally, Judge Leon writes:

[]Given the limited record before me at this point in the litigation--most notably, the utter lack of evidence that a terrorist attack has ever been prevented because of searching the NSA database was faster than other investigative tactics--I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

That is where the judge leaves off. And I will turn back to the Senator from Oregon to address the three cases we discussed in more detail in our amicus brief to the Second Circuit.

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Mr. HEINRICH. I wish to expound on that point a bit, about the many other ways the government can legitimately acquire phone records of terrorism suspects, because I think this is a very important point to understand the tools that already exist that have been very effective and have proven themselves over time.

There are actually a number of legal authorities that can get the same information without the government collecting billions of call records--billions of call records that, in large part, belong to innocent Americans.

For example, the Stored Communications Act permits the government to obtain precisely the same call records that are now acquired through bulk collection under section 215 when they are ``relevant and material to an ongoing criminal investigation.''

Additionally, national security letters, which I point out do not require a court order, can also be used by the government to obtain call records for intelligence purposes.

Further, the government can also acquire telephony metadata on a real-time basis by obtaining orders from either regular Federal courts or the FISC for the installation of pen registers or trap-and-trace devices.

Finally, individualized orders for phone records, as opposed to orders authorizing broad bulk collection, can also be obtained under section 215.

I think those of us early in this debate thought that was what was going to occur under the PATRIOT Act in the first place. But that is what the USA FREEDOM Act seeks to require while prohibiting the bulk collection of millions of personal records. It even includes emergency authorization authority for the government to get records prior to getting court approval, subject to later court approval, in an emergency.

The government can use any of these authorities without any more evidence than what is currently required to use the bulk phone records database, with less impact, I would point out, on the privacy interests of millions of innocent Americans.

I think at this point the Senator from Oregon and I have laid out our case as to why this dragnet bulk surveillance program fails to make our country measurably safer and why it should end. I am pleased to say that a number of people have finally come around to our way of thinking on this.

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Mr. HEINRICH. I thank my friend from Oregon. I think he could not have chosen a more appropriate way to end than to reference what Ben Franklin said so many years ago, that great quote that ``those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.''

While many reforms still lie in front of us, I think, as we move forward to approving the USA FREEDOM Act, we move a lot closer to the balance that Ben Franklin articulated so well over 200 years ago. I look forward to working with my colleague from Oregon and all of our colleagues in achieving that balance and standing up for our constituents.

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