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

Floor Speech

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Mr. PAUL. Mr. President, tonight begins the process of ending bulk collection. The bill will ultimately pass. We always look for silver linings. I think the bill may be replacing one form of bulk collection with another, but the government, after this bill passes, will no longer collect our phone records. My concern is that the phone companies still may do the same thing. Currently, my understanding is the NSA is at the phone company sucking up the phone records and sending them to Utah. My concern is----

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Mr. PAUL. My concern is that under the new program, the records will still be sucked up into NSA computers, but the computers will be at the phone company, not in Utah. So the question is, Will it be a distinction without a difference? The question also will be, Will this be individualized?

One of the issues about the Fourth Amendment that was the biggest part of the Fourth Amendment for our Founding Fathers was that a warrant should be individualized. General warrants were what we fought the Revolution over. James Otis fought a famous case in the 1760s, and he fought against the British soldiers writing their own warrants.

What is interesting is that part of the PATRIOT Act allows our police to write their own warrants. We have something called national security letters. These have been done by the hundreds of thousands. Interestingly, when the President was in the Senate, he was opposed to national security letters and said that they should have judicial warrants. Now, it is interesting that in this bill that will pass, it is supported by the President, supported by the Director of National Intelligence, and now supported in a wide bipartisan fashion.

It concerns me whether or not----

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Mr. PAUL. It concerns me that the President, who supports the bulk data collection and has been performing it illegally for 6 years, now supports this bill. The devil is in the details.

The question is, Will the new bill still allow bulk collection by the phone companies? Will they be able to put into the search engine not an individual about whom we have suspicion but an entire corporation? This is what was revealed when we saw the warrant that had Tsarnaev's name on it.

The Director of National Intelligence came before the American people, came before Congress and swore under oath that they weren't doing this. Part of my problem with the intelligence-gathering in our country is it is hard for me to have trust. It is hard for me to have trust in the people to whom we are giving great power.

They also insist we won't be able to catch terrorists. They insist the bulk collection allowed them to catch terrorists. But then it turned out, when it was investigated, when we looked at the classified documents, when the President's bipartisan privacy and civil liberties commission looked at this, when his review board looked at this, and then when the Department of Justice inspector general looked at this, they all found that there was no unique data, there was no great discovery, there was no great breaking up of a terrorist ring.

People have brought up the Boston Bomber, the Tsarnaev boy. They say: Well, we need this. We need the PATRIOT Act after the bombing to get his phone records.

That is the most absurd thing I have ever heard. He has already committed a bombing. In fact, I think he was dead at that point, and they are saying we couldn't get a warrant to look at his phone records? It is absolutely absurd.

I had a meeting with somebody from the intelligence community about 6 months ago, and I asked them this question: How do we get more information about terrorists--with a warrant with their name on it, where we can go as deep into the details as we want, or this metadata collection that uses a less-than-constitutional standard? And he said: Without question, we get more information with a warrant than we do through the metadata.

When someone commits an act of atrocity, there is no question we would get a warrant, but I would go even further. I would say that I want to get more warrants on people before they blow up things. I would say that we need more money spent on FBI agents analyzing data and trying to find out whom we have suspicion about so we can investigate their records. I think we spend so much money on people about whom there is no suspicion that we don't have enough time and money left to go after the people who would actually harm us.

The people who argue that the world will end at midnight tonight----

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Mr. PAUL. The people who argue that the world will end and that we will be overrun by jihadists tonight are trying to use fear. They want to take just a little bit of our liberty, but they get it by making us afraid. They want us to fear and give up our liberty. They tell us that if we have nothing to hide, we have nothing to fear. That is a far cry from the standard we were founded upon--innocent until proven guilty.

One of the objections I tried to bring forward earlier but was interrupted repeatedly was that the PATRIOT Act was originally intended to go after foreigners and terrorists. We allowed a less-than-constitutional standard. We didn't ask for probable cause; we just said it had to be relevant, the information had to be relevant to an investigation about terrorists. But here is the problem, and this is one of the big problems I have with the PATRIOT Act.

We now use parts of the PATRIOT Act to arrest people for domestic crime. Section 213, sneak-and-peek, where the government can come into your house, place listening devices, never announce they were ever in your house, and then leave and monitor your behavior and never let you know they were there, is being used 99.5 percent of the time for domestic crime.

So, little by little, we have allowed our freedom to slip away. We allowed the Fourth Amendment to be diminished. We allowed the narrowing loss of something called probable cause.

People say: Well, how would we get terrorists with that?

The vast majority of warrants are approved in our country--the vast majority of warrants that are Fourth Amendment warrants where we individualized and put a name on it and asked probable cause. If tonight the police are looking for a rapist or a murderer, they will go to the house, and if they suspect the person is inside but nothing is imminently happening, they will stand on the curb and they almost always get a warrant.

Do you think there is a judge in this land who would not grant a warrant--particularly after the Boston bombing--to look at the Tsarnaev brothers' records? There is not a judge in the land who would say no. I would venture to say that in advance there is not much chance that a judge would say no if you went to them and said: The Russians have given us indication and evidence that he has been radicalized and has associated overseas with people who are training to attack us.

There is no reason why the Constitution can't be used. But we just have to not let those who are in power make us cower in fear. They use fear to take your freedom, and we have to be very, very careful of this.

Now, some are saying I am misrepresenting this, that I am saying the government is listening to your phone calls. I am saying they are collecting your phone records. There are programs, though, in which there may be looking at content--emails, for example. The current law says that after 6 months even the content of your email has no protection. We have a very good piece of legislation to try to fix that. But realize that those who are loud, those who are really wanting you to give up your freedom, don't believe the Fourth Amendment protects your records at all.

And this is a big debate. We went to the court. The Second Circuit Court of Appeals--the highest court in the land just below the Supreme Court--said that what they are doing is illegal, but we don't yet have a ruling on whether it is constitutional.

One of my fears about the bill we are going to pass--the sort of in-between step some think may be better--is that it could moot the case. This means the court case will never get heard by the Supreme Court. I have a court case against the NSA. There is another district court that has ruled against the NSA. We now have an appellate ruling against the NSA. The court may well look at the activity of the Senate and say: Well, you guys have fixed the problem. We don't need to look at it anymore. It is no longer relevant.

My other concern about this new bill that is going to pass is that the same people will judge it who judged the previous system. These people are called the rubberstamp courtroom, also known as FISA. Realize that the FISA Court is the court that said the collection of all Americans' records is relevant. The appellate court basically laughed at this notion and said that it sort of destroys any meaning to the word ``relevant'' if you collect everybody's records. It is not even a modifier. Instead of saying ``relevant,'' they should have said ``You can have everyone's records all the time.''

One of my other concerns about the in-between solution we are going to choose is that some are conjecturing--and you have to be suspicious of a government that often lies about their purpose--some are conjecturing that they are going to collect more phone data under the new system. One of the complaints last week, as there was discussion about this--in the newspaper, it was reported that really they were only collecting about 20 to 30 percent of your cell phone data. They were trying to collect all of your land line data, but they weren't for some reason collecting all of your cell phone data. One of my concerns is that as we go to this new system, they may actually be better at collecting our phone records and they may well be able to collect all of our cell phone data.

Unless we go to a system where we individualize the warrants, unless we go to a system where a person's name is on the warrant, I am going to be very, very concerned.

Now, we will present amendments on this bill. We tried to negotiate to be allowed to present amendments, but there wasn't a lot of negotiating that went on in the last week--in fact, there was none. We will still try. We will put amendments forward, and we will try to get amendments to make the bulk collection less bad when it does occur. One of the things we would like to do is to say that when they search the phone records, they can't put the name of a corporation in there; they would have to put in an individual's name.

It is kind of tricky, the way these things are worded. The wording of this bill will say they can only put a U.S. person into the selector term to search all phone records. The problem is that they define ``U.S. person'' as also meaning corporation or association or grouping. So there is a little bit of looseness to the language. So if we are still going to allow corporations, what is to stop them from going back and putting AT&T or Verizon in the selection? Once again they will be looking at all the phone records, and all we will have done is transferred the phone records from government control in Utah to phone company control in another location. Will we be trading bulk collection in Utah for bulk collection under the phone companies?

There are good people who believe this bill will reform, and I think they are well-intended. I think they are good people who really think that we will end bulk collection and that it won't happen. My fear, though, is of the people who interpret this work at a place known as the rubberstamp factory over at FISA. It is a secret court, and it is a court in which 99.5 percent of the time they approve warrants. Warrants are simply rubberstamped over there. In fact, they approved that ``relevant'' meant all of your records. So my question is, If they put AT&T as a selector item, will we have the same thing, just in a different location?

I have several amendments I am interested in if we are able to amend the bill.

One is that the search would have to be an individual. That is more consistent with the Fourth Amendment.

Another one would change the standard to the constitutional standard, which would be that there would have to be probable cause, which is a higher standard than simply saying it is relevant. Then we would actually be sending a new signal to the FISA Court.

Another amendment I have, which I think would go a long way toward making the PATRIOT Act less bad--I think is the best way to put it--would be to say that any information gathered under a less-than-constitutional standard could only be used for foreigners and terrorists. See, that was the promise. At the time, there were people who opposed the PATRIOT Act--not enough, but there were a few--and when they opposed the PATRIOT Act, they said their fear was that it would be used against American citizens.

They said: No, no, we are only going after terrorists. But the law allows them to do it, and we now have sections of the PATRIOT Act which 99.5 percent of the time are being used for domestic crime. We have also seen that the Drug Enforcement Agency--it is alleged--is using information gathered under the PATRIOT Act to then go back and recreate cases against people for domestic crime.

The question we have to ask ourselves is, Are we so frightened that we are willing to give up our freedom? Are we really willing to trade liberty for security?

I think the U.S. Court of Appeals had some great points that they made when they ruled against the government, and I think what is important to know is that the President has continued to do this illegally. You have seen him on television. The President has been saying: Well, Congress is just getting in the way. If Congress would just do their job and get rid of this, everything would be OK. But the truth is that Congress never authorized this. Even the authors of the PATRIOT Act said this was not something Congress ever even contemplated. The court is now saying that as well. This was done by the executive branch--admittedly, both a Republican executive branch and a Democratic executive branch--but this wasn't created by Congress.

So when the President says ``Well, Congress should just do this,'' the question that has never been asked by anyone in the media is ``Why doesn't he stop it?'' Everybody who has given advice has said he would, and he will come out and say he believes in a balanced solution, but he really is just abdicating the solution and has never discontinued the program, even when he has been told explicitly by the court that the program is an illegal program.

This is what the U.S. court of appeals said in the case ACLU v. Clapper:

We agree with the appellants that such an expansive concept of ``relevance'' is unprecedented and unwarranted. ..... The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects.

So even two steps removed, we are gathering records that are completely irrelevant to the investigation. We are gathering up the phone records of innocent Americans.

The other side will say: Well, we are not looking at them.

So I have been thinking about this. Our Founders objected to the British soldiers writing warrants. They objected to them coming into their house and grabbing their papers. Do you think our Framers would have been happy if the British Government said: OK, we are just breaking your door down, we are just getting your papers, but we are not going to look at them. Do you think that would have changed the mindset of the Framers? So the fact that they say they are not looking at our records--is that any comfort or should it be any comfort? The act of violation is in taking your records. The act of violation is in allowing the police or a form of the police--the FBI--to write warrants that are not signed by a judge.

The court goes on to say: ``The interpretation that the government asks us to adopt defies any limiting principle.'' The idea of a limiting principle when the court looks at things is that, the way I see it, is the difference between something being arbitrary, where there is no sort of principle that confines what would happen--if you have a law that has no limiting principle, it is essentially arbitrary.

This is what Hayek wrote about in ``The Road to Serfdom.'' Hayek talked about the difference between the rule of law and having an arbitrary interpretation of the law.

The danger of having an arbitrary interpretation of the law and the danger of having general warrants is that they have been used in the past with bias. People have brought their own bias into this. In the sixties, the bias was against civil rights activists and against Vietnam war activists. In the forties, the bias was in incarcerating and interring Japanese Americans. But what was consistent in all of these circumstances was that there was a generalization--a generalization based on the color of your skin, whether you were Asian American or African American, and also about the shade of your ideology. There is a danger in allowing the government to generalize without suspicion and to disobey the Fourth Amendment, a[Page: S3333]nd the danger comes that the government could one day generalize and bias could enter into things.

We have on our records right now laws that allow an American citizen to be detained. It is not specifically a part of the PATRIOT Act, but it is along the same lines as this, that you are getting rid of the due process amendments and the ability of the Bill of Rights to protect an individual. When we allow an individual to be detained without a trial, what happens is that there is the possibility that someone could decide we don't like ``those'' people. And when you say that could never happen, think about the times in our history when it has.

Richard Jewell, everybody said he was the Olympic Bomber. He was convicted on TV. Within hours, people said: Richard Jewell is guilty. Think about if he had been a Black man in 1920 in the South what may have happened to him. Think about the possibility for bias entering into our government. Think about what Madison said about government is--Madison said that we restrain government because we are worried that government may not be comprised of angels. If government were comprised of angels, we would not have to worry about restraining government.

Patrick Henry said that the Constitution was about restraining government, not the people. It is not enough for people to say: Oh, I am a good man or I am a good person or the NSA would never do this. The other problem that makes us doubtful is that the NSA has not been honest with us. If they want to develop trust again, the President should have immediately let the person who lied to us go, the Director of National Intelligence.

The appeals court concluded by saying that the government's bulk collection of telephone metadata exceeds the scope of what Congress has authorized and therefore violates section 215 of the PATRIOT Act. Some will try to argue that this debate was not worth the time we took on it. I could not disagree more. I am like everybody else. You know, I prize my time with my family and being at home on the weekends. I wish we would have done this in a more sensitive way, where we would have had more time and had an open amendment process.

But we waited until the end. We waited until the final deadline. This is a characteristic of government. It is a flaw in government, frankly. We lurch from deadline to deadline. People wonder why Congress is so unpopular. It is because we go from deadline to deadline and then it is: Hurry up. We have no time to debate. We just must pass it as is.

The biggest debate against amendments is--and it finally convinced people who did not like this. They so much dislike amendments and slowing down the process, they are just going to take it. Even though they don't like it, they are going to pass what the House passed. It is unlikely any amendments will pass.

But the thing is, we need to get away from lurching from deadline to deadline. What happens, with budget or spending or any of these bills, is we are presented with thousand-page bills with only hours to go. About a year ago this came up. At that time, we were presented with a 1,000-page bill with 2 hours to go. I read the Senate rules. It said: We are supposed to be presented with the bill for 48 hours in advance.

So I raised my hand and made a motion. The motion I made was: Guys, we are breaking the rules here. Men and women, we are breaking the rules here. So they just voted to amend the rules for that bill and ignore the rules. This is why the American people are so frustrated. People here in town think I am making a huge mistake. Some of them, I think, secretly want there to be an attack on the United States so they can blame it on me. One of the people in the media the other day came up to me and said: Oh, when there is a great attack, are you going to feel guilty that you caused this great attack?

The people who attack us are responsible for attacks on us. Do we blame the police chief for the attack by the Boston Bombers? The thing is, is that there can be attacks even if we use the Constitution. But there have been attacks while collecting your bulk data. So the ones who say: Well, when an attack occurs, it is going to be all your fault, are any of them willing to accept the blame? We have bulk collection now. Are any of them willing to accept the blame for the Boston bombing, for the recent shooting in Garland?

No, but they will be the first to point fingers and say: Oh, yes, it is all your fault. We never should have given up on this great program. I am completely convinced that we can obey the Constitution, use the Fourth Amendment as intended, spirited letter of the law, and catch terrorists. When we look objectively at this program, when they analyzed the classified information, they found that there was no unique data. We had to fight them tooth and nail because they started out saying that 52 cases were cracked by the bulk data program.
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But then when the President's own bipartisan commission looked at it, it turned out that none of that was true. This gets back to the trust issue. If we are going to be lied to by the Director of National Intelligence, it is hard for us to believe them when they come forward and they say: Oh, this is protecting us. We have to have it. But what we are hearing is information from someone who really did not think it was a big deal to lie to us about whether the program even existed.

Mark my words, the battle is not over. There are some--and I talked with one of the, I would say, smarter people in Silicon Valley, somebody who knows this from an intimate level, how things work, and how the codes and programs work.

He maintains that the bulk collection of phone data is the tip of the iceberg, that there is more information in other data pools that are classified. Some of this is done through an Executive order called 12333. I am not sure I know everything in it. I have had no briefings on it. So anything I will tell you is from the newspaper alone. But the thing is, is that I would like to know: Are we also collecting your credit card information? Are we collecting your texts? Are we collecting your emails?

They have already told us the Fourth Amendment does not protect your emails, even the content, after 6 months. In fact, really they have told you, the Fourth Amendment does not apply to your records at all. So be very careful about the people who say: Trust us. We will never violate your freedom. We will never take advantage of things. The President's Privacy and Civil Liberties Oversight Board's conclusion was that:

Section 215 of the PATRIOT Act has shown minimal value in safeguarding the Nation from terrorism. We have not identified any single instance involving a threat to the United States in which the program made a concrete difference in the outcome.

The President's privacy board went on to say:

The government's collection of a person's entire telephone calling history has a significant and detrimental effect on individual privacy.

When they talked about whether the phone records were relevant to an investigation, the President's Commission said this:

First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk, potentially encompassing all telephone calling records across the Nation, they cannot be regarded as relevant to any FBI investigation.

Here is the continuing danger to us, though: It is, I think, maybe a minor success that we are going to prevent the government from collecting these records. But realize that the interpretation of this will still occur in secret in the FISA Court. This is the FISA Court that said that collecting everyone's records was relevant.

It completely destroys the notion that the word ``relevant'' has any meaning at all. This will be the question: Whether we can trust the FISA Court to make an interpretation that is at a higher degree of discernment than the one in which they said ``relevant'' can mean anything. The original USA FREEDOM Act, as passed originally by the House committee, was a better bill. It was gradually watered down until even the Director of National Intelligence, the one who lied about the program, now supports it, which gives me some misgivings.

But the records that will be collected--the question is, How will we have an interpretation by the FISA Court? The original bill had an advocate. I thought this was a good part of the original bill. There would be a judicial advocate who would argue on the side of those who were having their records taken. So there would be an adversarial court, lawyers on both sides.

Many people who write about jurisprudence and trying to find justice say that one of the essential functions of a court system, in order to find justice, is that there has to be a lawyer on both sides. There has to be an advocate on both sides. The truth is not always easy to find. The truth is presentation of facts by one side, presentation of contrary facts by the other side, and someone has to figure out which facts are more believable or which facts trump other facts.

So I think a judicial advocate would have been good. They are still going to have it. They call it by a different name now, but it will be optional at the discretion of the FISA Court. So the court that ruled that all of your records are relevant now will have a choice as to whether to give you an advocate. That does not give me a great deal of comfort.

There are other ways we could do this. We occasionally do look at terrorism cases in regular Federal court. When names come up that could jeopardize someone's safety at our intelligence agency or a secret, Federal courts can go into secret session. I have heard the Senator from Oregon often mention this. I think it is a great point that no one wants to reveal the names of anyone or the code or the secrets of how we do this. But if we are talking about constitutional principles, we want to do it in the open. Laws should not be discussed in secret.

As we move forward, the PATRIOT Act will expire tonight. It will only be temporary. They will ultimately get their way. But I think the majority of the American people actually do believe the government has gone too far. In Washington, it is the opposite, but I think Washington is out of touch. There will be 80 votes, you know, to say: Continue the PATRIOT Act--maybe more.

But if you go into the general public, if you get outside the beltway and visit America, you find it is completely the opposite. There was a poll a couple of weeks ago that said: Over 80 percent of people under age 40--over 80 percent of them--think that the government collecting your phone records is wrong and should not occur. So I think really this will be useful. People say: You are destroying yourself. You should have never done this. The American people will not side with you.

People wished me harm and wished that this would be unsuccessful. But you know what, I came here to defend the Bill of Rights and to defend the Constitution, popular or not. But I frankly think that the Bill of Rights and the Constitution are very popular, very important, and I will continue, as long as I have breath and as long as I am here to defend them.

I yield back the remainder of my time.

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