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Mr. WYDEN. Mr. President, I thank Leader Reid for the honor of being able to open this morning's debate. I also wish to particularly identify with a point the leader made. There is an old saying that most of life is just showing up. I think what the American people want--I heard this at checkout lines in our local stores, for example, this week--they want everybody back in Washington and going to work on this issue, just as the leader suggested.
I think Senators know I am a charter member of what I guess you could call the optimist caucus in the Senate. As improbable as some of these talking heads say on TV that it is, I still think we ought to be here, just as the leader said, working on this issue because of the consequences.
Mr. REID. Mr. President, will my friend yield for a question?
Mr. WYDEN. I would be happy to yield to the majority leader.
Mr. REID. The distinguished Senator from Oregon and I served together in the House of Representatives. Does the Senator remember the days when the House voted not as a majority but as a body to come up with how legislation should be given to the American people? Does my friend remember that?
Mr. WYDEN. I do. The leader is being logical, and Heaven forbid that sometimes logic break out on some of these matters. I remember when we started out--and I joked that I had a full head of hair and rugged good looks--the majority leader and I used to work with people on both sides of the aisle. We would try to show up early, go home late, and, as the leader said, focus on getting some results. I thank the leader for his point and again for the honor of being able to start this discussion.
As I indicated, what I heard at home is that we are supposed to be here and try to find some common ground. I know the talking heads on TV say this is impossible and it cannot be done. First of all, as the majority leader said, this has been done in the past. When there are big issues and big challenges, historically the Congress will come together and deal with it.
I am particularly concerned about some of the effects going over the cliff will have on vulnerable senior citizens. As the Presiding Officer knows, that is my background. We have often talked about health care and seniors. My background was serving as codirector of the Oregon Gray Panthers. If the reimbursement system for Medicare, in effect, goes over this cliff, that is going to reduce access to health care for senior citizens across the country, and I don't believe there are Democrats and Republicans who want that to happen.
As the majority leader indicated, finding some common ground on this issue and backing our country away from the fiscal cliff is hugely important and crucial to the well-being of our country. I just wanted to start with those remarks.
Also crucial to our country is the legislation before the Senate right now. Its name is a real mouthful.
Mr. President, I think you will recall this legislation from your days serving on the Senate Select Committee on Intelligence. The name of this is the Foreign Intelligence Surveillance Act Amendments Act. It also expires in a few days. Our job is to find a way to strike the best possible balance between protecting our country from threats from overseas and safeguarding the individual liberties of the law-abiding Americans we have cherished in this country for literally hundreds of years. This task of balancing security and liberty was one of the most important tasks defined by the Founding Fathers years and years ago, and it is no less important for the Congress today.
As I indicated earlier, the majority leader, Leader Reid, has accorded me the honor of beginning this debate. I will open with a very short explanation of what the FISA Amendments Act is all about. Of course, this is an extension of the law that was passed in 2008. It is a major surveillance law, and it is the successor to the warrantless wiretapping program that operated under the Bush administration, which gave the government new authorities to collect the communications of foreigners outside the United States. The bill before the Senate today would extend this law for another 5 years.
There is going to be a discussion of various issues, but all of them go to what I call the constitutional teeter-totter, which is basically balancing security, protecting our country at a dangerous time, and the individual liberties that are so important to all of us. I expect there will be amendments to strengthen protections for the privacy of law-abiding Americans.
I want to say to my colleagues and those who are listening that this is likely to be the only floor debate the Senate has on this law encompassing literally a 9-year period--from 2008 to 2017. So if we are talking about surveillance authority that essentially looks to a 9-year period, we ought to have an important discussion about it, and that is why I am grateful to the majority leader for making today's discussion possible.
I have served on the Senate Intelligence Committee for 12 years now, and I can tell every Member of this body that those who work in the intelligence community are hard-working and patriotic men and women. They give up an awful lot of evenings, weekends, and vacations to try to protect the well-being and security of our country. For example, we hear a lot about a well-publicized event, such as their enormously valuable role in apprehending bin Laden. What we don't hear about is the incredible work they do day in and day out. They work hard to gather intelligence, and I commend them for it as we begin this discussion.
The job of those who work in the intelligence community is to follow whatever laws Congress lays down as those hard-working men and women collect intelligence. Our job here in the Congress is to make sure the laws we pass are in line with the vision of the Founding Fathers, which was to protect national security as well as the rights of individual Americans.
We all remember the wonderful comment by Ben Franklin. I will paraphrase it, but essentially Ben Franklin said: If you give up your liberty to have security, you really don't deserve either. We owe it to the hard-working men and women in the intelligence community to work closely with them. We need to find the balance Ben Franklin was talking about, and we can help them by conducting robust oversight over the work that is being done there so members of the public can have confidence in the men and women of the intelligence community. This will give the public the confidence to know that as we protect our security at a dangerous time, we are also protecting the individual liberties of our people.
The story with respect to this debate really begins in early America when the colonists were famously subjected to a lot of taxes by the British Government. The American colonists thought this was unfair because they were not represented in the British Parliament. They argued that if they were not allowed to vote for their own government, then they should not have to pay taxes.
We all remember the renowned rallying cry of the colonists. It was ``no taxation without representation.'' Early revolutionaries engaged in protests against these taxes all over the country. Of course, the most famous of these protests was the Boston Tea Party in which colonists threw shiploads of tea into the Boston Harbor in protest of the tax on tea.
As we recall from our history books, there were a lot of taxes on items such as tea, sugar, paint, and paper. Because so many colonists believed these taxes were unjust, there was a lot of smuggling going on in the American Colonies. People would import things, such as sugar, and simply avoid paying the tax on them.
We all remember that the King of England didn't like this very much. He wanted the colonists to pay taxes whether they were allowed to vote or not. So the English authority began issuing what were essentially general warrants. They were called writs of assistance, and they authorized government officials to enter into any house or building they wanted in order to search for smuggled goods. These officials were not limited to only searching in certain houses, and they were not required to show any evidence that the place they were searching had any smuggled goods in it. Basically, government officials were allowed to say they were looking for smuggled goods and then would search any house they were interested in to see if the house had some of those smuggled goods.
An English authority's goal is to find smuggled goods. Letting constables and customs officers search any house or building is a pretty effective way to go out and find something. If they keep searching enough houses, eventually they will find some smuggled goods in one of them and seize those goods and arrest whoever lives in that house for smuggling. Of course, the problem is that if government officials can search any house they want, they are going to search through the houses of a lot of people who have not broken any laws.
Mr. President, it is almost as if you decided you were going to search everybody in your State of Rhode Island. You could go in and turn them all upside down, shake them, and see if anything fell out. Obviously, you would find some people who had some things in their possession that they should not have, but that is not the way we do it in America. In America, there has to be probable cause in order to do something like that.
The American colonists had a huge problem with the idea that everybody's house was going to be checked for smuggled goods on the prospect that maybe somebody somewhere had engaged in smuggling. The colonists said it is not OK to go around invading people's privacy unless there is some specific evidence that they have done something wrong. That is how people in Rhode Island and Oregon feel today. One cannot just go out and check everybody in sight on the prospect that maybe there is someone who has done something wrong.
Back in the colonists' time, the law said that these writs of assistance were good until the King died. So when King George II died and the authorities had to get new writs, many colonists tried to challenge them in court.
In Boston, James Otis denounced this mass invasion of privacy by reminding the court that--and we remember this wonderful comment--a man's house is his castle. Mr. Otis described the writs of assistance as the power that places the liberty of every man in the hands of every petty officer. Unfortunately, the court ruled that these general orders permitting mass searches without individual suspicion were legal, and English authorities continued to use them. The fact that English officials went around invading people's privacy without any specific evidence against them was one of the fundamental complaints the American colonists had against the British Government.
So naturally our Founding Fathers, with the wisdom they showed on so many matters, made it clear they wanted to address this particular complaint when they wrote the Bill of Rights.
The Bill of Rights ensures that strong protections of individual freedom would be included within our Constitution itself, and the Founding Fathers included strong protections for personal privacy in the fourth amendment. The fourth amendment states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be searched.
This was a direct rejection of the authority the British had claimed to have when they ruled the American Colonies.
The Founding Fathers said our government does not have the right to search any house that government officials want to search even if it helps them to do their job. Government officials may only search someone's house if they have evidence that someone is breaking the law and they show the evidence to a judge to get an individual warrant.
For more than 200 years, this fundamental principle has protected Americans' privacy while still allowing our government to enforce the law and to protect public safety.
As time passed and we entered the 20th century, advances in technology--a whole host of technologies--gave government officials the power to invade individual privacy in a whole host of new ways--new ways the Founding Fathers never dreamed of--and all through those days, the Congress and the courts struggled to keep up.
Time and time again Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment. It is striking. If we look at a lot of the debates we are having today about the Internet--and the Presiding Officer has a great interest in this; we have talked often about it--certainly the Founding Fathers could never have envisioned tweeting and Twitter and the Internet and all of these extraordinary technologies. But what we have seen as technology has continued to bring us this treasure trove of information with all of these spectacular opportunities the Founding Fathers never envisioned is that time and time again the Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment.
For example, in 1928 the Supreme Court considered a famous case about whether the fourth amendment made it illegal for the government to listen to an individual's phone conversations without a warrant. Once again, dating almost to the precedent about the colonists and smuggling, the 1928 case was about smuggling--specifically, bootlegging. The government argued then that as long as it did the wiretapping remotely without entering an individual's house, the fourth amendment would not apply.
Now, Justice Louis Brandeis wrote what has come to be seen in history as an extraordinary dissent, a brilliant dissent, and he argued that this was all wrong; that the fourth amendment was about preventing the government from invading Americans' privacy regardless of how the government did it.
I am just going to spend a couple of minutes making sure people see how brilliant and farsighted Justice Brandeis was in how his principles--the principles he talked about in 1928--are as valid now as they were then.
Justice Brandeis said:
When the Fourth and Fifth Amendments were adopted . . . force and violence were then the only means known to man by which a Government could directly effect self-incrimination. . . . Subtler and more far-reaching means of invading privacy have [in effect] now become available to the Government. Discovery and invention have made it possible for the Government . . . to obtain disclosure in court of what is whispered in the closet.
Justice Brandeis goes on to say:
In the application of a Constitution, our contemplation cannot be only of what has been but of what may be. The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ``That places the liberty of every man in the hands of every petty officer'' was said by James Otis of much less intrusions than these.
Justice Brandeis goes on to say:
The principles, literally--
[behind the Fourth Amendment] affect the very essence of constitutional liberty and security. They ..... apply to all invasions on the part of the Government and its employees of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where the right has never been forfeited by his conviction of some public offense.
Justice Brandeis closes this remarkable dissent saying:
..... The evil incident to invasion of the privacy of the telephone is far greater than that involved with tampering with the mails. ..... As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping.
The protection guaranteed by the amendments Justice Brandeis was referring to--the fourth and fifth amendments--is broad in scope.
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans and their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government on the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Because I have outlined Justice Brandeis's dissent on several issues, I want to make sure those last two sentences are clear.
Justice Brandeis said that the right of the people to be left alone by their government is ``the most comprehensive of rights''--the most comprehensive of rights, said Justice Brandeis--and, he said, ``the right most valued by civilized men.'' And the Justice said that intrusions on individual privacy, ``whatever the means employed, must be deemed a violation of the Fourth Amendment.''
The reason I have outlined Justice Brandeis's views on this issue is that Justice Brandeis's views didn't prevail in 1928. Back in 1928 they thought they were dealing with high-tech surveillance. But suffice it to say that his views were eventually adopted by the full Supreme Court. That is why I believe it is so important that as we look to today's debate--really an opportunity to update the way in which that careful balance, the constitutional teeter-totter: security, well-being of all of us on this side and individual liberties on this side--it is so important to recognize what Justice Brandeis said about the value of getting it right when it comes to liberty, when it comes to individual freedom.
One of the reasons there are amendments being offered by Senators to this legislation at a time when we are dealing with these crucial issues about the fiscal cliff, the question of the budget, taxes, and, as I mentioned, senior citizens being able to see a doctor--those are crucial issues, but this legislation, the FISA Amendments Act, is also a crucial piece of legislation, and that is why Senators will be offering amendments in order to strike the best possible balance between security and liberty.
When the Foreign Intelligence Surveillance Act, which is often known as FISA--Senators and those listening will hear that discussion almost interchangeably; the abbreviated name is FISA--when it was written in 1978, Congress applied Justice Brandeis's principles to intelligence gathering. The Congress, when they wrote the original FISA legislation in 1978, really said that Justice Brandeis got it right with respect to how we ought to gather intelligence. So the original FISA statute stated that if the government wants to collect an American's communications for intelligence purposes, the government must go to a court, show evidence that the American is a terrorist or a spy, and get an individual warrant. This upheld the same principle the Founding Fathers fought for in the revolution, it is the same principle enshrined in the Bill of Rights, and it said that government officials are not allowed to invade Americans' privacy unless they have specific evidence and an individual warrant.
After 9/11, the Bush administration decided it would seek additional surveillance authorities beyond what was in the original Foreign Intelligence Surveillance Act statute. To our great regret, instead of asking the Congress to change the law, the Bush administration developed a warrantless wiretapping program--let me repeat that, a warrantless wiretapping program--that operated in secret for a number of years. When this became public--as I have said on this floor before, these matters always do become public at some point--when it became clear that the Bush administration had developed this warrantless wiretapping program, there was a huge uproar across the land. I remember how angry many of my constituents were when they learned about the warrantless wiretapping program, and I and a lot of other Senators were very angry as well.
As has the Presiding Officer, I have been on the Intelligence Committee, and I have been a member for 12 years, but the first time I heard about the warrantless wiretapping program--the first time I heard about it--was when I read about it in the newspapers. It was in the New York Times before I, as a member of the Senate Select Committee on Intelligence, knew about it.
There was a very heated debate. Congress passed the FISA Amendments Act of 2008, and that was to replace the warrantless wiretapping program with new authorities for the government to collect the phone calls and e-mails of those believed to be foreigners outside the United States.
The centerpiece of the FISA Amendments Act is a provision that is now section 702 of the FISA statute.
Section 702 is the provision that gave the government new authorities to collect the communications of people who are believed to be foreigners outside the United States. This was different than the original FISA statute. Unlike the traditional FISA authorities and unlike law enforcement wiretapping authorities, section 702 of the FISA Amendments Act does not involve obtaining individual warrants. Instead, it allows the government to get what is called a programmatic warrant. It lasts for an entire year and authorizes the government to collect a potentially large number of phone calls and e-mails, with no requirement that the senders or recipients be connected to terrorism, espionage--the threats we are concerned about.
If that sounds familiar, it certainly should. General warrants that allowed government officials to decide whose privacy to invade were the exact sort of abuse that the American colonists protested over and led the Founding Fathers to adopt the fourth amendment in the first place. For this reason, section 702 of the FISA law contains language that is specifically intended to limit the government's ability to use these new authorities to spy on Americans.
Let me emphasize that because that is crucial to this discussion and the amendments that will be offered. It is never OK--never OK--for government officials to use a general warrant to deliberately invade the privacy of a law-abiding American. It was not OK for constables and Customs officials to do it in colonial days, and it is not OK for the National Security Agency to do it today. So if the government is going to use general warrants to collect people's phone calls and e-mails, it is extremely important to ensure that this authority is only used against foreigners overseas and not against law-abiding Americans.
Despite what the Acting President pro tempore and the Senate may have heard, this law does not actually prohibit the government from collecting Americans' phone calls and e-mails without a warrant. The FISA Amendments Act states--and I wish to quote because there have been a lot of inaccuracies and misrepresentations on this--the FISA Amendments Act states that acquisitions made under section 702 may not ``intentionally target'' a specific American and may not ``intentionally acquire'' communications that are ``known at the time of acquisition'' to be wholly domestic.
But the problem with that is, it still leaves a lot of room for circumstances under which Americans' phone calls and e-mails--including purely domestic phone calls and e-mails--could be swept up and reviewed without a warrant. This can happen if the government did not know someone is American or if the government made a technical error or if the American was talking to a foreigner, even if that conversation was entirely legitimate.
I am not talking about some hypothetical situation. The FISA Court, in response to a concern I and others have had, has already ruled at least once that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. Senate rules regarding classified information prevent me from discussing the details of that ruling or how many Americans were affected, over what period of time, but this fact alone clearly demonstrates the impact of this law on Americans' privacy has been real and it is not hypothetical.
When the Congress passed the FISA Amendments Act 4 years ago, it included an expiration date. The point of the expiration date was to ensure that Congress could review these authorities closely and the Congress could decide whether protections for Americans' privacy are adequate or whether they need to be modified.
Again, go back to what I have described as the constitutional teeter-totter--our job: balance the need of the government to collect information, particularly with respect to what can be threats coming from overseas, with the right of individual Americans to be left alone. It is that balance we are discussing. If the Congress finds it is unbalanced, the Congress has a responsibility to step up and figure out how to make the appropriate changes in the law to ensure that both security and privacy are being protected simultaneously.
Unfortunately, the Congress and the public--the American people--do not currently have enough information to adequately evaluate the impact of the law we are debating on Americans' privacy. There are a host of important issues about the law's impact that intelligence officials have simply refused to answer publicly.
I am going to now spend a few minutes outlining the big questions I believe Americans deserve answers to. Certainly, the Congress has to have answers to these questions in order to do our job--our job of doing robust oversight over this law and over intelligence, which, as I said a bit ago, is exactly what the hard-working men and women in the intelligence community need and deserve in order to do their job in a way that will generate confidence among the American people.
First, if we want to know what kind of impact this law has had on Americans' privacy, we probably want to know roughly how many phone calls and e-mails that are to and from Americans have been swept up by the government under this authority. Senator Mark Udall, our distinguished colleague from Colorado and a great addition to the Intelligence Committee--he and I began the task of trying to ferret out this information some time ago. Over a year and a half ago, Senator Mark Udall and I asked the Director of National Intelligence how many Americans have had their communications collected under this law; in effect, swept up by the government under these authorities.
The response was it is ``not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the'' FISA Amendments Act. That is how the government responded to Senator Udall and me.
If you are a person who does not like the idea of government officials secretly reviewing your phone calls and e-mails, you probably do not find that answer particularly reassuring. But suffice it to say, the situation got worse from there.
In July of this year, I and a tripartisan group of 12 other Senators, including Senator Mark Udall, our colleague from Utah, Senator Mike Lee, Senator Durbin--I am pleased to be joined by Senator Merkley, who has been vital in this coalition, this tripartisan coalition to get the best possible balance between security and liberty--he was a signer of the letter; Senator Paul of Kentucky, who has also been an outspoken advocate of striking a better balance between privacy and liberty was a signer; Senator Coons, Senator Begich, Senator Bingaman, Senator Tester, Senator Sanders, Senator Tom Udall, Senator Cantwell--all of us joined in writing another letter to the Director of National Intelligence asking additional questions about the impact of this law on Americans' privacy.
We asked the Director if he could give us even a rough estimate--just a rough estimate--in other words, there has been discussion both in the press and in the intelligence community: This group of Senators is asking for something impossible. This group of Senators is asking for an exact count of how many Americans are being swept up under this FISA authority, their calls and e-mails reviewed. I wish to emphasize we just said, as a tripartisan group of Senators: We would just like a rough estimate--use any approach they want in terms of giving us an assessment of how many Americans' communications have been swept up in this way. Is it hundreds? Is it hundreds of thousands? Is it millions?
The tripartisan group of Senators basically was just asking for a report, the kind of information that is a prerequisite to doing good oversight. Frankly, I think when we talk about oversight and we cannot even get a rough estimate of how many law-abiding Americans have had their communications swept up under this law, if they do not have that kind of information, oversight--the idea of robust oversight--it ought to be called toothless oversight if they do not have that kind of information.
The Director declined to publicly answer this question. So our tripartisan group and others continued. We asked the Director if anyone else has already done such an estimate. We did not ask about doing anything new. The intelligence community said: Oh, my goodness. It will be so hard to give even a rough estimate. So we said: OK. Just tell us if anyone else has already done such an estimate. The Director declined to publicly answer this question as well.
Right at the heart of this discussion is, if we are serious about doing oversight, the Congress ought to be able to get a straightforward answer to the question: Have any estimates been done already as to whether law-abiding Americans have had their communications swept up under the FISA authority?
Second, if we want to understand this law's impact on Americans' privacy, we probably want to know whether any wholly domestic communications have been collected under the FISA authorities. When we are talking about wholly domestic communications, we are talking about one person in the United States talking to another person who is also in the United States. This law contains a number of safeguards that many people thought would prevent the warrantless collection of wholly domestic U.S. communications, and I think the Congress ought to know whether these safeguards are working.
So our tripartisan group of Senators dug into this issue as well, and we asked the Director back in July if he knew whether any wholly domestic U.S. communications had been collected under the FISA Amendments Act. So here we are talking about wholly domestic communications from one American, for example, in Rhode Island, to another American in the home State of Senator Merkley and myself. I am disappointed to say the Director declined to answer this question as well.
Let's contemplate that for a moment. A tripartisan group of Senators--Democrats, Republicans, Independents--asked if the government knew whether any wholly domestic communications had been collected under the FISA law, and the head of the intelligence community declined to publicly provide a simple yes or no response to that question.
That means the FISA Amendments Act involves the government going to a secret court on a yearly basis and getting programmatic warrants to collect people's phone calls and e-mails, with no requirement that these communications actually belong to people involved with terrorism or espionage. This authority is not supposed to be used against Americans, but, in fact, intelligence officials say they do not even know how many American communications they are actually collecting. The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans' phone calls and e-mails, there are surprisingly few rules about what can be done with it.
For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.
Again, if it sounds familiar, it ought to because that is how I began this discussion, talking about these sorts of general warrants that so upset the colonists. General warrants allowing government officials to deliberately intrude on the privacy of individual Americans at their discretion was, as I have outlined this morning, the abuse that led America's Founding Fathers to rise up against the British. They are exactly what the fourth amendment was written to prevent.
If government officials wanted to search an American's house or read their e-mails or listen to their phone calls, they are supposed to show evidence to a judge and get an individual warrant. But this loophole in the law allowed government officials to make an end run around traditional warrant requirements and conduct backdoor searches for American's communications.
Now, let me be clear. If the government has clear evidence that an American is engaged in terrorism, espionage--serious crimes--I think the government ought to be able to read that person's e-mails and listen to that person's phone calls. I believe and have long felt that is an essential part of protecting public safety. But government officials ought to be required to get a warrant. As the Presiding Officer knows, there are even emergency provisions--and I support these strongly as well--that allow for an emergency authorization before you get the warrant, in order to protect the well-being of the American people.
So what we want to know at this point, if you are trying to decide whether the constitutional teeter-totter is being properly balanced or is out of whack, you want to know whether the government has ever taken advantage of this backdoor search loophole and conducted a warrantless search for the phone calls or e-mails of specific Americans. So when the tripartisan group wrote to the Director of National Intelligence, we asked him to state whether the intelligence community has ever deliberately conducted a warrantless search of this nature. The Director declined to respond to this as well--declined to respond to a tripartisan group of Senators simply asking: Has the intelligence community ever deliberately conducted a warrantless search of this nature?
If anybody is kind of keeping score on this, you will notice that the Director refused to publicly answer any of the questions that were asked in our letter. So if you are looking for reassurance that the law is being carried out in a way that respects the privacy of law-abiding American citizens, you will not find it in his response.
I should note that the Director did provide additional responses in a highly classified attachment to his letter. This attachment was so highly classified that I think of the 13 Senators who signed the letter of the tripartisan group, 11 of those 13 Senators do not even have staff who have the requisite security clearance to read it. So naturally that makes it hard for those Senators, let alone the public, to gain a better understanding of the privacy impact of the law.
Several Senators sent the Director a followup letter last month again urging him to provide public answers to what we felt were straightforward questions--really sort of a minimum set of responses that the Congress needs to do oversight. The Director refused that as well.
Intelligence officials do not deny the facts I have outlined this morning. They still insist they are already protecting innocent Americans' privacy. There is a lot of discussion about how this program is overseen by the secret FISA Court, how the court is charged with ensuring that all of the collections carried out under this program are constitutional.
To respond to those arguments, I would note that under the FISA Amendments Act, the government does not have to get the permission of the FISA Court to read particular e-mails or listen to particular phone calls. The law simply requires the court to review the government's collection and handling procedures on an annual basis. There is no requirement in the law for the court to approve the collection and review of individual communications even if government officials set out to deliberately read the e-mails of an American citizen.
Even when the court reviews the government's collection and handling procedures, it is important to note that the FISA Court's ruling are made entirely in secret. It may seem hard to believe, but the court's rulings that interpret major surveillance law and even the U.S. Constitution in significant ways--these are important judgments--the public has absolutely no idea what the court is actually saying. What that means is that our country is in effect developing a secret body of law so that most Americans have no way of finding out how their laws and their Constitution are being interpreted. That is a big problem. Americans do not expect to know the details of how government agencies collect information, but Americans do expect those agencies to operate within the boundaries of publicly understood law. Americans need and have a right to know how those laws and the Constitution are interpreted so they can ratify the decisions that elected officials make on their behalf. To put it another way, I think we understand that Americans know that intelligence agencies sometimes have to conduct secret operations, but the American people do not expect these agencies to rely on secret law.
I think we understand that the work of the intelligence community is so extraordinarily important. I see the distinguished chair of the committee here. Every member of our committee--every member--feels that it is absolutely critical to protect the sources and methods by which the work of the intelligence community is being done. But we do not expect the public to, in effect, just accept secret law.
When you go to your laptop and you look up a law, it is public. It is public. But what I have described is a growing pattern of secret law that makes it harder for the American people to make judgments about the decisions that are being made by those in the intelligence community. I think that can undermine the confidence the public has in the important work being done by the intelligence community.
If you think back to colonial times, when the British Government was issuing writs of assistance and general warrants, the colonists were at least able to challenge those warrants in open court. So when the courts upheld those writs of assistance, ordinary people could read about the decisions, and people such as James Otis and John Adams could publicly debate whether the law was adequately protecting the privacy of law-abiding individuals. But if the FISA Court were to uphold something like that today, in the age of digital communications and electronic surveillance, it could conceivably pass entirely unnoticed by the public, even by those people whose privacy was being invaded.
Since 2008 other Senators and I have urged the Department of Justice and the intelligence community to establish a regular process for reviewing, redacting, and releasing the opinions of the FISA Court that contain significant interpretation of the law so that members of the public have the opportunity to understand what their government thinks their law and their Constitution actually mean. I am not talking about a need to release every single routine decision made by the court. Obviously, most of the cases that come before the court contain sensitive information about intelligence sources and methods that are appropriate to keep secret.
I do not take a backseat to any Member of this body in terms of protecting the sources and methods of those in the intelligence community doing their important work, but the law itself should never be secret. What Federal courts think the law and the fourth amendment to the Constitution actually mean should never be a secret from the American people, the way it is today.
I am going to wrap up. I see Senator Merkley and Senator Feinstein here. I have a couple of additional points.
I was encouraged in 2009 when the Obama administration wrote to Senator Rockefeller and myself to inform us that they would be setting up a process for redacting and releasing those FISA Court opinions that contained significant interpretations of law. Unfortunately, over 3 years later, this process has produced literally zero results. Not a single redacted opinion or summary of FISA Court rulings has been released. I cannot even tell if the administration still intends to fulfill this promise. I often get the feeling they are hoping people will go away and forget that the promise was made in the first place.
I should note, in fairness, that while the administration has so far failed to fulfill this promise, the intelligence community has sometimes been willing to declassify specific information about the FISA Court's rulings in response to requests from myself and other Senators. For example, in response to a request I made this past summer, the intelligence community acknowledged that on at least one occasion--this was an acknowledgement from the intelligence community. The intelligence community acknowledged that at least on one occasion, the FISA Court had ruled that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. I think that is an important point to remember when you hear people saying the law is adequately protecting Americans' privacy.
I would also note that on this point, partially declassified internal reviews of the FISA amendments collection act have noted that certain types of compliance issues continue to occur--continue to occur.
I have two last points. Beyond the fact that the programmatic warrants authorized by the FISA Amendments Act are approved by a secret court, the other thing that intelligence officials cite is that there are ``minimization'' procedures to deal with the issues that those of us who are concerned about privacy rights have raised. This is an odd term, but it simply refers to rules for dealing with information about Americans.
Intelligence officials will tell you that these are pretty much taking care of everything, and if there are not enough privacy protections in the law itself, minimization procedures provide all of the privacy protections any reasonable person could ever want or need. These minimization procedures are classified, so most people are never going to know what they say. As someone who has access to the minimization procedures, I will make it clear that I think they are certainly better than nothing, but there is no way, colleagues, these minimization procedures ought to be a substitute for having strong privacy protections written into the law.
I will close with the reason I feel so strongly about this, which is that senior intelligence officials have sometimes described these handling procedures in misleading ways and make protections for Americans' privacy sound stronger than they actually are. I was particularly disappointed when the Director of NSA did this recently at a large technology conference.
In response to a question about the National Security Agency's surveillance of Americans, General Alexander referenced the FISA Amendments Act and talked in particular about the minimization procedures that applied to the collection of U.S. communications. Understand that this was at a big, open technology conference. General Alexander said that when the NSA sweeps up communications from a ``good guy,'' which I think we all assume is a law-abiding American, the NSA has ``requirements from the FISA court and the Attorney General to minimize that, which means nobody else can see it unless there is a crime that is being committed.'' Now, anybody who hears that phrase says: That is pretty good. I imagine that is what people in that technology meeting and the conference call wanted to hear. The only problem is that it is not true. It is not true at all. The privacy protections provided by these minimization procedures are simply not as strong as General Alexander made them out to be.
In October, a few months after General Alexander made the comments, Senator Udall and I wrote him a letter asking him to please correct the record. The first paragraphs of the letter were:
Dear General Alexander:
You spoke recently at a technology convention in Nevada, at which you were asked a question about NSA collection of information about American citizens. In your response, you focused in particular on section 702 of the FISA Amendments Act of 2008, which the Senate will debate later this year. In describing the NSA's collection of communications under the FISA Amendments Act, you discussed rules for handling the communications of U.S. persons.
General Alexander said:
We may, incidentally, in targeting a bad guy hit on somebody [sic] from a good guy, because there's a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there's a crime that's been committed.
Senator Udall and I wrote:
We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA's FISA Amendments Act collection, and portrayed privacy protections for Americans' communications as being stronger than they actually are. We urge you to correct this statement, so that Congress and the public can have a debate over the renewal of this law that is informed by at least some accurate information about the impact it has had on Americans' privacy.
General Alexander wrote us back a few weeks later and said that, of course, that is not exactly how minimization procedures work and, of course, the privacy protections aren't as strong as that.
If anyone would like to read his letter, I put it up on my Web site. I don't know why General Alexander described the minimization procedures the way he did. It is possible he misspoke. It is possible he was mistaken. But I certainly would be more sympathetic to these arguments that all these privacy protections are being taken care of if it hadn't taken Senator Udall and I making a push to get the NSA to correct the record with respect to these minimization procedures. Frankly, I am not sure, if there hadn't been a big push by Senators who had questions about what was said at that technology conference, I am not sure the NSA would have ever corrected what they originally said about minimization.
So minimization procedures are not a bad idea, but the suggestion that we don't need privacy protections written into the law because of them is a bad idea.
Finally, at that conference, General Alexander stated: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.''
I have been on the Senate Intelligence Committee for 12 years, and I don't know what the term ``dossier'' means in that context.
So in October, Senator Udall, a member of the committee, and I asked the Director to clarify that statement. We asked:
Does the NSA collect any type of data at all on `millions or hundreds of millions of Americans'?
I think that is a pretty straightforward question. If we are asking whether the NSA is doing a good job protecting Americans' privacy, it is one of the most basic questions of all. If General Alexander saw fit, and he was the one who said they don't keep millions of dossiers, General Alexander could have answered our question about whether they were keeping these dossiers with a simple yes or no.
Instead, the Director of the NSA replied that while he appreciated our desire to have responses to the questions on the public record, he would not provide a public answer.
Again, the Director of the NSA said: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.''
So two members of the committee asked: ``Does the NSA collect any type of data at all on `millions or hundreds of millions of Americans,' '' and the Director refused to respond.
At this point, I close by way of saying I believe the FISA Amendments Act has enabled the government to collect useful intelligence information, and my goal is to reform the legislation. The two specific things I want to do are, first, require the intelligence community to provide more information about the impact of the FISA Amendments Act on Americans' privacy and, second, to make improvements to privacy protections so we can readily see where they are most needed.
So there will be several amendments that will be offered. The amendment I will be offering is sponsored by 15 Members of the Senate. It simply says the Director of the National Intelligence Agency should submit a report to the Congress on the privacy impact of the FISA Amendments Act.
This amendment would require the report to state whether any estimate has been done, how many U.S. communications have been collected under the authority, and to provide any estimates that exist. I wish to emphasize this amendment would not require any entity to actually conduct such an estimate. The Director would be required only to provide any estimates that have already been done and, if no estimates exist, the Director could say so.
Additionally, the amendment would require the report to state whether any wholly domestic communications have been collected under the FISA Amendments Act and whether any government agencies have ever conducted any warrantless, backdoor searches. These are straightforward questions, and they are obviously relevant to understanding the scope of the law's impact on privacy.
The report would address General Alexander's confusing statements by requiring the intelligence community to simply state whether the NSA has collected any personally identifiable data on more than 1 million Americans. The Congress and the country deserve an answer to this question as well.
The amendment does not force the declassification of any information. The amendment gives the President full discretion to redact as much information from the public version of the report as he deems appropriate, as long as he tells the Congress why.
To repeat, the amendment doesn't require the intelligence community to conduct a new estimate, and the
President would have full discretion to decide whether any information should be made public.
I offer this amendment because I believe every Member of Congress ought to have the answers to these questions. If your constituents are similar to mine and Senator Merkley's, they expect us to give government agencies the authority to protect our country and to gather intelligence on important topics, but they also expect us to conduct vigorous oversight on what those agencies are doing.
It is, I guess, a temptation to say: I don't know what is going on, so I will let somebody else look at the privacy issues and go from there. I don't think that is good oversight.
To me, at a minimum, if we don't pass a requirement that we get a rough accounting of whether there has even been an estimate done with respect to how many law-abiding Americans have been swept up under these FISA authorities, my view is that oversight becomes toothless, and that is not what our obligation over these issues is all about.
There will be other important amendments as well. Senator Merkley has one that I think is particularly important because it goes to this question of secret laws. Senator Leahy seeks to promote additional accountability as well with his important amendment. My colleague Senator Paul will be offering an amendment, an important amendment as well, with respect to reasonable searches and seizures under the fourth amendment.
We obviously have crucial work to do with respect to the fiscal cliff issue in the next few days. We talked earlier when the majority leader was here about the impact of the budget and taxes, senior citizens not being able to see doctors. It is crucial work, and I continue to be part of that optimists caucus in the Senate, believing we can still find some common ground in these last few days on the fiscal cliff and avoid going over the fiscal cliff.
That is crucial work, but striking the right balance between protecting our country and protecting our individual liberties is also important work. For that reason, I wanted to walk through the history of the FISA Amendments Act this morning, describe why it was so important, particularly for us to get even an accounting.
Remember, this doesn't disrupt any operations in the intelligence community. This is just an accounting of how many law-abiding Americans had their communications swept up under this law. That work is crucial too.
For that reason, I hope that on a bipartisan basis, the amendments will be viewed favorably by the Senate when we begin voting. Thank you for your indulgence for being part of this discussion, presiding in the chair, and with special thanks to the distinguished majority leader who gave me the opportunity to open this discussion about FISA this morning.
I yield the floor.
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Mr. WYDEN. I thank the Chair. I will speak out of our time in order to respond to a couple points. I also wish to commend my colleague Senator Merkley from Oregon for his excellent statement. He has been doing yeoman's work in terms of trying to promote accountability and transparency on this issue and the work he has done in the Senate. I am going to correct a couple of misconceptions about what has been said and also talk on behalf of the good work Senator Merkley is doing.
With respect to this amendment I will be offering, I believe the Senate cannot say we passed the smell test with respect to doing vigorous oversight if we don't have some sense of how many Americans in our country who are communicating with each other are being swept up under this legislation. For purposes of the FISA Amendments Act, I think we ought to know, generally, how many Americans are being swept up under the legislation. Oversight essentially would be toothless without this kind of information.
I wish to correct one misconception with respect to where we are on the language in the reporting amendment. The distinguished chair of the committee urged Senators to visit the offices of the Senate Select Committee on Intelligence to see the documents the chair has stated relate to intelligence officials who say it is impossible for them to estimate the number of law-abiding Americans who have had their communications swept up under the legislation. However, the fact is that when colleagues read the amendment I will be offering, they will see I am not requiring anyone to take on a new task of preparing an estimate of how many law-abiding Americans have been swept up in it. This is simply a request to the intelligence community, which states that if any estimate has already been done, that estimate ought to be provided.
When the distinguished chair of the committee says Senators should go over to the committee's offices and look at the documents which state that the intelligence community cannot do a new estimate, I want Senators to know the language of my amendment does not ask for a new estimate. In no way does it ask for a new estimate. It simply says: If an estimate has been done, that estimate ought to be furnished. If no estimate has been done, the answer to that is simply no. We will be very clear about it, and the matter will have been clarified. If no estimate has been done, then fine; the answer is no.
As I indicated earlier, the amendment also requires the intelligence community to state whether any wholly domestic communications have been collected. That again can be answered with a yes or no. Finally, it requires a response as to whether the National Security Agency has collected personal information on millions of Americans, and that too is a very straightforward answer.
I think when we talk about this kind of information, we ought to come back to the fact that no sources and methods in the intelligence community would be compromised. In no way would the operations or the important work of the intelligence community be interrupted. What it would simply do is provide us with what I think are the basics that this Senate needs to be able to say it is doing real oversight over a very broad area of surveillance law.
I hope Senators will ask themselves as we look at this: Do we in the Senate know whether anyone has ever estimated how many U.S. phone calls and e-mails have been warrantless collected under the statute? Does the Senate know whether any wholly domestic phone calls or e-mails have been collected under this statute? Does the Senate know whether the government has ever conducted any warrantless, backdoor searches for Americans' communication? If not, this is the Senate's chance to answer that question.
When our constituents come forward and ask us whether the government is protecting our privacy rights as we protect our security, the question is: How does the Senator look their constituents in the eye and tell them they don't know and are not in a position to get information that is essential to pass the smell test when it comes to this body doing basic oversight over what is certainly a broad and, for many Americans, rather controversial surveillance law.
I assume--because we have already heard some characterizations of my amendment, which are simply and factually incorrect--that we will have other responses to the reporting amendment in terms of objections. I have already stated my first concern: The intelligence community stating that they cannot estimate how many Americans' communications are collected under key section 702 of FISA. Again, my response is that when Senators look at the text of the amendment, it does not require anybody to do an estimate. It simply says that if estimates do exist, they ought to be provided to the Congress. When it comes to our oversight responsibilities, I do not think that request is excessive or unreasonable.
Second, I think we will hear the House and Senate Intelligence Committees already do oversight of FISA. Every Member of the Congress has to vote on whether to renew the FISA Amendments Act. Frankly, I think every Member of this body ought to be able to get a basic understanding of how the law actually works, and that is not available today.
Next, we will hear that the intelligence community has already provided the Congress with lots of information about the FISA Amendments Act. As the Presiding Officer knows from his service on the committee, much of that information is in highly classified documents that are difficult for most Members to review. The reality is most Members literally have no staff who have the requisite security clearance in order to read them.
The amendment I am talking about with respect to basic information on the number of Americans who have had their communications swept up under FISA--whether Americans with respect to wholly domestic communications have been swept up under this law--in my view that information ought to be available to this body in documents Members can actually access. Frankly, it ought to be available in a single document which Members can access.
In connection with the discussion about these issues, we will also hear the answers to these questions should not be made public. The amendment I am going to be offering with respect to getting a rough set of estimates as to how many Americans are being swept up under these authorities--and whether an estimate actually even exists--gives the President full authority to redact whatever information he wishes from the public version of the report. Under the amendment I am pursuing, the executive branch would have full discretion to decide whether it is appropriate to make any of this information public.
As we ensure more transparency and more accountability with respect to this information and access to it, no sources or methods which have to be protected--including important work the intelligence committee is doing--will be compromised in any way. The last word on this subject is the call of the President of the United States, who has the full discretion to decide whether it is appropriate to make any of this information public.
Finally, we are undoubtedly going to hear that the law is about to expire and amendments will slow it down. First of all, I think many of us would rather have had this debate earlier in this session of the Senate, and had there been more dialog on many of these issues, that would have been possible. We are where we are, and I think all of us understand that. We understand this is a huge challenge. The fiscal cliff is vital in terms of our work this week, but I continue to believe the other body is perfectly capable of passing this legislation before the end of the year.
The amendments that are being offered all go to the issue of transparency and accountability. Not one of those amendments would jeopardize the ongoing issues and operations which relate to the sources and methods of the intelligence community. The Congress can make amendments to improve oversight and still keep this law from expiring.
With respect to the reporting amendment, I hope the argument made by the distinguished chair of the committee that the intelligence community has said they cannot estimate how many Americans' communications have been collected under section 702--that Senators go to the offices of the Intelligence Committee. When colleagues look at the text of the amendment, the amendment does something different than the issue which has been raised by the distinguished chair of the committee.
The amendment does not require anyone to do an estimate. It simply says that if an estimate already exists, that estimate ought to be provided to the Congress.
Let me also make some brief remarks on this issue of secret law that touches on the point raised by my colleague from Oregon Senator Merkley, who I think has given a very good presentation on the floor and has a very good amendment. When the laws are interpreted in secret, the results frequently fail to stand up to public scrutiny. We have talked about this on the floor and in the committee and it isn't that surprising when we think about it. The law-making process in our country is often cumbersome, it is often frustrating, and it is often contentious. But over the long run I think we know this process is the envy of the world because it gives us a chance to have a real debate, generate support of most Americans because then people see, when they have had a chance to be a part of a discussion, that they are empowered in our system of government. On the other hand, when laws are secretly interpreted behind closed doors by a small number of government officials without public scrutiny or debate, we are much more likely to end up with interpretations of the law that go well beyond the boundaries of what the public accepts or supports. So let's be clear that when we are talking about public scrutiny and having debates, that is what allows the American people to see that those of us who are honored to serve them are following their will.
Sometimes it is entirely legitimate for government agencies to keep certain information secret. In a democratic society, of course, citizens rightly expect their government will not arbitrarily keep information from them, and throughout our history our people have guarded their right to know. But I think we also know our constituents acknowledge certain limited exceptions exist in this principle of openness. For example, most Americans acknowledge that tax collectors need to have access to some financial information, but the government does not have the right to share this information openly. So we strike the appropriate balance on a whole host of these issues on a regular basis.
Another limited exception exists for the protection of national security. The U.S. Government has the inherent responsibility to protect its citizens from threats, and it can do this most effectively if it is sometimes allowed to operate in secrecy. I don't expect our generals to publicly discuss the details of every troop movement in Afghanistan any more than Americans expected George Washington to publish his strategy for the Battle of Yorktown. By the same token, American citizens recognize their government may sometimes rely on secret intelligence collection methods in order to ensure national security, ensure public safety, and they recognize these methods often are more effective when the details--what are the operations and methods as we characterize them under intelligence principles--remain secret. But while Americans recognize government agencies will sometimes rely on secret sources and methods to collect intelligence information, Americans expect these agencies will at all times operate within the boundaries of publicly understood law.
I have had the honor to serve on the Intelligence Committee now for over a decade. I don't take a backseat to anyone when it comes to the importance of protecting genuine, sensitive details about the work being done in the intelligence community, particularly their sources and methods. However, the law itself should never be secret. The law itself should never be secret because voters have a right to know what the law says and what their government thinks the text of the law means so they can make a judgment about whether the law has been appropriately written, and they can then ratify or reject the decisions elected officials make on their behalf.
When it comes to most government functions, the public can directly observe the functions of government and the typical citizen can decide for himself or herself whether they support or agree with the things their government is doing. American citizens can visit our national forests--we take particular pride in them in our part of the country--and decide for themselves whether the forests are being appropriately managed. When our citizens drive on the interstate, they can decide for themselves whether those highways have been properly laid out and adequately maintained. If they see an individual is being punished, they can make judgments for themselves whether that sentence is too harsh or too lenient, but they generally can't decide for themselves whether intelligence agencies are operating within the law. That is why, as the U.S. intelligence community evolved over the past several decades, the Congress has set up a number of watchdog and oversight mechanisms to ensure intelligence agencies follow the law rather than violate it. That is why both the House and the Senate have Select Intelligence Committees. It is also why the Congress created the Foreign Intelligence Surveillance Court, and it is why the Congress created a number of statutory inspectors general to act as independent watchdogs inside the intelligence agencies themselves. All these oversight entities--one of which I am proud to serve on, the Senate Select Committee on Intelligence--all of them were created, at least in part, to ensure intelligence agencies carry out all their activities within the boundaries of publicly understood law.
But I come back to my reason for bringing up this issue this afternoon. The law itself always ought to be public and government officials must not be allowed to fall into the trap of secretly reinterpreting the law in a way that creates a gap between what the public thinks the law says and what the government is secretly claiming the law says. Any time that is being done, it first violates the public trust, and, second, I have long felt that allowing this kind of gap--a gap between the government's secret interpretation of the law and what the public thinks the law is--undermines the confidence our people are going to have in government. Also, by the way, it is pretty shortsighted because history shows the secret interpretations of the law are not likely to stay secret forever, and when the public eventually finds out government agencies are rewriting these surveillance laws in secret, the result is invariably a backlash and an erosion of confidence in these important government intelligence agencies and the important work, as I noted this morning, our intelligence officials are doing.
So this is a big problem. Our intelligence and national security agencies are staffed by exceptionally hard-working and talented men and women, and the work they do is extraordinarily important. If the public loses confidence in these agencies, it doesn't just undercut morale, it makes it harder for these agencies to do their jobs. If we ask the head of any intelligence agency, particularly an agency that is involved in domestic surveillance in any way, he or she will tell us that public trust is a vital commodity and voluntary cooperation from law-abiding Americans is critical to the effectiveness of their agencies. If members of the public lose confidence in these government agencies because they think government officials are rewriting surveillance laws in secret, those agencies are going to be less effective. I don't want to see that happen. On my watch, I don't want to be a part of anything that makes our intelligence agencies less effective.
Officials at these government agencies do not get up in the morning to do their work with malicious intent. They work very hard to protect intelligence sources and methods for good reasons. Sometimes what happens is people lose sight of the difference between protecting sources and methods, which ought to be kept secret, and the law itself, which should not be kept secret. Sometimes they even go so far as to argue that keeping the interpretation of the law secret is actually necessary because it prevents our Nation's adversaries from figuring out what our intelligence agencies are allowed to do. My own view is this is ``Alice in Wonderland'' logic, but if the U.S. Government were to actually adopt it, then all our surveillance laws would be kept secret because that would, I guess one could argue, be even more useful. When Congress passed the Foreign Intelligence Surveillance Act in 1978, it would have been useful to keep the law secret from the KGB so Soviet agents wouldn't know whether the FBI was allowed to track them down. But American laws and the American Constitution shouldn't be public only when government officials think it is convenient. They ought to be public all the time. Americans ought to be able to find out what their government thinks those laws mean, and I think it is possible to do that while still ensuring that sensitive information--information about sources and methods and the operations of the intelligence community--is appropriately kept secret.
My own view is the executive branch in the United States has so far failed to live up to their promises of greater transparency in this area, greater commitment to ensuring the public sees how our laws are being interpreted. As long as there is a gap between the way the government interprets these laws and what the public sees when people are sitting at home and looking it up on their laptops, I am going to do everything I can to reduce that gap and to ensure our citizens, consistent with our national security, have additional information with respect to how our laws are interpreted. We can do that while at the same time protecting the critical work being done by officials in the intelligence community.
With that, I am happy to yield to the distinguished chairwoman.
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Mr. WYDEN. Mr. President, just to respond to the points made by the distinguished chair of the committee--and, by the way, I think the chair's reference to being willing in the next intelligence authorization bill to work with those of us--and Senator Merkley has made good points this afternoon to try to include language in the next intelligence authorization bill to deal with secret law--I think that would be very constructive. I appreciate the chair making that suggestion.
Colleagues may know that under the leadership of the chair of the committee and the distinguished Senator from Georgia, the vice chair of the committee, Mr. Chambliss, we were able, late last week, to work out the disagreements with respect to the intelligence authorization bill this year. I wish to thank the chair for those efforts. I think we have a good bill. I think all of us are against leaks. That is what was at issue. I think we have now dealt with the issue in a fashion so as to protect the first amendment and the public's right to know, and I appreciate the chair working with this Senator on it.
I think we have a good intelligence authorization bill now for this year. I think the chair's suggestion that we look at dealing with this issue of secret law--in addition, I hope, to adopting the Merkley amendment--that we deal with it in the next intelligence authorization bill is constructive. I do want to respond to one point on the merits with respect to comments made by the distinguished chair on this issue.
The distinguished chair of the committee essentially said the law is public because the text of the statute is public. That is true. That is not in dispute. It is true that the text of the law is public. But the secret interpretations of that law and the fourth amendment from the FISA Court are not public. The administration pledged 3 years ago to do something about that. They pledged it in writing in various kinds of communications, and that still has not been done. That is why this is an important issue with respect to transparency and accountability.
The distinguished chair of the committee is absolutely correct that the law is public. The text of the law is public. Nobody disputes that. But the secret interpretations of the law and the fourth amendment--the interpretations of the FISA Court are not public, and we have received pledges now for years that this would change.
I remember--perhaps before the distinguished chair of the committee was in the Chamber--talking about how Senator Rockefeller and I got a letter indicating that this was going to be changed and that we were very hopeful we were going to again get more information with respect to legal interpretations, matters that ought to be public that do not threaten sources and methods and operations. We still have not gotten that. That is the reason why Senator Merkley's work is so important.
I see my friend and colleague. I say to Senator Merkley, the distinguished chair of the committee has made the point--I think while the Senator had to be out of the Chamber--that the law is public because the text of it is public. But what the Senator has so eloquently described as being our concern is that the opinions of the FISA Court--their opinions and views about the fourth amendment--are what has been secret, and the administration has said for years now they would do something about it.
So the Senator's amendment seeks to give this the strongest possible push. I think that is why the Senator's amendment is so important. The Senator is obviously making a lot of headway because the distinguished chair of the committee has also said this issue of secret law is something that can be addressed as well in the intelligence authorization bill.
If we can adopt the Senator's amendment and then move on to the intelligence authorization bill, that will be a very constructive way to proceed, very much in the public interest. The Senator is obviously making headway.
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Mr. WYDEN. I thank my colleague. He is making an important point. I have sat next to Senator Feinstein in the Intelligence Committee now for 12 years, and I think all of us--and we have had chairs on both sides of the aisle--understand how important the work of the intelligence community is. This is what prevents so many threats to our country from actually becoming realities--tragic realities.
What my friend and colleague from Oregon has hammered home this afternoon is that if a law is secret and there is a big gap between the secret interpretation of a law and what the public thinks the law means--my friend and I represent people who, for example, could be using their laptop at home in Coos Bay. If they look up a law and they see what the public interpretation is and they later find out that the public interpretation is real different than what the government secretly says it is, when people learn that, they are going to be very unhappy.
I see my colleague would like some additional time to address this issue. I am happy to yield to him.
Mr. MERKLEY. I thank Senator Wyden.
The Senator mentioned an Oregonian sitting in Coos Bay working on his or her laptop and calling the Senator's office and saying: Hey, the law says the government can collect tangible material related to an investigation. Does that mean they can collect all of my Web conversations--knowing that the Web circuits travel around the world multiple times and at some point they travel through a foreign space. They ask this question in all sincerity because they care about the fourth amendment and their privacy.
How much ability do we have to give them a definitive answer on that?
Mr. WYDEN. Absent the information we are seeking to get under the amendment I am going to offer, I do not think it is possible for a Senator to respond to the question.
The issue for an individual Senator would be: Do you know whether anyone has ever estimated how many U.S. phone calls and e-mails have been warrantlessly collected under the statute? Do you know whether any wholly domestic phone calls and e-mails have been collected under this statute, which I believe is the exact question my colleague from Oregon has asked.
I do not believe a Member of the Senate can answer that question. Being unable to answer that question means that oversight, which is so often trumpeted on both sides of the aisle, is toothless when it comes to the specifics.
I hope that responds to my colleague's question.
Mr. MERKLEY. Absolutely. I think about other questions our constituents might ask. They might ask if our spy agencies are collecting vast data from around the world and they become interested in an American citizen, can they search all that data without getting a warrant--a warrant that is very specific to probable cause and an affirmation.
Again, I suspect the answer we could give to the citizen would be that we cannot give a very precise evaluation of that, not knowing how the concept of information related to an investigation has been interpreted and laid out.
Mr. WYDEN. My colleague is asking a particularly important question because the Director of the National Security Agency, General Alexander, recently spoke at a large technology conference, and he said that with respect to communications from a good guy, which we obviously interpret as a law-abiding American, and someone overseas, the NSA has ``requirements from the FISA Court and the Attorney General to minimize that''--to find procedures to protect the individual, the law-abiding American's rights, essentially meaning, in the words of General Alexander, ``nobody else can see it unless there's a crime that's been committed.''
If people hear that answer to my colleague's question--which, frankly, General Alexander responded to directly--they pretty much say that is what they were hoping to hear; that nobody is going to get access to their communications unless a crime has been committed.
The only problem, I would say to my friend, is Senator Udall and I have found out that is not true. It is simply not true. The privacy protections provided by this minimization approach are not as strong as General Alexander made them out to be. Senator Udall and I wrote to General Alexander, and he said--and I put this up on my Web site so all Americans can see the response--the general said: That is not really how the minimization procedures work--these minimization procedures that have been described in such a glowing way--and that the privacy protections are not as strong as we have been led to believe. He may have misspoken and may have just been mistaken, but I am not sure the record would be correct even now had not Senator Udall and I tried to make an effort to follow it up.
I can tell the Senator that at this very large technology conference--this was not something that was classified--at a very large technology conference recently in Nevada, what the head of the National Security Agency said was taking place with respect to protecting people, in response to my colleague's questions: Were their e-mails and phone calls protected, the general said to a big group: They are, unless a crime has been committed. The real answer is that is not correct.
Mr. MERKLEY. I thank my colleague from Oregon for being so deeply invested in the details of this over many years, utilizing a fierce advocacy in support of the fourth amendment and privacy to bring to these debates. I also thank the chair of the Intelligence Committee for her comments earlier today about secret laws and her own concerns about that and her willingness to help to work to have the administration provide the type of information that clarifies how these secret opinions interpret statutes. My thanks go to the Senator from California, Mrs. Feinstein.
The PRESIDING OFFICER (Mrs. McCaskill.) The Senator from Oregon.
Mr. WYDEN. I thank my friend. Just one last point with respect to this technology conference where so many people walked away and thought their privacy was being protected by strong legal protections. General Alexander made additional confusing remarks that were in response to that same question with respect to the protections of law-abiding people.
General Alexander said, `` ..... the story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.''
Now, I have indicated this morning as well, having served on the Intelligence Committee for a long time, I do not have the faintest idea of what anybody is talking about with respect to a dossier. So Senator Udall and I followed that up as well. We asked the Director to clarify that statement. We asked, ``Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?'' So that, too, is a pretty straightforward question.
The question Senators have been asking about this are not very complicated. If you are asking whether the National Security Agency is addressing these privacy issues, I think it is one of the most basic questions you can ask. Does the National Security Agency collect any type of data at all on millions or hundreds of millions of Americans? If the Agency saw fit, they could simply answer that with a yes or no. Instead, the Director of the Agency replied that while he appreciated our desire to have responses to those questions on the public record, there would not be a public response forthcoming.
So to go over the exchange again, the Director of National Security Agency states that `` ..... the story that we have millions or hundreds of millions of dossiers on people is absolutely false.'' Senator Udall and I then asked: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans? The Agency is unwilling to answer the question.
So that is what this debate is all about, is reforming the FISA Amendments Act and, in particular, getting enough information so that it is possible for the Senate to say to our constituents: We are doing oversight over this program.
I think right now, based on what we have outlined over the last 3 or more hours, it is clear that on so many of the central questions--the gap, for example, between the secret interpretation of the law and the public interpretation of the law, our inability to find out whether Americans in their wholly domestic communications have had their rights violated, how many law-abiding Americans have had their e-mails and phone calls swept up under FISA authorities, responses to these questions that stem from public remarks made by intelligence officials at public conferences--the inability to get answers to these questions means that this Senate cannot conduct the vigorous oversight that is our charge.
I expect we will have colleagues coming in. With the weather, it is a special challenge to get here from our part of the country.
I have a parliamentary inquiry. The distinguished chair of the committee already, I believe, got unanimous consent that the time in quorum calls be allocated to both sides. That was my understanding. Is that correct?
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Mr. WYDEN. Mr. President, first, I strongly support your amendment, given how little most Members of Congress know about the actual impact of the law. The shorter extension period as envisioned by the distinguished chairman of the Judiciary Committee makes a lot of sense. I also think it makes sense to have the intelligence community inspector general conduct an audit on how FISA Amendment Act authority has been used.
Once again, we have had this discussion about how much everybody already knows about how the FISA Amendments Act affects the operations of this program on law-abiding Americans. I would have to respectfully disagree. I asked Senators, as we touched on this in the course of the afternoon, whether they know if anyone has ever estimated how many U.S. phone calls and e-mails have been warrantlessly collected under this statute?
Senator Udall and I have asked this very simple question: Has there been an estimate--not whether there is going to be new work, whether they are going to be difficult assignments. We have asked whether there has ever been an estimate of how many U.S. phone calls have been warrantlessly collected under the statute. We were told in writing we were not going to be able to get that information.
I think Senators ought to also ask themselves whether they know if any domestic phone calls and e-mails, what are wholly domestic communications, have been conducted under this statute. I think they will also find they do not know the answer to this question. I think Senators also would want to know whether the Government has ever conducted any warrantless backdoor searches for Americans' communications.
So when we have the argument that has now been advanced several times in the course of the day that we already know so much, we do not need all these amendments, it is just going to delay passage of the legislation, I urge people--go to my Web site, in particular--to look at what we have learned from the intelligence community, which is the response to request after request, particularly requests of a tripartisan group of Senators asking yes or no questions: Has there been an estimate? For example, how many law abiding Americans have had their communications swept up into these FISA authorities? Our inability to get that answer makes it clear that when one talks about robust oversight under this legislation, the reality is that there is enormous lack of specifics with respect to how this legislation actually works.
I would only say in response to the amendment offered by the Presiding Officer, Senator Leahy, the chairman of the Judiciary Committee, I think his amendment is very appropriate. Given how little is known, to me it is one of the fundamental pillars of good oversight that we do not grant open-ended kind of authorizations when we lack so much fundamental information about how this program works, particularly how it would affect law-abiding Americans.
With that, I yield back.
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