USA Freedom Act of 2015

Floor Speech

Mr. BLUMENTHAL. I thank the Chair.

Mr. President, I am very grateful for the opportunity to follow my
distinguished colleague from Vermont and to emphasize some of the
points that he has just made. But first let me thank Senator Wyden for
his leadership and his courage on this issue of foreign intelligence
surveillance reform. He has helped to lead this effort, long before I
was in the Senate, in favor of more transparency and accountability.
Those are among the overarching objectives here.

My colleague from Vermont, who shares with me a background as a
prosecutor, rightly makes a point that warrants and other means of
surveillance when prosecutors seek them are sought
ultimately from judges. I want to speak to some of the myths and
misconceptions here that endanger this key reform.

Our colleague from Texas, whom I greatly respect, has argued that the
FISA Court is like a grand jury. In fact, he has said that an amicus
should not be appointed, in effect, to intervene with a body that is
like a grand jury. Well, the Foreign Intelligence Surveillance Court is
not a grand jury, as my colleague from Oregon has said very well. The
FISA Court makes law. It interprets the law in ways that are binding as
legal precedents. Far from being like a grand jury, as a truly
investigative tool of the court, the Foreign Intelligence Surveillance
Court is a court. In fact, it is composed of article III judges who do
as they do on their own district courts or appellate courts; that is,
they interpret law and thereby, in effect, make law.

To keep that law secret is a disservice to the American people and to
our legal system. To have only one side represented skews and, in
effect, impedes the operations of that court because we know that
judges make better decisions when they hear both sides and rights are
better protected. Even so, the FISA Court needs to hear from that
amicus panel only when it chooses to do so, ultimately.

It has the discretion under the statute, as it exists now, to decide
to appoint an amicus in any particular matter. It is required to
appoint an amicus in novel or significant cases unless--and the word
``unless'' is in the statute--it issues a finding that the appointment
is not appropriate. It can make that finding whenever it wishes to do
so. So the discretion is for the FISA Court in whether to hear from an
amicus, even under the bill that the USA FREEDOM Act is now. It can
permit the amicus to address privacy, technology or any other area
relevant to the matter before the court--not just constitutional
rights. And that leads to the second misinterpretation, if I may say
so, in the remarks made by my colleague from Texas.

The bill does not direct an amicus to oppose intelligence activity or
to oppose the government's view or position. In fact, it is to
enlighten the court. In some instances it may oppose the government,
but it is as part of that process of constructively arriving at the
correct legal interpretation--not as a kind of knee-jerk reaction to
oppose the government.

Again, I stress, a novel or significant issue in the discretion of
the court may be addressed by the amicus. What the amendment does is to
deprive the amicus or expert panel of the access it needs to facts and
law to be the best that it can be in interpreting, arguing, and
protecting rights. It, in effect, bars access to past precedents of the
court, to briefings from intelligence experts, to facts that may be
known to the Department of Justice or intelligence agencies. That
hampering and hobbling of the amicus in no way serves the cause of
justice. It in no way serves the cause of intelligent intelligence
activities--in fact, it undermines that activity.

It undermines trust and confidence in the court. This court has
operated in secret. It has heard arguments in secret. It has issued
opinions in secret. It is the kind of court our Founders would have
found an anathema to their vision of democracy and freedom. We may need
such a court now to authorize surveillance activities that must be kept
secret, but we need to strike a balance that protects very precious
constitutional rights and liberties.

After all, what does our surveillance and intelligence system protect
if not these fundamental values and rights of privacy and liberties
that have lasted and served us well because we respect them?

More than a physical structure that we seek to protect through this
system, it is those values and rights that are fundamentally paramount
and important. So this FISA Court reform goes to the core of the
changes--constructive changes that we seek to make. I hope my
colleagues will defeat amendment 1451, along with all of the other
amendments, because the practical effect of adopting amendments is it
further delays implementation of the USA FREEDOM Act at a time when our
country may be at risk from the expiration of the PATRIOT Act. We
cannot afford for this country----

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Mr. BLUMENTHAL. I am happy for that very pertinent and important
question from my colleague from Oregon. In fact, the majority leader's
amendments would not only scale back and roll back the protections for
the American people in the event of exigent or urgent situations, they
would also undermine the confidence and trust of the American people in
this system to protect the homeland.

Delaying these kinds of reforms undermines the goal of protecting our
national security as well as preserving our fundamental constitutional
rights. Delay is an enemy here. Uncertainty is an adversary. We owe it
to the American people not only to restore their trust and confidence
and sustain the faith of the American people in the intelligence
agencies but also to make it more transparent, where it can be made so
without compromising security and increasing accountability.

That is what the FISA Court reforms do. That is why the Director of
National Intelligence as well as the Attorney General, the Privacy and
Civil Liberties Oversight Board, the President's Review Group, at least
two former FISA Court judges, civil rights advocates, and
representatives of many of the most informed and able in our
intelligence community all support these reforms.

The Director of National Intelligence and the Attorney General said
in 2014, ``The appointment of an amicus in selected cases as
appropriate need not interfere with the important aspects of the FISA
process, including the process of ex parte consultation between the
court and the government.''

Ex parte communication, in effect, secret conversation or
consultation, can continue to go forward under this bill. The amendment
would not alter that fact. The amendment simply makes the amicus less
effective by depriving that amicus of access to facts and law that are
necessary to do its job. So, in my view, these amendments fundamentally
undermine the purpose of reforms that a vast bipartisan majority of
this body has already approved today. It is an increasingly large
margin that has voted for these reforms, recognizing
what I hear from Connecticut, what my colleagues
hear in their States; that people want to believe the Foreign
Intelligence Surveillance Court is, in fact, operating as a court,
hearing both sides, keeping secrets but at the same time increasing
public access to facts and laws that are important to them without
compromising our national security.

I hope my colleagues will vote to reject these amendments. As the
Senator from Oregon has said, adopting them will simply serve to delay
reforms that are necessary.

I yield the floor.

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