USA Freedom Act of 2015 -- Continued

Floor Speech

Mr. BLUMENTHAL. Mr. President, I feel my speaking at this moment is
appropriate because much of what I have to say follows logically from
the last words of the Presiding Officer when he spoke recently on the
USA FREEDOM Act because I agree with the Presiding Officer when he said
we need a bill. We need to move forward and approve reforms and changes
in the law that are contained in the USA FREEDOM Act. We may be in
disagreement about some of the specifics. We may be in contention about
the extent of the changes made. But there is a general consensus that
this decade-and-a-half old law is in some need of revision.

The USA FREEDOM Act contains many important and genuinely worthwhile
changes in the rules that will apply as the United States helps to
protect our security but also to safeguard and preserve essential
rights and liberties. That is the balance which needs to be struck. It
is a difficult balance in a democracy, one of the most difficult in an
area where secrecy has to be maintained because surveillance is more
useful if it is done in secret, but at the same time, rights need to be
protected in an open society that prides itself on transparent and
accessible courts.

Changes in the rules are welcome, such as the end to the present
system of bulk collection of phone data. We may disagree on that point.
Changes in the rules that I support may not be supported by many of my
colleagues. I believe the USA FREEDOM Act goes in the right direction
on bulk collection of phone data by ending the current practice in its
present form.

What brings me to the floor is not so much a discussion about the
rules as the method of enforcing those rules and implementing and
assuring that they are faithfully executed, which is the role and the
responsibility of the Foreign Intelligence Surveillance Court in the
first instance. There are means of appeal from that court, but, as with
many courts in our system, that one is likely to be the end destination
on most issues, particularly since it operates in secret.

The USA FREEDOM Act goes in the right direction by making it more
transparent and requiring the disclosure of significant decisions and
opinions when it is appropriate to do so and under circumstances that
in no way should involve compromising our national security--striking,
again, a good balance.

But this Court, we have to recognize, is an anomaly in an open,
democratic system. Its secrecy makes it an anomaly. It works in secret,
it hears arguments in secret, and it issues opinions in secret. Its
decisions are almost never reviewable. It is, unlike most of our
institutions, opaque and unaccountable--understandably so because it
deals with classified, sensitive information, protecting our national
security against threats that cannot be disclosed when they are
thwarted in many instances. The success of actions resulting from the
FISA Court are most valuable when they are known to most American
people.

So this court is special. It is different. But let's not forget that
if we were to say to the Founders of this country that there will be a
court that works in secret, has hearings in secret, issues opinions
that are kept secret, and its decisions will have sweeping consequences
in constitutional rights and liberties, they would say: That sounds a
lot like the courts that were abhorrent to us, so much so that we
rebelled against the Crown, who said in the Star Chamber, in courts
that England had at the time, that there was no need for two sides to
be represented or for openness. Secret, one-sided courts were one of
the reasons we rebelled. Men and women laid their lives on the line.
They lost their homes, treasures, families, and paid a price for open
and democratic institutions.

So we should be careful about this anomalous court. It may be
necessary, but we should try to make it work better, and we have.

Transparency in the issuance of opinions is very much a step in the
right direction where the issues are significant and the transparency
of those decisions is consistent with our security at the moment. There
may be a delay, but we should remember that the bulk collection of
phone data, which the U.S. Court of Appeals for the Second Circuit said
was illegal, persisted for so many years because the decision itself
was never made known to the American people.

There is another reform that I think is equally if not more
significant. Courts that are secret and one-sided are likely to be less
accessible not only because they are secret but because they are one-
sided. So as a part of this reform, I have worked hard and proposed, in
fact, for the first time a bill that would create an adversarial
process--two sides represented before the court.

A bill that I sponsored in 2013 to reform the Foreign Intelligence
Surveillance Court was joined by 18 cosponsors. I thanked them for
their support, both sides of the aisle. The basic structures that I
proposed are reflected in the USA FREEDOM Act today.

Colleagues worked with me--and have since--on formulating that bill
and in arriving at this moment where the central goals would be
accomplished by section 401 of the USA FREEDOM Act, which provides for
the appointment of individuals to serve as amicus curiae--friends of
the court--in cases involving a novel or significant interpretation of
the law.

That provision would be egregiously undercut--in fact, gutted--by
McConnell amendment No. 1451 because it would prevent these lawyers--
the amicus curiae who would be selected by the court--from obtaining
the information and taking the actions they need to advance and protect
the strongest and most accurate legal arguments, and that is really
eviscerating the effectiveness of this provision as a protection. It is
a protection of our rights and liberties because these amicus curiae
would be public advocates protecting public constitutional rights, and
they would help safeguard essential liberties not just for the
individuals who might be subjects of surveillance, whether it be by
wiretap or by other means, but for all of us, because the Foreign
Intelligence Surveillance Court is a court. Its decisions have the
force of law. Its members are article III judges selected to be on that
court, sworn to uphold the law, both constitutional law and statutory
law.

So this provision, in my view, is fundamental to the court as a
matter of concept and constitutional integrity. That integrity is
important because it is a court, but it is also important to the trust
and confidence the people have in this institution.

I was a law clerk to the U.S. Supreme Court--specifically to Justice
Blackmun--and I well recall one of the Justices saying to me: You know,
we don't have armies; we don't have police forces; we don't have even
the ability to hold press conferences. What we have is our credibility
and the trust and confidence of the American people.

That is so fundamental to the courts of this Nation that consist of
judges appointed for life, without any real direct accountability, as
we can be held to through the election process.

The Foreign Intelligence Surveillance Court has taken a hit in public
trust and confidence. There is a question about whether the American
people will continue to have trust and confidence and whether that
sense of legitimacy and credibility will continue. The best way to
ensure it is, is to make the court's process as effective as possible
not just in the way it operates but in the way it is seen and perceived
to operate, the way the American people know it should operate, and the
way they can be assured that their rights are protected before the
court by an advocate, an amicus curiae who will protect those rights of
privacy and liberty that are integral to our Constitution--and the
reason why the Founders rebelled against the English.

But there is another reason an advocate presenting the side opposing
the government is important to the Foreign Intelligence Surveillance
Court; that is, everybody makes better decisions when they hear both
sides of the argument. Judges testified at our hearings in the
Judiciary Committee about the importance of hearing both sides of the
argument, whether it is a routine contract case or a criminal trial--
where, by the way, often a judge's worst nightmare is to have the
defendant represent himself because the judge is deprived, and so is
the jury, of an effective argument on the other side of the government.
And so, too, here we were told again and again and again by the
judicial officers who testified before our committee--and I have heard
it again and again and again as I have litigated over the last 40
years--that judges and courts work best when they hear both sides.

I have no doubt the judges of the FISA Court believe as strongly in
constitutional rights and implementation of the Constitution as anyone
in this body, including myself. I have no doubt government litigators
who appear before the court representing the intelligence agencies
seeking warrants or other actions and approval by the court have a
commitment no less than anybody in the United States Senate, including
myself, to those essential values and ideals. But courts are
contentious. They are places where people argue, where sides--different
sides--are represented with different views of complex questions, and
these issues before the court are extraordinarily complex. They also
involve technology that is fast changing and often difficult to explain
and comprehend and is easily minimized in the consequences that may
flow from approval of them.

So the USA FREEDOM Act would provide for, in effect, a panel of
advocates and experts with proper security clearances that the court
can call upon to give independent, informed opinions and advocacy in
cases involving a novel or significant interpretation of law, not in
every case, not every argument but where there is, for example, the
issue of whether the statute authorizes the bulk collection of phone
records.

I tend to think the outcome would have been different in that case if
the court had been given the opposing side of the argument, the
argument that eventually prevailed in the U.S. Court of Appeals for the
Second Circuit by a unanimous bench.

So the court really deserves this expertise. It deserves the other
side and it deserves to hear both sides of the argument. Just to
clarify, those two sides of the argument should not be in any way given
so as to detract from the time necessary. If it is an urgency, the
warrant should be issued and the arguments heard later, just as they
are in criminal court. When there is an exigency of time--and I have
done it myself as a prosecutor--the government's lawyer should go to
the judge, be given approval for whatever is necessary to protect the
public or gain access to records that may be destroyed or otherwise
safeguard security, public safety, and that should be the rule here
too.

Now, in the normal criminal setting, at some point, a significant
issue of law is going to be litigated if the evidence is ever used, and
that is the basic principle here too. If there is a novel or
significant issue of law, it should be litigated at some point, and
that is where the amicus curiae would be involved. Security clearance
is essential, timing is important, and there should be no compromise to
our national security in the court hearing the argument that the
advocate may present on the other side. It can only make for better
decisions. In fact, it will benefit all of our rights.

These provisions were written in consultation with the Department of
Justice attorneys who advocate before the FISA Court. They are
supported by the Attorney General and the National Director of
Intelligence. They reflect the balance and compromise that appear
throughout the USA FREEDOM Act. Amendment No. 1451 would upset this
balance. It would strike the current provisions providing for the
appointment of a panel of amicus curiae--the provisions that represent
a carefully crafted balance--and it would compromise those provisions
in a way that need not be done because this balance has the support of
numerous stakeholders, from civil liberties groups to the intelligence
community, and it would replace this balance, this institution, with an
ineffective, far less valuable advocate.

There is no need to water down and undercut and eviscerate the role
of the independent experts by removing requirements for the court to
appoint a panel of experts to be on call, for the experts to receive
briefings on relevant issues, and significantly to provide those
experts with access to relevant information. Those provisions are
unnecessary and unwise and, therefore, I oppose strongly amendment No.
1451 because it does unnecessarily and unwisely weaken the role of
these experts and amicus curiae.

Equally important, amendment No. 1451 would limit access and
significantly restrict the experts in their going to legal precedents,
petitions, motions or other materials that are crucial to making a
well-reasoned argument. It would restrict their access unnecessarily
and unwisely; thereby, endangering those rights and liberties the
public advocates are there to protect. It would also restrict their
ability to consult with one another and share insights they may have
gained from related cases as government attorneys are currently able to
do.

By undercutting these essential abilities and authorities, this
amendment would hamstring any independence, both in reality and in
perception; thereby, also undercutting the trust and confidence this
act is designed to bolster and sustain.

In short, I know many people of good conscience may disagree over the
best way to reform this law. I accept and I welcome that fact. I
welcome also my colleagues' recognition that an amicus curiae procedure
in some form would benefit this court, but I urge my colleagues to
reject an amendment that would lessen its constructive and beneficial
impact.

We have already delayed long enough. This amendment would not only
weaken the bill, it would exacerbate the delay by sending this bill
back to the House. We all want to avoid a very potentially troubling
delay in approving this measure. I have been dismayed by the divisions
and delays that have prevented us from finally approving the USA
FREEDOM Act before the existing law expires. We should move now. We
should act decisively. We should adopt the USA FREEDOM Act without
amendment No. 1451, which would simply further erode the trust and
confidence, the legitimacy, and credibility of the Foreign Intelligence
Surveillance Court.

I urge my colleagues to join me in voting against this amendment,
passing the USA FREEDOM Act in its current form, avoiding the delay of
sending it back to the House and then potentially having it come back
to the Senate, so we can tell the American people we are protecting the
strongest, greatest country in the history of the world from some of
the most pernicious and perilous terrorist forces ever in the world's
history.

Mr. President, I yield the floor.

I suggest the absence of a quorum.

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Mr. BLUMENTHAL. I will withhold my request, and I will just add,
while we are waiting for my colleague to take the floor, that I want to
join a number of my colleagues and speak on another matter.

Remembering Beau Biden

Mr. President, I join many of my colleagues in our feelings and
expressing deep sadness on the loss of Beau Biden, one of our Nation's
greatest public servants, one whom I was privileged to
join in serving with as attorney general--he as the attorney general of
Delaware and I of Connecticut.

I knew Beau Biden well and, in fact, sat next to him at many of our
meetings of the National Association of Attorneys General. There was no
one I met as attorney general who was more dedicated to the rule of
law, to protecting people from threats to public safety, and respecting
their rights and liberties in doing so.

His loss is really a loss to our Nation as well as to the Vice
President's family and my heart and prayers go out to them. I know how
deeply the Vice President loved Beau Biden and how much, as a dad, his
death will unspeakably and unimaginably affect him.

So, again, I want to express, on behalf of Cynthia and myself, our
thoughts and prayers which are with the Vice President and his family
at this time.

I yield the floor.

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