Ensuring Tax Exempt Organizations the Right to Appeal Act

Floor Speech

Mr. BLUMENTHAL. Mr. President, I thank my colleague from Kentucky for
giving me the opportunity to ask a question. In the preface to that question,
I would like to make a couple of remarks if he will yield to me for that purpose.

My colleague from Kentucky has taken the floor tonight in the highest
traditions of the Senate to make a point that should be meaningful to
all of us who care about our democracy. My colleagues, including the
Senator from Kentucky, have made a number of important points about the
dangers of mass surveillance and the harms caused by the bulk
collection of Americans' data.

I agree with those who have pointed out that the USA FREEDOM Act is a
strong compromise solution for protecting Americans' freedom and
security at the same time as striking a balance between preserving our
security and protecting our precious rights.

I want to highlight for the Senator from Kentucky, in his very
insightful remarks, as well as for my colleagues and others who are
interested in this topic, a particular part of that legislation--the
provisions that deal with the adversarial process in the FISA Court.

The bulk collection program is a powerful example of why we need a
stronger adversarial process. We know that bulk metadata collection is
unnecessary. The President's own review group has made that clear. We
also know that bulk metadata collection is un-American. This country
was founded by people who rightly abhorred the general warrant, and no
general warrant in our history has swept up as much information about
innocent Americans as the orders permitting and enabling bulk
collection.

Last week, the Second Circuit Court of Appeals held that bulk
collection is also unauthorized by the law. More than 9 years after the
government began bulk collection, we are finally told by the highest
court to consider the question that the bulk collection program was
never authorized by Congress.

How do we get here? How do we arrive at a place where one of the most
respected courts of appeals in the United States says that the
executive branch of our government has been collecting data on innocent
Americans without legal authority to do so--in fact, breaking the law
by invading Americans' privacy?

We got here because the FISA Court failed its most crucial test. In
May of 2006, the FISA Court was asked whether the Federal Government
could collect phone records of potentially every single American. The
argument hinged on the word ``relevance'' in the statute. Under the
statute, the Federal Government can collect relevant information. The
court had to decide whether ``relevant information'' means all
information.

That does not strike me as a difficult question. Does ``relevant
information'' mean all information? It did not strike the Second
Circuit Court of Appeals as a difficult question either.

The Second Circuit held that the Federal Government's interpretation
is ``unprecedented and unwarranted.'' Those are strong words for a
court normally extraordinarily reserved and understated in its
characterization of illegality by the executive branch. But the court
said unequivocally and emphatically that the Government was breaking
the law.

Never before in the history of the Nation had such a bizarre
interpretation been entertained. At the very least, you would have
thought the FISA Court would recognize that its May 2006 decision was
important.

If this question had gone to a regular article III court, it would
have been immediately recognized as a momentous decision, permitting
bulk collection of data on every American. Litigants on both sides
would have, in effect, pulled out all the stops in their arguments. Yet
not only did the FISA Court get the question wrong in May of 2006, it
appears not even to have spotted the issue, not even to have raised it
and addressed it in its opinion. Of course, nobody knew it at the time
because the opinion itself was kept secret, as were all of the
proceedings on this issue.

The FISA Court upheld the government's bulk collection program, and
it did so without even writing an opinion explaining its legal
reasoning. Not until the program was made public roughly 8 years later
was an opinion written, and every opinion released so far has omitted
key issues or ignored key precedent.

If the court had written an opinion, at least Congress would have
quickly known what the court had done, not to mention the American
people would have known what the court had done, but the court wrote
nothing. It chose to be silent and secret, and apparently it believed
this issue merited no notice to the Congress. A court that could get
such an important question so disastrously and desperately wrong is
fundamentally broken.

Let me be clear. I do not mean to denigrate the judges of the FISA
Court. Any judge, no matter how wise and well attuned to legal issues,
needs to hear both sides of an argument in order to avoid mistakes.
Courts make better decisions when they hear both sides.

In fact, during a hearing on this issue in the Senate Judiciary
Committee, I had the opportunity to ask one of the Nation's foremost
jurists whether she could do her job without hearing from both sides of
an argument, and she was quite clear that she could not. Adversarial
briefing, she explained, is essential to good decisionmaking.

We know as much from our own everyday lives that we make better
decisions when we know the argument against what we are going to do,
what we are going to think, and what we are going to say. It is the
genius of the American system of jurisprudence that judges listen to
both sides in open court before they make a decision. Their rulings are
public, and they themselves are evaluated and judged.

Nine years after the FISA Court's ruling in May of 2006, we continue
to wrestle with the impact of the court's grievous, egregious error,
but we cannot simply fix the mistake without fixing the court. We
cannot fix the system without remedying the process because that
process is so broken, it will make more mistakes--not only predictable
mistakes but inevitable mistakes.

As technology evolves, we cannot say with certainty what the next big
privacy issue will be. In 2006, the FISA Court decided whether the
government can collect all of our phone records. In 2020, the
government will have some new means of surveillance, and they will want
to try it. In 2030, we will have another.

We need a FISA Court that we can trust to get the question right.
Trust, confidence, and the integrity of the judicial system that
authorizes the surveillance of Americans' private lives is at issue
here.

We need a FISA Court that operates transparently, openly, and has
accountability. A court that operates in secret and hears only the
views of the government and faces only minimal appellate reviews cannot
be trusted to pass the next big test.

The USA FREEDOM Act would fix this systemic problem. It would demand,
under certain circumstances, that the FISA Court hear from both sides
of the issue and explain why it is making a decision and also explain
why it has decided not to hear both sides if it chooses to do so. That
would bring transparency to the FISA Court decision, requiring them to
be released unless there is good reason not to release them. It
preserves the confidentiality of the court where necessary, but it also
protects the fundamental, deeply rooted sense of American justice that
an adversarial, open process is important--indeed, essential--to
democracy. And it would provide some appellate review, some form of
review by an appellate court so that if mistakes are made, they are
more likely to be caught and stopped before they result in fundamental
invasion of private rights.

In short, the USA FREEDOM Act will make the FISA Court look more like
the courts Americans deal with in other walks of life, more like the
courts they know when they are litigants, when they are spectators, and
more like the courts our Founders anticipated.

What would they have thought about a court that hears cases in
secret, makes secret decisions, operates in secret, and issues secret
rulings? They would get it wrong. They would have thought that that
sounds a lot like the Star Chamber, that sounds a lot like the so-
called courts that caused our rebellion.

This change will help ensure that we are not back in this Chamber 9
years from now debating the next mass surveillance program that started
without Congress actually authorizing it, as did metadata collection. It will
help ensure that strictures of our Constitution are obeyed in spirit
and letter. It will help ensure that programs designed to keep
Americans safe can command the respect and trust they need to be
effective. We need those programs. National security must be preserved
and protected, but we need not sacrifice fundamental rights in the
process.

Unless and until this essential reform is enacted, along with the
other essential reforms contained in the USA FREEDOM Act, I will oppose
any reauthorization of section 215.

The question that I ask my colleague from Kentucky and the point that
I think he has made so powerfully and eloquently relates to this
essential feature of our American jurisprudence system. Are not open
adversarial courts essential to the trust and confidence of the
American people, and do we not need that kind of fundamental reform in
order to preserve our basic liberties?

I ask this question of my colleague and friend from Kentucky because
I think his debate on the floor of this Senate tonight raises
fundamental issues that need to be discussed and addressed.

I thank the Senator from Kentucky for the opportunity to ask this
question and address this body.

I thank the Presiding Officer.

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