USA FREEDOM Act of 2015

Floor Speech

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Mr. BURR. Mr. President, there are always two sides of every picture, two sides of every story. I have tremendous affection for Ranking Member Leahy. We are friends. We look at this issue differently. I have deep respect for Senator Blumenthal, Senator Wyden.

The fact is I look at history a little bit differently and I look at the future a little bit differently because I think what the American people want to believe is that America is doing everything possible to keep them safe. I think, at the end of the day, that is the single most important issue: Are we doing everything we can to keep America safe?

Now, Senator Wyden opposes section 215. He talked about changes. He is opposed to section 215. He is a member of the committee. I know exactly where he stands, and I respect it. The fact is that 215 is a very effective program. My colleagues are right. It was not a public program until Eric Snowden, a traitor to the United States, published a lot of information about what the intelligence community does. This was one small piece. Eric Snowden put the lives of Americans and foreigners at risk in what he released.

You cannot put the genie back in the bottle, but you also cannot hide from the fact that this program enabled us to thwart terrorist attacks here and abroad. I quoted the four of them yesterday. This program itself was what we were able to use post the Boston Marathon bombing to figure out whether the Tsarnaev brothers had an international connection that directed that horrific event at that marathon.

Yes, the FISA Court operates in secret. Why? It is the same reason the Senate sometimes clears the Galleries, shuts the doors, cuts off the TV, and as an institution only cleared people here--classified and top secret information--can make decisions. Therein describes the FISA Court. They always deal with classified and top secret documents. They are called on a minute's notice. No other court in the world responds like that. There is a FISA judge on the bench 24/7, 365 days a year. It rotates. These are the best of the best of the judicial system around the country, picked by the Chief Justice of the Supreme Court.

Could it be open? Sure. But we would then expose either classified and top secret documents or we could not use the documents to make the case to the FISA Court that we have a suspected individual of terrorism and we need the authority to see who that person is. Well, we have heard a lot about the FISA Court. A lot of it is true.

The people who serve on the bench are heroes because they take the toughest cases America is presented with, and they rule on them in the most judicial way they possibly can, demanding, over 25 percent of the time, that an application be resubmitted after changes because they did not think it had met the threshold.

Much has been focused on the changes to the amicus language or the ``friend of the court.'' This is not a normal court. When the choice is to go to the FISA Court, it is because we are concerned. We are concerned about an imminent threat.

Let me explain, once again, for my colleagues and for the American people what the section 215 program is. It is a program where at the NSA we collect raw telephone numbers from telephone companies--numbers, not names.

We have a number that does not have a person's name with it. They are deidentified. We collect a number, the date the call was made, and the duration of the call. For us to trigger any search or we call it query of that database, we have to have a foreign telephone number that we know is a telephone number used by a terrorist.

Those are all the components of the section 215 program. That is it. We can have a database, but without a foreign terrorist telephone number, we cannot search the database. If we have a foreign terrorist telephone number and no database, which is where we are moving to--I concede this legislation is going to move, and we are going to transition over to hundreds of telephone companies.

Now, rather than have a number of people controlled and supervised within the NSA to carry out these queries, we are going to have telephone company employees carry out a query with a known foreign terrorist's telephone number against all of the numbers in their database. Again, hopefully, they will not tie a person's name to it. We do not even get a person's name at the NSA.

The only people who should be worried are Americans who have actually had a communication with a known terrorist abroad. Now, I think when the American people hear me talk about this, up to this point they are saying: That is a good thing. We want to know if somebody here has talked to a terrorist because we want to be kept safe.

Well, not only are we shifting the database out of the NSA over to the telephone companies, which means our response time is going to be delayed--let me remind everybody that whether we search the meta database at NSA or whether we search the database at the telephone company, we first have to go to the FISA Court and get a court order that says: You have the authority to do this based upon what you have presented the court.

Now we have to go to the telephone companies, and in a timeframe that is conducive to them, they are going to search their database for a known terrorist's cell phone number, and now we are relying on hundreds of companies to search their database in a timely fashion and get back to us because we are trying to be in front of a threat versus behind a threat.

In front of a threat, it is called intelligence; behind a threat, it is called an investigation.

When we thwarted the New York City subway bombing, we were in front of the threat. That was intelligence. When we reacted to the Boston Marathon, that was an investigation led by the FBI, not the NSA.

So when you inject this new requirement for a friend of the court--and I would disagree with my colleagues. This is not a voluntary thing for the FISA Court. It is something that is available to the FISA Court today if they choose to have somebody come in to counsel them on something. This is mandatory. In the legislation, it says ``shall.'' The court shall set up a panel. The court shall choose a friend of the court. A friend of the court is not there to facilitate a timely processing of information.

Let me remind everybody that we are dealing with the safety of the American people. They always stress this at the end of the conversation: We want the confidence and trust to be rebuilt that we are protecting our homeland. If you are moving a database, you are making it slower. Now you are setting up a mechanism inside to slow it down even more.

What we are doing is shifting from intelligence gathering to investigations. Nobody knows how long it is going to take from the time we present the FISA Court with a foreign terrorist's telephone number before we actually complete a search process within this new database.

I happen to be the one behind a 12-month transition versus a 6-month transition, and it was all stimulated off of exactly the same person whom Senator Blumenthal or Senator Wyden quoted. They said the Director of the NSA said: We think we can do this in 6 months.

Well, I am telling you, if I am the general public in America and I am concerned about my safety and the people who are supposed to be protecting me say ``I think I can do this in 6 months''--I would like somebody to say ``I am absolutely 100 percent sure I can do it in 6 months.'' But they think they can do it in 6 months. There is the reason for a year. There is the reason for a longer transition period.

If privacy were really the concern--and everybody has come down and said: I want to protect the privacy of the American people. Let me point out a couple of things.

No. 1, we didn't collect anybody's name in this program. It is hard to intrude on somebody's privacy when you didn't collect their name. We collected the number, the date of the call, and the duration of the call. That is it. Anything else that turns into an investigation is the Federal Bureau of Investigation going to a court and saying: We have to have more information because we know the President of the Senate is a potential threat to us. And then more information can be found out, such as his identity and anything else that might be part of the investigation. But from the standpoint of the NSA, those are the only things we have--a telephone number, a date, and the duration of the call.

If privacy is the concern, I don't think we have breached it. As a matter of fact, since this program has been in existence, there has not been one case of a breach of anybody's privacy--not one.

If they were truly concerned about privacy, they would be on the floor today with a bill abolishing the CFPB, which is a government agency, a government entity that collects every financial transaction of the American people by name, by date, by amount, by transaction. But they are not down here doing that. Why? Because they don't like the fact that the FISA Court operates in secret. They don't think there should be classified or top-secret documents. They believe everything should be transparent.

Well, let me say to my colleagues, my friends, and to the American people that we have done more over the last month to destroy the capacity of this program because of the debate we have had. There is not a terrorist in the world now who doesn't understand that using a cell phone or a land line is probably a pretty bad thing. It probably puts a target on their backs. We have done a great job of chasing people to alternative methods of communication, and I would suggest to you that is not making America any safer. If anything, maybe we should have had this debate in secret simply so we wouldn't give them a roadmap as to what we do.

Therein lies the reason that there are some things on which I think there is a determination made by the executive branch and by the legislative branch and I think in many cases at the dining room tables around America where Americans say: You know, you don't need to share everything with me. I am tired of hearing things on the nightly news that I think shouldn't be discussed.

This probably happens to be one of them because it doesn't make us more safe, it makes us less safe.

I will end the same way Senator Blumenthal did. People want to believe--question mark. I think people want to believe we are doing everything we possibly can to strengthen our national security, to eliminate the threat of terrorism here and abroad. My fear, quite frankly, is that this bill doesn't accomplish that.

Again, I have deep affection for those whose names are on the bill and for what they believe is the intent. But I think that at the end of the day the only responsible thing to do right now is to accept three amendments--one, a substitute, and two, a first-degree and a second-degree amendment.

Let me say briefly that the substitute incorporates two changes. One change is that the telephone companies would be required to notify 6 months in advance of any change in their retention program--in other words, how long they hold the data. I have received calls from both big telecom companies today, and they have both said: We have no problem with that.

The second one would have the Director of National Intelligence certify at the end of the transition period that technologically we can make the transition. I don't find anybody who has really objected to that.

Then there is an amendment that extends the transition period from 6 months to 12 months. There have been people who object to that. I would only tell you we have a difference of opinion. They are willing to trust the NSA on their ability to make the transition in 6 months. I think that is ironic because the reason we are here having this debate is because they have made us believe we can't trust NSA. Yet, they are willing to trust the NSA relative to a transition time that is sufficient to accomplish the transition.

Let's err on the side of caution. Let's do it at 12 months. If they can do it sooner, then let them petition us, Congress can pass it, and we will turn to it sooner. But let's not get to 6 months and be challenged with not being ready to make that transition.

The last one is a change to amicus language. Clearly, that is the biggest difference we have. I would say to my colleagues that you either vote for the amendment or you vote against it. If you vote for it, you will delay the time it will take for us to connect the dots between a foreign terrorist's telephone number and a domestic telephone number they might have talked to. If that doesn't bother Members and it doesn't bother the public, I am all for giving the American people what they want. But I think most American citizens sit at home and say: You know, the faster you do this, the safer I am. I have a responsibility first and foremost to the protection of the American people. It is in our oath.

I also share something with the Presiding Officer and my colleagues who are here--to protect the rights and liberties of the American people. And as the chairman of the Intelligence Committee, I don't think we have in any way infringed on that.

I am now in year 21. I have come a lot closer to the line than I ever dreamed when I came to Congress in 1995. But I also never envisioned an event as horrific as 9/11. I never envisioned an enemy as brutal as ISIL or Al Qaeda or the Houthis. I could go on and on.

What has changed since 9/11? On 9/11, we had one terrorist organization that had America in its crosshairs. Today, we have tens to twenties of organizations that are offshoots of terrorist organizations that would like to commit something right here in the United States. The threat hasn't become less; it has become more. We are on the floor today talking about taking away some of the tools that have been effective in helping us thwart attacks. It is the wrong debate to have, but we are here.

I would only ask my colleagues to show some reason. Extend by 6 months the transition period. Make sure it doesn't take longer to search these databases. Make sure we are ready for the telephone companies to carry out the searches because there is one certainty on which I think I would find agreement from all of my colleagues here: The terrorists aren't going away. America is still their target. No matter what we say on this floor, we are still in the crosshairs of their terrorist acts.

Only by providing the intelligence community and the law enforcement community the tools to carry out their job can they actually fulfill their obligation of making sure America is safe well into the future.

I yield the floor.

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