USA FREEDOM Act

Floor Speech

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Mr. LEAHY. Mr. President, the senior Senator from Utah has laid out very well the reasons for the changes proposed in the House and proposed by his and my bill. He also said something we should all think about. A couple of minutes ago, he said: Assuming everybody is following the rules today, are they going to follow the rules tomorrow or next year or the year after?

When he mentioned that, he also mentioned my years as a prosecutor. Let me tell a short story. I became one of the officers of the National District Attorneys Association and eventually vice president. A number of us had occasion to meet the then-Director of the FBI, J. Edgar Hoover. I thought back to some of the frightening things he said about investigating people because of their political beliefs. You could tell Communists because they were all ``hippies driving Volkswagens'' was one of the things he said; secondly, that the New York Times was getting too leftist in some of its editorials and was coming very close to being a Communist paper, and he was making plans to investigate it as such. Think about that for a moment. The New York Times had criticized him editorially, and he was thinking he should investigate it as a Communist paper.

Not long thereafter, he died. We found out more and more about the secret files he had on everybody, from Presidents to Members of Congress. What if a J. Edgar Hoover had the kinds of tools that are available today? That would be my response to the Senator from Utah, and that is why I totally agree with him that we have to think about not just today but what might happen in the future.

For years, Section 215 of the USA PATRIOT Act has been used by the NSA to justify the bulk collection of innocent Americans' phone records. Americans were appropriately outraged when they learned about this massive intrusion into their privacy.

Look at what happened last week. The highly respected Federal Second Circuit Court of Appeals confirmed what we have known for some time: The NSA's bulk collection of Americans' phone records is unlawful, it is not essential, and it must end. That basically says it all. It is unlawful, it is not essential, and it should end.

Under the government's interpretation of Section 215, the NSA or FBI can obtain any tangible thing so long as it is ``relevant'' to an authorized investigation. Think for a moment back to J. Edgar Hoover--and I do not by any means equate the current Director of the FBI or his predecessors with what happened back then, but if you have somebody with that mindset.

In the name of fighting terrorism, the government convinced a secret court that it needed to collect billions of phone records of innocent Americans--not because those phone records were relevant to any specific counterterrorism investigation but, rather, because the NSA wanted to sift through them in the future. This is an extraordinarily broad reading of the statute--one that I can say, as someone who was here at the time, that Congress never intended--and the Second Circuit rightfully held that such an expansive concept of ``relevance'' is ``unprecedented and unwarranted.'' Such an interpretation of ``relevance'' has no logical limits.

This debate is not just about phone records. If we accept that the government can collect all of our phone records because it may want to sift through them someday to look for some possible connection to terrorists, where will it end?

We know that for years the NSA collected metadata about billions of emails sent by innocent Americans using the same justification. Should we allow the government to sweep up all of our credit card records, all of our banking or medical records, our firearms or ammunition purchases? Or how about anything we have ever posted on Facebook or anything we have ever searched for on Google or any other search engine? Who wants to tell their constituents that they support putting all this information into government databases?

I say enough is enough. I do not accept that the government will be careful in safeguarding this secret data--so careful that they allowed a private contractor named Edward Snowden to walk away with all this material. What is to stop anybody else from doing exactly the same thing?

During one of the six Judiciary Committee hearings that I convened on these issues last Congress, I asked the then-Deputy Attorney General whether there was any limit to this interpretation of Section 215. I did not get a satisfactory answer--that is, until the Second Circuit ruled last week and correctly laid out the implication of this theory. They said that if the government's interpretation of Section 215 is correct, the government could use Section 215 to collect and store in bulk ``any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e-mail and social media information) relating to all Americans.'' I don't think you are going to find many Americans anywhere in the political spectrum who want to give this government or any other government that kind of power because nothing under the government's interpretation would stop it from collecting and storing in bulk any of this information.

The potential significance of this interpretation is staggering. It is no wonder that groups as disparate as the ACLU and the National Rifle Association have joined together to file a lawsuit in the Second Circuit to stop this bulk collection program.

Congress finally has the opportunity to make real reforms not only to Section 215 but to other parts of FISA that can be used to conduct bulk collection. Tomorrow, the House will consider the bipartisan USA FREEDOM Act of 2015. Senator Lee and I have introduced an identical bill in the Senate. If enacted, our bill will be the most significant reform to government surveillance authorities since the USA PATRIOT Act was passed nearly 14 years ago. Our bill will end the NSA's bulk collection program under Section 215. It also guarantees unprecedented transparency about government surveillance programs, allows the FISA Court to appoint an amicus to assist it in significant cases, and strengthens judicial review of the gag orders imposed on recipients of national security letters.

The USA FREEDOM Act is actually a very commonsense bill. That is why Senator Lee and I were able to join together on it. He is right--we come from different political philosophies, different parts of the country, and obviously we don't agree on all things, but we agreed on this because it makes common sense and it is something that should bring together Republicans and Democrats. It was crafted with significant input from privacy and civil liberties groups, the intelligence community, and the technology industry. It has support from Members of Congress and groups from across the political spectrum.

Mr. President, I ask unanimous consent to have printed in the Record editorials from the Washington Times, the Washington Post, USA TODAY, and the Los Angeles Times in support of the USA FREEDOM Act.

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Mr. LEAHY. Some would argue that no reforms are needed. Unfortunately, they do not go into the facts, as the Second Circuit did; they invoke fearmongering and dubious claims about the utility of the bulk collection programs to defend the status quo. These are the same arguments we heard last November when we were not even allowed to debate an earlier version of the USA FREEDOM Act because of a filibuster.

Last week, some Senators came to the floor to argue that the NSA's bulk collection of phone records might have prevented 9/11. Now, this specter is always raised, that it might have prevented 9/11 and is vital to national security. We also heard that if we enact the USA FREEDOM Act, that will somehow return the intelligence community to a pre-9/11 posture. None of these claims can withstand the light of day.

I will go back to some of the facts--not just hypotheses. Richard Clarke was working in the Bush administration on September 11, 2001. I asked him whether the NSA program would have prevented those attacks. He testified that the government already had the information that could have prevented the attacks, but failed to properly share that information among Federal agencies. Likewise, Senator Bob Graham, who investigated the September 11 attacks as part of the Senate Intelligence Committee, also debunked the notion that this bulk collection program would somehow have prevented the 9/11 attacks.

The NSA's bulk collection of phone records simply has not been vital to thwarting terrorist attacks. When the NSA was embarrassed by the theft of all of their information and the news about the NSA's phone metadata program first broke, they defended the program by saying it had helped thwart 54 terrorist attacks. Well, I convened public hearings on this and under public scrutiny, that figure of 54 initially shrunk to: Well, maybe a dozen. We scrutinized that further. They said: Well, maybe it was two. Everybody realized that the government had to tell the truth in these open hearings. And then they said: Maybe it was one. That sole example was not a ``terrorist attack'' that was thwarted. It was a material support conviction involving $8,000 not a terrorist plot.

Numerous independent experts also have concluded that the NSA's bulk collection program is not essential to national security. I mention these things, because as soon as you come down and say: We are all going to face another 9/11, we are all going to face ISIS, we are all going to face these terrible attacks if we do not have this program--yet we can show that it has not stopped any attacks.

The President's Review Group, which included former national security officials, stated: The bulk collection of American's phone records was not essential to preventing attacks, and could readily have been obtained in a timely manner using conventional Section 215 orders.

So we can go with hysteria and overstatements or we can go with facts. In my State of Vermont, we like facts. We should not be swayed by fearmongering. Congress cannot simply reauthorize the expiring provisions of the USA PATRIOT Act without enacting real reforms.

When the House passes the USA FREEDOM Act tomorrow and sends it to the Senate, we should take it up immediately, pass that bill. The American people are counting on us to take action. They did not elect us to just kick the can down the road or blindly rubber stamp intelligence activities that now have been found by the court to be illegal. Congress should pass the USA FREEDOM Act this week.

I thank my good friend from Utah for yielding to me. I totally agree with his position.

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