Mr. President, I thank the chairman of the Judiciary Committee for his support and for his very indepth analysis of how this works and why it is constitutional. I ask unanimous consent that Senator Warner and I be permitted to conclude our…
Mr. President, I thank the chairman of the Judiciary Committee for his support and for his very indepth analysis of how this works and why it is constitutional.
I ask unanimous consent that Senator Warner and I be permitted to conclude our remarks prior to the cloture vote.
Mr. President, I yield to the vice chairman of the Intelligence Committee.
Mr. President, I thank the vice chairman of the committee, and I say to those who are opposed to this, I have great affection for all of you. They have passion which really displays their belief that the American people need to be protected from government.
Let me just say from the start, this is the single most reviewed program that exists in the Federal Government. This is reviewed congressionally--it is reviewed by the courts, it is reviewed by the DNI, it is reviewed by the inspector general and the Department of Justice--because, on the committee, we realize this requires not just the stamp of approval from Congress but the assurance by the Intelligence Committee and by every branch of government that it lives within the parameters we set.
I am not sure everybody could have heard a more thorough description than what Senator Warner just gave and a more overwhelming voice of support than what the chairman of the Judiciary Committee, Senator Grassley, gave, but let me take head-on a couple of issues that have come up and claims that have been made on this floor this afternoon.
One is, this is unconstitutional. Well, let me just be clear. This has been tested in the courts, and the courts have ruled this program is lawful, and it is constitutional. So any claim outside of that is not a claim from the Judiciary, which we trust, it is a claim from an individual, and I believe we should, in this case, trust the courts.
Let me say, Congress recognized the constitutionality of section 702 when it reauthorized the bill in 2012. Further, Federal courts have consistently upheld the constitutionality of 702. For example, in the United States v. Mohamud, the Ninth Circuit, December 5, 2016, the court unanimously held that no warrant is required for a search targeted at a foreign person abroad who lacks Fourth Amendment rights, even though some U.S. persons' communications are incidentally acquired in that collection.
The court found that section 702 collection was reasonable under the Fourth Amendment, the reasonableness balancing test, and the targeting and minimization of procedures sufficiently protected the defendant's privacy issues. It is contrary to things you heard on this floor in the last hour, but this is the Ninth Circuit, December 5, 2016, making a ruling based upon this incidental collection that applies to U.S. citizens.
What the vice chairman just shared with you is, we went a step further. We didn't leave it just with the court to determine constitutionality and the lack of a Fourth Amendment protection. We put into the bill that if it didn't have a national security implication-- if it was a criminal act, and it was going to be prosecuted in the courts that way, before they could look at the content of that communication, it required them to go to the court and seek and get a warrant before, in fact, they could look at content.
So not only do we have the courts on our side saying there is no Fourth Amendment protection, we have gone a step further and said: In the case of U.S. citizens, if, in fact, they were incidentally collected and if, in fact, the information that was in the database is going to be used for a criminal case--Senator Paul talked about marijuana--they would have to actually go to a court and get a warrant from a judge to look at that content, which means you are going to have an FBI agent who is going to make a determination whether the content of that message is valuable enough to go to the courts and seek a warrant. This is a protection for the American people. It is not a requirement for the Fourth Amendment or for the constitutionality of 702.
Now, let me just say to my colleagues, if there are any on the fence post, the Director of National Intelligence is off the floor in the Vice President's Room. If you need one of the guys who has to oversee this program, who understands the importance of it, he is here. He is ready to talk to any Member. Why? Because 702 is the single most important national security tool we have in the United States.
If you ask me to sum up what is this bill for, this is to allow government to keep the American people safe. This bill does more to allow law enforcement, intelligence, the Congress of the United States, and the executive branch to assure the American people of their safety. That is at the heart of what Congress is established for. Spending and all these things come after that, but the defense of the country, defense of each individual American is what is at the root of our responsibilities, and 702, as it relates to this age of terrorism, is the single most effective tool we have to assure the American people we are doing everything we can to provide for their safety.
I might add to that, from a standpoint of the international collection and the international cadre of terrorists, we are able to share with other countries in a way nobody else can when their country is in jeopardy of a terrorist attack, and we have multiple examples where we have shared with our partners around the world--and, I might add, we don't necessarily require them to be a partner of ours to share this with them. We take countries we have no relationship with, maybe that we don't like too much--but America is unique. If we see a terrorist attack that is imminent, we will share that with any country in the world, even our hardest enemies. So let me put aside for any question that section 702 is lawful and it is constitutional.
Let me go to the rigorous oversight that I think the vice chairman described: It is overseen by the Foreign Intelligence Service Court. It is overseen by the Department of Justice and the IG. It is overseen by the Congressional Intelligence Committee. It is required to be evaluated on an annual basis by the Justice Department and by the Bureau for procedures they have to follow.
I can't stress enough that the committee--your committee--your colleagues in Congress are the ones who you should feel most confident after reviewing and providing proper oversight for this program. You see, it is those individuals who reach the clarity that is needed for this body and for the Congress to look at the American people and say: We haven't crossed the line. We have stayed within the legal box that was created.
Don't leave it to me. Let's use the Privacy and Civil Liberties Oversight Board or, as we like to refer to it, the
PCLOB. In 2014, following an extensive review, PCLOB specifically noted in that review, to date, there are no known instances in which government personnel deliberately violated the statute, targeting procedures, or minimization procedures.
Let me say that again. The Privacy and Civil Liberties Oversight Board--which many here created--came out and in their report said: To date, there are no known instances in which government personnel deliberately violated the statute targeting procedures or minimization.
At the same time, in that report, PCLOB made a number of recommendations to the government intended to enhance the safeguards for privacy and civil liberties in section 702. In February 2016, the Privacy and Civil Liberties Oversight Board reported that all of its recommendations had been implemented, in full or in part, by the government.
Let me say that again. In February 2016, every recommendation that the Privacy and Civil Liberties Oversight Board made about this program, the PCLOB certified that those had, in full or in part, been adopted by the Federal Government.
If you only go on what you heard over the last half an hour or an hour, you would think this is riddled with questions of constitutionality and that there are massive abuses. The fact is, there have not been any, and the courts have ruled that it is constitutional, it is legal, and it does not infringe on the Fourth Amendment at all.
Let me say to my colleagues, I expected we would be here. We had a heated debate in the committee. The Presiding Officer remembers that well because he is on the committee. We considered a lot of amendments, and at the end of the day, we came out with a bill that is very similar to what we have today. A 12-to-3 vote shows tremendous bipartisan support.
Now, if Senator Warner had written it by himself, it would probably look different. If I had written it by myself, it would probably look different. What we are asked to vote on today is a bill that looks different than what we passed out. It is a little bit stronger from the standpoint of the protection of privacy because it does institute this warrant requirement if, in fact, you want to see the content of any collection out of 702 dealing with a criminal process.
If it is national security, we are doing exactly what I think the American people want us to do. We are using the data we have to find the people who want to commit these acts and stop them before they do. If that is not the intent of this, then this probably shouldn't exist. If anybody believes terrorists have quit, and we are no longer a target, then eliminate this.
I am closer to the line than I ever thought I would be before I got to the U.S. Senate and certainly before I became chairman of the Intelligence Committee, but I do understand responsibilities. Responsibilities make sure those individuals whom we charge with protecting the American people have the tools they need to accomplish it. It is the reason we are debating, on this floor and at the other end of the Capitol, the funding of our military. It is to make sure our military has the tools they need to go out and do the mission they have been asked to do.
Well, from the Bureau to the intelligence community, we have asked them to do everything they can to make sure Americans stay safe, and this has been the most effective tool, with no abuses to date--and that is the determination of the Privacy and Civil Liberties Oversight Board, not a right-leaning institution--and the fact is, the government has lived exactly within the letters of the law that we have described.
So I urge my colleagues to vote for cloture. Let's move on to the 30 hours on this bill, if that is what, in fact, everybody demands. We have already extended it temporarily. That is not a sign of confidence to those who work in the trenches and we ask to keep us safe.
Let's do the bold thing. Let's finish this. This is a bicameral, bipartisan, negotiated bill--both sides of the aisle and both ends of the Capitol. It is time we do our business. I urge my colleagues to vote yes for cloture.
I yield the floor.