Leahy Statement On On S. 139, the FISA Amendments Reauthorization Act of 2017

In about an hour, the members of this body will vote whether or not to cut off debate and block any amendments on a fundamentally flawed piece of legislation that fails to reform one of our most important surveillance tools.  Section 702 of the FISA Amendments Act was intended to provide for vast and powerful surveillance of foreigners overseas.  And it does.  But the fact that it is an effective surveillance tool used against foreigners abroad is not what you will hear concern about today.

You will hear concern that Section 702 has also become an unexpected and powerful domestic surveillance tool, allowing the government to search for Americans’ emails and other substantive communications without a warrant—the so-called backdoor loophole.  That is a Fourth Amendment problem. The legislation we are voting on today, authored by the Chairman of the House Intelligence Committee, Devin Nunes (R-Ca.), contains what its supporters portray as a fig leaf of reform.                                         

But in fact this legislation makes a bad problem worse.  I will oppose cutting off debate on this bill, and I strongly urge my fellow Senators to do the same.  On such a critical surveillance tool, senators should be afforded the opportunity to debate the constitutional implications and offer amendments to improve the bill. But the Majority Leader has provided us no such opportunity, and he now intends to deny us even the opportunity to offer any amendments. 

Senator Lee and I are filing several amendments to improve this bill, including our USA Liberty Act, a Senate companion to a bill that was reported out of the House Judiciary Committee in a strong, bipartisan vote.  Our amendment offers a sensible compromise that would protect national security while also protecting Americans’ civil liberties.  

I also strongly support a warrant requirement based on Senator Feinstein’s amendment in the Senate Intelligence Committee that would close the backdoor loophole.  These amendments, and others offered by Senators Paul and Wyden and others, deserve a vote.  And that is all I am asking for today.  

Instead, the only bill we are voting on today, the Nunes bill, fails to comply with a fundamental constitutional imperative.  Do not be deceived by the sham warrant contained in the Nunes bill.  Its exemptions are so large as to render it meaningless.  The bill would require a warrant only during the final stage of a criminal investigation, and only when the government believes national security or risk to life or bodily harm are not implicated at some undefined point in time.  In all other cases, and at previous points in an investigation, the government can search for an American’s information in the Section 702 database just frequently and casually as Americans use Google. 

Yet, even if it is completely ineffectual, the Nunes bill has a warrant requirement.  That means the sponsors of this flawed legislation acknowledge that some sort of warrant is required to protect Americans’ privacy when Section 702 is used.  They recognize that searching through a vast database of Americans’ communications can trigger Fourth Amendment protections, at least when it is convenient for the government.                                                                                                      
The problem is, the Constitution does not only apply when it is convenient.  When a Fourth Amendment interest is implicated, the government needs to obtain a warrant.  The Fourth Amendment either applies, or it does not.  Apparently even the sponsors of the Nunes bill now agree that the Fourth Amendment applies; the only question is whether we have a real warrant requirement, or a warrant in name only.

I firmly believe a real warrant requirement need not put our national security at risk.  The reform proposals that I support contain well-trodden exemptions for exigent circumstances to allow for emergencies.  For these reasons and others, I strongly support a warrant requirement to close the backdoor loophole.  And I strongly believe that the Majority Leader should at least give us a vote.                                                        

Until then, I urge my colleagues in the Senate to vote no on invoking cloture on the FISA Amendments Reauthorization Act.  Section 702 authorities can be temporarily extended on any Continuing Resolution, as they were in December.  And the FISA Court’s statutorily-authorized certifications that permit 702 surveillance will not expire until the end of April. 

We still have the time and ability to get this right.  The Majority Leader should do his part and allow members who care deeply about this issue to offer amendments before any long-term authorization.  Section 702 is an important tool, but this issue is far too important to rush through without adequate debate.  I firmly believe we can both protect our national security and the civil liberties of law-abiding Americans.  This bill clearly falls short, and I will be voting “no.”

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