Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Introduction of the USA FREEDOM Act of 2013

The Foreign Intelligence Surveillance Act, or FISA, was enacted 35 years ago to limit the government’s ability to engage in domestic surveillance operations.  In the years since September 11, 2001, Congress has repeatedly expanded the scope of this law to provide the government with broad new powers to gather information about law-abiding Americans.  No one underestimates the threat this country continues to face, and we can all agree that the intelligence community should be given necessary and appropriate tools to help keep us safe.  But we should also agree that there must be reasonable limits on the surveillance powers we give to the government.  That is why I have consistently fought to curtail the sweeping powers contained in the USA PATRIOT Act and FISA Amendments Act, while also bolstering privacy protections and strengthening oversight.  And that is why I continue my efforts today by joining with Congressman Jim Sensenbrenner, as well as members of Congress from both political parties, to introduce the bipartisan USA FREEDOM Act of 2013.

Over the past several months, Americans have learned that government surveillance programs conducted under FISA are far broader than previously understood.  Section 215 of the USA PATRIOT Act has for years been secretly interpreted to authorize the dragnet collection of Americans’ phone records on an unprecedented scale, regardless of whether those Americans have any connection to terrorist activities or groups.  The American public also learned more about the government’s broad collection of Internet data through the use of Section 702 of FISA.  And the world has learned that this surveillance has extended to millions of individuals in the global community, including some of our allies and their leaders.  These revelations have undermined Americans’ trust in our intelligence community, and harmed our relationships with some of our most important international partners.

While I do not condone the manner in which these and other highly classified programs were disclosed, I agree with the Director of National Intelligence that this debate about surveillance needed to happen.  It is a debate that some of us in Congress have been engaged in for years.  Since this summer, the Judiciary Committee convened two public hearings and a classified briefing with officials from the administration, including the Director of National Intelligence, the Director of the National Security Agency, and the Deputy Attorney General. 

As a result of these hearings and the recent declassification of documents by the administration, the public now knows about the repeated and substantial legal and policy violations by the NSA in its implementation of both Section 215 and Section 702.  The public now knows that, in addition to collecting phone call metadata on millions of law-abiding Americans, the NSA collected, without a warrant, the contents of tens of thousands of wholly domestic emails of innocent Americans.  The NSA also violated a FISA Court order by regularly searching the Section 215 bulk phone records database without meeting the standard imposed by the Court.

These repeated violations, which have occurred nearly every year that these programs have been authorized by the FISA Court, led to several reprimands from the FISA Court for what it called “systemic noncompliance” by the government.  In addition, the Court admonished the government for making a series of substantial misrepresentations to the Court about its activities.  The NSA has assured Congress that these problems have been corrected.  Yet with each new revelation in the press about new techniques developed by the NSA that intrude into the privacy and everyday lives of Americans, I grow increasingly concerned about the lack of sufficient oversight and accountability.

Last week, the Assistant to the President for Homeland Security and Counterterrorism, Lisa Monaco, stated that the government should only collect data “because we need it and not just because we can.”  I completely agree – and that is why the government’s dragnet collection of phone records should end.  The government has not made a compelling case that this program is an effective counterterrorism tool, especially when balanced against the intrusion on Americans’ privacy.  In fact, both the Director and the Deputy Director of the NSA have testified before the Judiciary Committee that there is no evidence that the Section 215 phone records collection program helped to thwart dozens or even several terrorist plots. 

It is clear that as the administration has become more open and forthright about these programs, the facts have not matched the rhetoric.  It is time for serious and meaningful reforms to FISA in order to restore the confidence of the American people in our intelligence community.  Modest transparency and oversight provisions are a good first step, but by themselves they are insufficient to protect the privacy rights and civil liberties of Americans.  We must do more.

The USA FREEDOM ACT is a legislative solution that comprehensively addresses a range of surveillance authorities contained in FISA.  I want to thank Congressman Sensenbrenner for his dedicated work on this bipartisan, bicameral piece of legislation that we are introducing today.  We are joined in this effort by members of Congress from both chambers and across the political spectrum, and I want to thank the following Senators for cosponsoring this legislation: Senator Lee, Senator Durbin, Senator Heller, Senator Blumenthal, Senator Murkowski, Senator Hirono, Senator Udall of New Mexico, Senator Begich, Senator Baldwin, Senator Heinrich, Senator Markey, Senator Udall of Colorado, Senator Warren, Senator Merkley, Senator Tester, and Senator Schatz.

Our bill will end the dragnet collection of phone records under Section 215 of the PATRIOT Act by requiring that only documents or records relevant and material to an investigation may be obtained, and that they have some particular nexus to a specific foreign agent or power.  It will also ensure that the FISA pen register statute and National Security Letters cannot be used to authorize similar dragnet collection by applying the same standard.  The bill also adds more meaningful judicial review of Section 215 orders and raises the standard for the government to obtain a gag order for every Section 215 order.

In addition to stopping the dragnet collection of phone records, our legislation will address privacy concerns related to surveillance conducted under the FISA Amendments Act, which allows the government to gather vast amounts of Internet communications content by foreigners located overseas.  Given the technological nature of Internet communications, we must vigilantly protect against the inadvertent collection of the contents of the wholly domestic communications of U.S. persons – something that the NSA acknowledged has happened before.  Our bill will place stricter limits on this type of collection, and also require the government to obtain a court order prior to conducting ‘back door’ searches looking for the communications of U.S. persons in databases collected without a warrant under Section 702 of FISA. 

Finally, the USA FREEDOM Act will require enhanced accountability, transparency, and oversight in the FISA process.  Our bill builds on a proposal by Senator Blumenthal to provide for the creation of a Special Advocate who will advocate specifically for the protection of privacy rights and civil liberties before the FISA Court, as well as a process for publicly releasing FISA Court opinions containing significant interpretations of law.  Under the bill, public confidence in the government’s activities will also be strengthened by more detailed public reporting about the numbers and types of FISA orders that are issued.

Importantly, this measure requires new Inspector General reviews and imposes new sunset dates.  I have long believed that sunset provisions are an important tool because nothing focuses the attention of Congress or the Executive Branch like the looming chance that a law will end.  It is important to note that Section 215, which the government is using to conduct dragnet phone records collection, will expire in June 2015 unless Congress decides otherwise.  This bill also shortens the FISA Amendments Act sunset by two years, and adds a new sunset for National Security Letters.  This aligns all of these FISA sunsets so that Congress can address them comprehensively in 2015, rather than in a piecemeal fashion. 

These are all commonsense, bipartisan improvements that will ensure appropriate limits are placed on the government’s vast surveillance powers.  The American people deserve to know how laws governing surveillance authorities are being interpreted and will implicate their personal information and activities.  The American people also deserve to know whether these programs have proven sufficiently valuable as counterterrorism tools to justify their extraordinary breadth.  This legislation will help to repair that trust deficit by providing enhanced layers of transparency, oversight, and accountability to ensure that we are protecting national security while restoring protections for the privacy rights and civil liberties of law-abiding Americans.

I ask unanimous consent that the text of the bill be printed in the Record.

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