05.11.15

Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On the USA FREEDOM ACT of 2015

Section 215 of the USA PATRIOT Act expires in a matter of weeks.  Senator Lee and I have a bipartisan bill, the USA FREEDOM Act, that would end the use of Section 215 to authorize the bulk collection of Americans’ phone records, and replace it with a more targeted program.  It also would enact other important reforms to bring more accountability and transparency to government surveillance.  The Speaker of the House of Representatives is bringing that same bill for a vote in the House on Wednesday. 

Last week some opponents came to the floor to voice their opposition.  They claimed that ending this bulk collection program would somehow put our national security at risk, and that a bulk collection program like this could somehow have prevented the September 11 attacks.  But the facts are not on their side.  According to the headline of a recent National Journal story, these opponents of reform have made “dubious claims in defense of NSA surveillance.” 

I agree these claims are dubious, and I want to set the record straight.  I ask unanimous consent that the National Journal story dated May 8, 2015, and an analysis by the Center for Democracy and Technology of similar claims, be placed in the record.

One Senator stated on the Senate floor last week, “If this program had existed before 9/11, it is quite possible we would have known that 9/11 hijacker Khalid Al Mihdhar was living in San Diego and was making phone calls to an Al Qaeda safe house in Yemen.”  Another seemed to suggest that the bulk collection program would “have prevented 9/11.”

When I was chairman in the last Congress, the Senate Judiciary Committee held six hearings to examine revelations about government surveillance activities.  At one of those hearings, I asked former counterterrorism official Richard Clarke, who was working in the Bush administration on September 11, whether the NSA bulk collection program would have prevented those attacks.  He testified that the government had the information it needed to prevent the attacks, but failed to properly share that information among federal agencies.

Senator Bob Graham, who investigated the September 11th attacks as head of the Senate Intelligence Committee, likewise has said that “there were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar.”

The other claim that has been made repeatedly over the past few days is that, as one Senator put it, the bulk collection of Americans’ phone records is “very effective at keeping America safe.”  Another stated that the USA FREEDOM Act would “eliminate the essential intelligence this program collects.”

But numerous national security experts also have concluded that the NSA’s bulk collection program is not essential to national security.  The President’s Review Group on Intelligence and Communications Technology, which included two former national security officials, stated:  “The information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”

Former Acting CIA Director Michael Morell testified to the Senate Judiciary Committee that the Review Group’s recommendation to end the government’s collection of that data, and instead allow the government to search phone records held by the telecommunications providers, would not add a substantial burden to the government.  That is precisely the approach of our bipartisan USA FREEDOM Act. 

Last year, the Director of National Intelligence and the Attorney General supported a prior version of the USA FREEDOM Act, which also ended bulk collection under Section 215 and replaced it with a more targeted phone records program.  The Attorney General and the Director of National Intelligence said that our bill “preserve[d] essential Intelligence Community capabilities.” 

These individuals are not newcomers to the issue of national security.  They understand the threats to our nation.  They do not have a political motive.  They have the best interests of our nation and its values in mind when they tell us that we can end the dragnet collection of innocent Americans’ phone records and keep our country safe. 

The USA FREEDOM Act does not just end NSA’s bulk collection program under Section 215.  It also fills other gaps in our intelligence capabilities.  It ensures that the government can quickly obtain business records – including phone records – in emergency situations.  It ensures that if a foreign terrorist who poses a serious threat comes into the United States, the government does not have to stop its surveillance while it seeks emergency wiretap authorization from the Attorney General.  It ensures that the government need not terminate FISA surveillance on a foreigner who temporarily travels outside the United States.  And it ensures that the FBI has the tools it needs to investigate individuals who are facilitating the international proliferation of weapons of mass destruction on behalf of a foreign government or terrorist organization.  These provisions were requested by the FBI and by the House Permanent Select Committee on Intelligence.  They were not part of the bill that was filibustered in the Senate in November.

As a final matter, it is notable that there has been not a single Senate committee hearing on surveillance reform or the expiring provisions in the five months of this new Congress under Republican leadership.  There has been zero committee consideration on the bill that Senator McConnell has now brought directly to the Senate calendar that would simply extend these expiring provisions.  I recall the promises that under new leadership the committees would work through regular order, but that has not occurred even though it was apparent to all last year that we would need to grapple with long-overdue reforms.  This lack of leadership or any committee process is also despite the fact that the leader and chairmen of the relevant committees would not even let us debate the USA FREEDOM Act last year, in part because it had not gone through committee.  As the process moves forward this year, we should not be hearing complaints about lack of process from those who did not provide it.

There is no question that the USA FREEDOM Act contains far-reaching surveillance reforms.  But the most high-ranking intelligence officials in the country have endorsed its approach because it is a responsible bill.  It protects Americans’ privacy, and keeps them safe.  The Senate should take up the bill once the House passes it this week.

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