Executive Calendar

Floor Speech

BREAK IN TRANSCRIPT

Mr. LEE. Mr. President, the Constitution of the United States contains a number of constitutional protections for the citizens of our great Republic. Among the many provisions that it contains, in addition to the structural safeguards of federalism and the separation of powers, separating out power along two axes--one vertical, which we call federalism, and the other horizontal, which we call the separation of powers--the Constitution also includes a number of substantive restrictions. These are things that the government may not do, and there are penalties attached to the government's doing those things.

Among those many protections can be found the provisions of the Bill of Rights, including the Fourth Amendment of the U.S. Constitution. The Fourth Amendment reminds us that it is our right--a fundamental, inalienable right--as citizens in a free republic, to be free from unreasonable searches and seizures, and that any warrants issued under government authority have to be backed by probable cause, and any probable cause-based warrant has to include with particularity a description of the places and persons to be searched and to be seized.

This is a tradition that reaches not just back a couple of centuries, but it reaches back much farther than that and has its origins not only in our own country but in our mother country, in the United Kingdom. By the time John Wilkes was serving in Parliament in the 1760s, there had been a long-established tradition and understanding. In fact, there had been a series of laws enacted to make sure that warrants were not abused and to make sure the rights of the English subjects would not be infringed. Among other things, there was an understanding and a set of laws in place that would make clear that those conducting searches and seizures would be subject to a warrant requirement. In other words, they would lose any immunity that they would otherwise have as government officials if they didn't obtain a warrant and if that warrant were not valid.

In 1763, the home of John Wilkes was searched aggressively. John Wilkes, while serving as a Member of Parliament, had become critical of the administration of King George, and he had participated in the publication of a weekly circular known as the North Briton. Although the North Briton was not one likely to engage in excessive, fawning praise of the reigning Monarch, it wasn't until the publication of North Briton No. 45 in 1763 that the administration of King George decided to go after John Wilkes. His home was searched, and it was searched pursuant to a general warrant.

A general warrant was something that basically said, in that instance: Find out who had anything to do with the authorship and publication of North Briton No. 45. You see, North Briton No. 45 accused, among other things, King George and those who served in his government of laying aggressive taxes on the people--taxes that they knew couldn't adequately be enforced or collected without intrusive measures that would involve kicking open people's doors, rummaging through their drawers, and doing things that couldn't be justified for the use of a warrant laid out with particularity.

John Wilkes, in that circumstance, was arrested within a matter of a few weeks. He won his freedom, albeit on something of a technicality at the moment. He asserted parliamentary privilege and was released. Eventually, after becoming subjected to multiple searches using general warrants, Wilkes sued Lord Halifax and those who participated in the searches and seizures in question. He was able to obtain a large award, a large judgment consisting of money damages.

John Wilkes, at the time, became famous, really, on both sides of the Atlantic. The name of John Wilkes was celebrated in taverns, saloons, and other public places in England and in the nascent United States of America, the colonies in North America that would later become the world's greatest Republic. John Wilkes' example was something that helped to solidify a long-standing legal tradition, one that would in time make its way into our Constitution through the Fourth Amendment.

We have to remember that government is simply force. It is the organized collective official use of force. When John Wilkes and those who worked with him on the North Briton, culminating in North Briton No. 45, criticized the King too much, questioned excessively, in their judgment, the collection and imposition of taxes, the administration of King George decided they had gone too far and that it was time for John Wilkes to pay a price.

Fortunately for John Wilkes and for people on both sides of the Atlantic, John Wilkes emerged victoriously. Today, we don't have general warrants, at least nothing masquerading under that title in the United States. The fact that we have a First Amendment is a test to his vigorous defense of the rights of English subjects.

What we do have is something that ought to concern every American. We have the Foreign Intelligence Surveillance Act, which we know has been abused, and we have known for a long time is ripe for opportunities for abuse among government officials.

In fact, what we have seen is that the current President of the United States has, himself, become the target of abuse under FISA. Back in 2016 when this started being abused and when we saw the emergence of things like Operation Crossfire Hurricane, you had the campaign of a man who would become the 45th President of the United States targeted and singled out, quite unfairly, using these practices--these procedures that were designed originally for use in detecting and thwarting the efforts of agents of foreign powers.

As the name of the law implies, the Foreign Intelligence Surveillance Act is not something that is intended to go after American citizens. It is certainly not something that is intended to be used as a tool for bullying a Presidential candidate. Now that it has been used to bully and incorrectly surveil the 45th President of the United States, we need to do something about it. That is what the Lee-Leahy amendment does.

First, for a bit of background on this particular law, we have three provisions of the Foreign Intelligence Surveillance Act that expired on March 15, 2020, just a few weeks ago. We have one provision known as section 215, another provision known as lone wolf, and another provision known as roving wiretaps.

On March 16, the Senate passed a bill to reauthorize those provisions through May 30, 2020, which would give us a few weeks to debate and discuss reforms that need to happen under FISA. In order to pass this bill, the Senate entered into a unanimous consent agreement for votes on three amendments to the Pelosi-Nadler-Schiff bill passed by the House of Representatives a few weeks ago. One of those amendments is the one that I referred to a moment ago, the Lee-Leahy amendment, introduced by myself and Senator Leahy from Vermont.

Unfortunately, however, the House of Representatives never passed that short-term extension measure, so that the three authorities that I mentioned--lone wolf, roving wiretaps, and 215--have been expired now for almost 2 months.

Now, this is not for lack of trying on the part of us--the part of those of us who really want to see meaningful FISA reform. In fact, just a few days before these authorities were set to expire, I came down here to the Senate floor and I asked a series of unanimous consent requests to consider the House-passed reauthorization bill with a handful of relevant and, I believe, very necessary amendments. Unfortunately, my friend, a distinguished colleague, Senator Burr, objected.

The Department of Justice Inspector General Horowitz's December report on Crossfire Hurricane proved what many of us reformers have been saying now for years. In my case, I have been working on this and trying to call out the dangers inherent in provisions of FISA now for a decade. But what the Horowitz report in December demonstrated was that FISA really is ripe for opportunities for abuse. Inspector General Horowitz not only found evidence that the FISA process was abused to target President Trump's campaign. He found evidence that basic procedures meant to protect the rights of U.S. persons--that is to say, U.S. citizens and lawful permanent residents of the United States--were not being followed.

And so, just as we see that John Wilkes, through his publication of North Briton No. 45, solidified a preexisting set of rights available to all English subjects, we now see that President No. 45, Donald John Trump, has the opportunity to strengthen this right protected in our Fourth Amendment, harkening back to the example of John Wilkes in the publication of North Briton No. 45.

My amendment with Senator Leahy would make reforms to applications for surveillance across the Foreign Intelligence Surveillance Act, including both section 215, the authority that recently expired, and under title I, which happens to be the authority that was abused in order to surveil President Trump's campaign.

First, the amendment would strengthen the role of the friend-of-the- court provisions--the amicus curiae provisions that we adopted in 2015 in connection with the USA FREEDOM Act, which was introduced by Senator Leahy and myself back then. It would strength these amicus curiae or friend-of-the-court provisions and make them applicable in circumstances in which there are sensitivities inherently in play.

Now, these amici curiae, or friends of the court, are people who, as contemplated under the proposed legislation, would primarily be experts and would have at least some knowledge or expertise of FISA and of privacy, civil liberties, secure communications, and other fields that are important to the FISA Court. They would also be people who would have clearance to review matters of concern from a national security standpoint.

These amici are essential because, you see, the FISA Court is a secret court which, by its very design, operates on an ex parte basis, meaning without the presence of opposing counsel. You have government counsel and the judges themselves, and that is it.

The friend-of-the-court provisions, the amici curiae I am describing, provide the opportunity for the FISA Court to hear from a fresh perspective--a neutral, trusted perspective--one that comes with some expertise in national security clearance but without presenting the threat to upending the national security investigations entrusted to the FISA Court.

So that is why the amici are so necessary and so important. In the absence of opposing counsel, we have to strengthen the provisions that provide for these amici to ensure that there is some advocate somewhere in front of the court who is in a position to say: Wait a minute. What happens if we do this? Wait a minute. Is this really what the law authorizes? Wait a minute. Isn't there a constitutional concern implicated here, especially where they are dealing with the rights of American citizens.

The December 2019 inspector general report on the surveillance of President Trump's campaign staffer Carter Page demonstrates the significant need for an outside expert legal advocate, especially when a FISA application involves a sensitive investigative matter, like the surveillance of a candidate for public office or an elected official or that official's staff.

If the Lee-Leahy amendment were in statute, it would have required the FISA Court to appoint an amicus in the Carter Page case. If an amicus had been appointed in that case, would she have raised some of the issues that we now see regarding the credibility of the Steele dossier? Well, it is quite possible. In fact, I think it is quite likely. I think it is almost unimaginable that had there been an amicus curiae present in the FISA Court at that moment, somebody--likely, the amicus--would have said: Wait a minute. We have got a problem. Wait a minute. You have got evidence that is unreliable. Wait a minute. You have got huge credibility problems with the evidence that is backing up what you are asking for.

Our amendment would require the FISA Court to appoint an amicus when an application involves ``sensitive investigative matter,'' such as the surveillance of candidates and elected officials or their staff, political organizations, religious organizations, prominent individuals within those organizations, and domestic news media.

One of the arguments made by those who oppose FISA reform is that the appointment of an amicus would somehow slow down the surveillance and the FISA order application process, which, so the argument goes, could then harm our national security in those instances where there could be an imminent attack. Anytime this argument is made, it is important for the American people to listen and listen carefully. It is an important argument. It is not one that we want to treat lightly. At the same time, we have to remember the immense harm that has been inflicted, not only on our own society but elsewhere, when people simply suggest: Don't worry about this; it is a matter of national security. Don't worry about it; we have the experts covering it. Don't worry about it; your liberty is not to concern you.

We know the risk. We know that we have to ask the difficult questions, and that is what we are doing here.

In any event, the argument doesn't work here. The argument falls apart under its own weight here, you see, because our amendment allows for the FISA Court to have flexibility. In fact, the FISA Court, under the amendment, may decline to appoint an amicus if the court concludes it would be inappropriate to do so under the circumstances. All it has to do is make that finding.

Is this too great an intrusion on the ability of the U.S. Government to collect information on U.S. citizens? I think not, especially as here we are dealing with this sensitive investigative matter, one involving an elected official or a candidate for elected office or religious officials or media organizations.

We know in our hearts that these are areas where our foreign intelligence surveillance authority ought to give way, ought to at least recognize the rights of individual Americans.

Our amendment also provides the amicus with more access to information regarding applications and requires the government to make available the supporting documentation underlying assertions made in applications if requested by the amicus or by the FISA Court itself.

Now, this information is, to be sure, required by the FBI's internal operating procedures, including its so-called Woods procedures, to be maintained in a series of documents known collectively as the Woods files.

But the FBI's failure to correctly maintain the supporting documentation or, in some cases, even to assemble it in the first place--the documentation underlying these FISA applications to surveil U.S. persons, that is--was itself the subject of the inspector general's most recent memorandum to FBI Director Christopher Wray. That memorandum proved, among other things, that the government's failure to provide all of the evidence, especially evidence that undermined the government's case before the FISA Court, when considering the application to surveil Trump campaign adviser Carter Page, was not an isolated accident. Quite to the contrary, after sampling 29 FBI applications for FISA surveillance of U.S. persons, the inspector general, Mr. Horowitz, found an average of 20 errors per application, with most applications having either missing or inadequate Woods files, leading the inspector general to conclude: ``We do not have confidence that the FBI has executed its Woods procedures in compliance with FBI policy.''

This is absolutely unacceptable in any free republic, but especially in ours, with the existence of the Fourth Amendment.

We are not talking about the failure to create or maintain some obsolete piece of paperwork just for the sake of having it. No, no, no, this is much more than that. And we are not talking here about exculpatory evidence being withheld as to suspected foreign terrorists. These are applications to surveil U.S. citizens and lawful permanent residents, who themselves have constitutional rights and also have an expectation that their government will not secretly spy on them, in violation of that which is rightfully theirs under the Constitution of the United States.

So you can't look at this and credibly, reliably, say: It is OK. Let the FBI take care of it. The FBI is working on it.

We have been hearing that for years. I have been hearing that for 10 years--the entire decade that I have been at this business. And what has happened? Well, what has happened is that we have seen time and again that there have been abuses of the very sort that many of us have been predicting for a long time would inevitably and repeatedly arise in the absence of reform.

This doesn't require us to undertake a dismal view of humanity. No, it is not that at all. It is simply that government is best understood as the organized, official collective use of force, officially sanctioned as part of a government. And, as James Madison explained in Federalist 51, if men were angels we wouldn't need government. If we had access to angels to run our government, we wouldn't need rules about government.

But we are not angels, and we don't have access to them. So, instead, we have to rely on humans. Humans are flawed. They make mistakes, and they also sometimes decide for nefarious or political or other reasons to flout the law--hence the need for the night watchman, hence the need for rules that restricts their ability to do that.

So I find it entirely unsatisfactory when people say: Just let the FBI deal with this, because, first of all, they haven't dealt with it. They haven't dealt with it even as abuses have become more and more known under various provisions of FISA and even as we are still coming to terms with language that was adopted nearly two decades ago that itself was overly broad at the time and has been abused since then.

No, we are not going to just trust that an organization that is able to operate entirely in secret, with the benefit of protection of national security laws, with the benefit of over-classification of documents--we are not simply going to assume lightly that they are going to fix it, because they haven't and because they won't and because they don't want to.

I understand why they might not want to. All of us can appreciate that when we do a job, if somebody else adds requirements to that job, we might be naturally resistant to it. But that doesn't mean that we don't need to do it here. That doesn't mean that our oath to uphold, protect, and defend the Constitution of the United States doesn't compel us to do so here.

We know that the FBI is not going to fix it because the FBI has in the past adopted procedures designed to prevent this kind of manipulation, this kind of chicanery from arising, including, most notably, the Woods procedures. Yet we know that the Woods procedures have been openly flouted.

So can we walk away from this and pretend that the 45th President of the United States didn't have his own rights abused, his own campaign surveilled abusively by the FBI itself? No, we can't. And I don't know anyone--Democrat or Republican, liberal or conservative or libertarian or something else--who could look at that and say: Yes, that makes a lot of sense. It makes a lot of sense that we should just leave unfettered, unreviewable discretion in the hands of those who are able to operate entirely in secret.

The Lee-Leahy amendment would require that the government turn over to the FISA Court any and all material information in its position, including information that might undermine its case as part of the FISA application. As I said earlier, this information would be made available to the amicus curiae upon request.

As an added protection, our amendment would require any Federal officer filing an application for electronic surveillance or physical search under FISA to certify that the officer has collected and reviewed, for accuracy and for completeness, supporting documentation for each factual assertion contained in the application.

If we are going to require people to go to the FISA Court at all to get an order, if we are going to call it a court, ought we not require that such evidence be assembled and at least be made available to those whose job it is to make sure that the job is actually being done?

The Lee-Leahy amendment also requires these officers to certify in each application that they have employed accuracy procedures put in place by the Attorney General and the FISA Court to confirm this certification before issuing an order.

Finally, the Lee-Leahy amendment requires the Department of Justice inspector general to file an annual report regarding the accuracy of FISA applications and the Department of Justice's compliance with its requirements to disclose any and all material evidence that might undermine their case.

Now, while I have a lot of ideas for reform, many of which are included in the USA FREEDOM Reauthorization Act that Senator Leahy and I introduced a couple of months ago, we were limited in this circumstance for our purposes to just one amendment to the Pelosi- Nadler-Schiff bill. That is this amendment, the one that I have been describing, the Lee-Leahy amendment.

We believe that our amendment is a very measured approach to enacting those reforms that we believe to be most essential to protecting the rights and the privacy of Americans from a system that, by its very nature and, in some instances, by design, is ripe with opportunities for abuse. It is not perfect, but it will go a long way, if we pass it, toward forestalling this kind of abuse.

We have to remember that although we live in the greatest Republic ever known to human beings and although our rights are, by and large, respected in this country, we are by no means immune to the type of abuse that can take hold in any system of government, especially a system of government with a whole lot of resources at its disposal to gather information, including efforts to gather information on that government's own citizenry.

If we remember, about 45 years ago, there was a committee put together, headed by a Senator from Idaho named Frank Church, that looked at abuses of telephone surveillance by the government and concluded that in basically every administration dating back to the rise of the common usage of the telephone, our intelligence-gathering resources within the United States had been utilized to engage in what was essentially political espionage.

Since the late 1970s when the Church Committee issued its report, we have had exponential growth in the ability of government and the ability of everyone else, for that matter, to obtain and process data and information. In most ways, it has been a real blessing. It is a great thing.

It is also important for us to keep in mind the extent to which our papers and effects are no longer found exclusively within physical file cabinet files within someone's home or office. In many instances, they can be found elsewhere in electronic form.

Our security and our liberty need not and ought never to be viewed as irreconcilably at odds with each other. Many civil liberties and privacy experts joined together in an effort known as the PCLOB a few years ago--the Privacy and Civil Liberties Oversight Board--and concluded a few years ago that our privacy and our liberty are not at odds with each other. In fact, our privacy is part of our liberty. We are not truly free unless our personal effects and our private information can belong to us and not simply be open game for the government.

It is sad and tragic that in order for this to come to light, it took an assault on freedom so bold and so shameless as to loop in the President of the United States. With this and other revelations that have come to light in recent days and weeks and months and over the last few years, we can't forget that these entities are still run by human beings with their own political views, with their own agendas. And in some cases, unfortunately--rare cases, I hope--people who are charged with protecting the people and their liberty may in some cases be inclined to be at odds with it.

It is unfortunate that the 45th President of the United States has had, quite tragically, to become the victim of this. But I ask the question, what if your information were on the line? What if you had been targeted--maybe for political reasons, maybe for reasons that had nothing to do with politics, maybe for reasons that just had to deal with a personal vendetta someone had against any American. It is far less likely that the abuse would ever have come to light.

In this circumstance, it did come to light. We can't ignore it, nor can we pretend that it couldn't happen to any one of us--and I don't mean as Members of the U.S. Senate; I just mean as Americans. In fact, each and every one of us is less capable of standing up to this and less likely to discover the abuse in the first instance. Not all of us happen to be the President of the United States.

I am grateful that President Donald J. Trump has been willing to speak truth to power and has been willing to call out the flagrant abuse of FISA and of other procedures within the government. It is our obligation, it is our solemn duty, and it is my pleasure to do something about it. The Lee-Leahy amendment does something about it, and I invite all of my colleagues to join me in supporting it.

BREAK IN TRANSCRIPT

Source