Richard Burr

Mr. BURR

Mr. BURR. I ask unanimous consent for 1 additional minute before the Senate adjourns.

Mr. BURR. My question to the Senator is this: Did he know the FISA Court existed?

Mr. BURR. It is a simple yes or no answer. Did the Senator from Oregon know the FISA Court existed?

Mr. BURR. Well, no, you don't. I asked the question, but I did not yield the Senator from Oregon the time. Mr. President, regular order. I don't want to take any more of the Senate's time, and I certainly don't want to take any more of my colleague's time. The fact is that he knows the court existed. Congress has reauthorized section 215 of the PATRIOT Act. The FISA Court has reauthorized it. They reauthorized it. They are asked every 90 days, and they ruled 41 times to allow section 215 to exist.

Mr. BURR. I will be happy to yield for a question.

Mr. BURR. I actually do know that.

Mr. BURR. Mr. President, I ask unanimous consent that the Senate remain in session for at least 5 additional minutes while I speak.

Mr. BURR. Mr. President, I couldn't let the statements that were just made go without a degree of fact check. There is no secret court. A secret court means we don't know it exists. Every Member of the U.S. Senate and every American knows that the FISA Court exists. The FISA Court exists because when the Senate of the United States takes up classified, top-secret legislation, we shut these doors, we clear the Gallery, and we cut the TV off because it can't be heard in public. As a matter of fact, every court in the country operates in secret when they have sensitive information that can't be shared. I wish my colleague would stay. The information can't be shared because it can't be public. There are some things that don't meet that classification. And to get up here and talk about secret courts and secret laws--we pass the laws. The courts enforce the laws, and they are challenged. We have committees and Members who do oversight. It is unfactual to stand on this floor and say we have secret courts and secret laws. That is why the Senate and the House made a mistake this week. If the Senator were really concerned about privacy, my friend would be on the floor arguing that we eliminate the CFPB, a Federal agency created--not even funded by Congress--that collects every piece of financial transaction on the American people today. They get every data point from credit card companies and the credit bureau, they search the student loan information, and they download all of that into metadata within the CFPB. No Member is down here complaining about that. That is the greatest intrusion of privacy on the American people that could ever happen. It was known upfront, so they made sure it wasn't funded by Congress and made sure we didn't have any oversight responsibilities. That is why they put it under the guidance of the Federal Reserve. The President of the United States could have ended section 215 at any time. He had the power. But the President understands that this program works and that there was public pressure to move this data from the NSA to the telecom companies, which is probably a greater concern about privacy than to have this controlled and supervised within the NSA. The Senator mentioned Edward Snowden--a traitor to the United States. My colleague held him up as though he were a prize because he had come out with this publicly. What do the American people think when we come out here and take some of the most sensitive information and suggest everybody ought to know it? The American people look at us and ask us to keep them safe and do whatever is within the law to accomplish that. And there is one thing that has never been contested on section 215: It lived within the letter of the law or it lived within the letter of the Presidential directive. We had a debate, and that is behind us. But to come out here and suggest that there is a secret court and that there are secret laws and that yesterday they eliminated all of that--no, they didn't. No administration in their right mind is going to publicly release those classified and top-secret documents that go to the FISA Court because it would put Americans and foreigners at risk. I have tried to explain to my colleagues that terrorists are not good people. We can't hug them and all of a sudden change their intent. They want to kill people. And in most cases, we don't find them through association with Boy Scouts; we find them by actually putting agents into a system where they work sources and collect intelligence. Why would we go out and give terrorists the roadmap of how we do things? I will end on this. As everyone can tell, when somebody gets up and talks about something that just is not true, it can't go without correction. What we have done in the last 2 months is given every terrorist in the world a roadmap as to exactly how the United States picks up individuals in the United States who might communicate with terrorists abroad. I will say for the last time what section 215 did. Section 215 was a database that stated the NSA--the only way that any number could ever be queried was if we had a foreign telephone number that we knew was a terrorist telephone number, we could go to the FISA Court and say: We would like to test this against telephone numbers--not Americans; telephone numbers. It was a database that only had telephone numbers, the date of the call, and the duration of the call. The court would give us permission when we were looking to see if there was an American telephone number that actually talked to a known terrorist. And if it did, we turned it over to the Federal Bureau of Investigation and said: You might want to look at this person. They then went through a normal court process. If they wanted to find the person's name and get additional information, that is what they did. Some called that an invasion of privacy. I will tell everyone that is not the courts' interpretation. The courts ruled that when my telephone information goes to a telephone company, I have no expectation of privacy. None. That is the law. The reality is that we are collecting telephone numbers. It has no personal identification on it. I don't know how it would be an invasion of privacy when we don't know who it is. And that threshold is met when the Bureau goes to the court and says they have a different concern about the individual, and the court will then rule on it. But to believe that the FISA Court does anything different from the Senate of the United States or different from any court in the country when they are faced with classified or secret information--and that is, they shut it down--is wrong. It is just plain wrong. It is important for the American people to understand that there are ramifications to stupid decisions, even by Congress. It is my hope that this program will work as it is currently designed. But there is no mistake that we have given terrorists every reason to never use a cell phone or a landline again, especially those who are in our country and intend to carry out some act like the gentleman from Boston did yesterday. He pulled a knife on two officers who just wanted to talk to him because he had been under 24/7 surveillance for days. If the news reports were correct, he intended to behead a Boston police officer. I think the American people want our law enforcement folks to be in that position. If we take away their tools, we will not be able to do it. What we did yesterday was we took some of the tools away. We didn't take all of them away. My hope is that this body will think clearly in the future about the tools we provide to allow this to happen. I yield the floor.

Mr. BURR. The Senator asked his question, and I answered, and I still control the time. Thank you. Now, clearly, it is evident that if we say something wrong enough times, people start to believe it. It is not a secret court. It is not a secret law. The President knows about it, and Members of Congress know about it. We have voted on it. We know what goes on. Fifteen Members of this body have oversight responsibility over the program. We do our job, and we do it well. Now, we may disagree with what tools we use to try to defeat terrorism in this country, and clearly the Senator and I have a big canyon between us. But I have to tell my colleagues that America expects the Senate and the Congress of the United States and the President of the United States to defend them. I am going to continue to do everything I can to make sure law enforcement and the intelligence community have the tools to do their job because their job is a big one and the threat is big, and for people to ignore that today is irresponsible. I yield the floor.

Mr. BURR

Mr. BURR. Mr. President, there are always two sides of every picture, two sides of every story. I have tremendous affection for Ranking Member Leahy. We are friends. We look at this issue differently. I have deep respect for Senator Blumenthal, Senator Wyden. The fact is I look at history a little bit differently and I look at the future a little bit differently because I think what the American people want to believe is that America is doing everything possible to keep them safe. I think, at the end of the day, that is the single most important issue: Are we doing everything we can to keep America safe? Now, Senator Wyden opposes section 215. He talked about changes. He is opposed to section 215. He is a member of the committee. I know exactly where he stands, and I respect it. The fact is that 215 is a very effective program. My colleagues are right. It was not a public program until Eric Snowden, a traitor to the United States, published a lot of information about what the intelligence community does. This was one small piece. Eric Snowden put the lives of Americans and foreigners at risk in what he released. You cannot put the genie back in the bottle, but you also cannot hide from the fact that this program enabled us to thwart terrorist attacks here and abroad. I quoted the four of them yesterday. This program itself was what we were able to use post the Boston Marathon bombing to figure out whether the Tsarnaev brothers had an international connection that directed that horrific event at that marathon. Yes, the FISA Court operates in secret. Why? It is the same reason the Senate sometimes clears the Galleries, shuts the doors, cuts off the TV, and as an institution only cleared people here--classified and top secret information--can make decisions. Therein describes the FISA Court. They always deal with classified and top secret documents. They are called on a minute's notice. No other court in the world responds like that. There is a FISA judge on the bench 24/7, 365 days a year. It rotates. These are the best of the best of the judicial system around the country, picked by the Chief Justice of the Supreme Court. Could it be open? Sure. But we would then expose either classified and top secret documents or we could not use the documents to make the case to the FISA Court that we have a suspected individual of terrorism and we need the authority to see who that person is. Well, we have heard a lot about the FISA Court. A lot of it is true. The people who serve on the bench are heroes because they take the toughest cases America is presented with, and they rule on them in the most judicial way they possibly can, demanding, over 25 percent of the time, that an application be resubmitted after changes because they did not think it had met the threshold. Much has been focused on the changes to the amicus language or the ``friend of the court.'' This is not a normal court. When the choice is to go to the FISA Court, it is because we are concerned. We are concerned about an imminent threat. Let me explain, once again, for my colleagues and for the American people what the section 215 program is. It is a program where at the NSA we collect raw telephone numbers from telephone companies--numbers, not names. We have a number that does not have a person's name with it. They are deidentified. We collect a number, the date the call was made, and the duration of the call. For us to trigger any search or we call it query of that database, we have to have a foreign telephone number that we know is a telephone number used by a terrorist. Those are all the components of the section 215 program. That is it. We can have a database, but without a foreign terrorist telephone number, we cannot search the database. If we have a foreign terrorist telephone number and no database, which is where we are moving to--I concede this legislation is going to move, and we are going to transition over to hundreds of telephone companies. Now, rather than have a number of people controlled and supervised within the NSA to carry out these queries, we are going to have telephone company employees carry out a query with a known foreign terrorist's telephone number against all of the numbers in their database. Again, hopefully, they will not tie a person's name to it. We do not even get a person's name at the NSA. The only people who should be worried are Americans who have actually had a communication with a known terrorist abroad. Now, I think when the American people hear me talk about this, up to this point they are saying: That is a good thing. We want to know if somebody here has talked to a terrorist because we want to be kept safe. Well, not only are we shifting the database out of the NSA over to the telephone companies, which means our response time is going to be delayed--let me remind everybody that whether we search the meta database at NSA or whether we search the database at the telephone company, we first have to go to the FISA Court and get a court order that says: You have the authority to do this based upon what you have presented the court. Now we have to go to the telephone companies, and in a timeframe that is conducive to them, they are going to search their database for a known terrorist's cell phone number, and now we are relying on hundreds of companies to search their database in a timely fashion and get back to us because we are trying to be in front of a threat versus behind a threat. In front of a threat, it is called intelligence; behind a threat, it is called an investigation. When we thwarted the New York City subway bombing, we were in front of the threat. That was intelligence. When we reacted to the Boston Marathon, that was an investigation led by the FBI, not the NSA. So when you inject this new requirement for a friend of the court-- and I would disagree with my colleagues. This is not a voluntary thing for the FISA Court. It is something that is available to the FISA Court today if they choose to have somebody come in to counsel them on something. This is mandatory. In the legislation, it says ``shall.'' The court shall set up a panel. The court shall choose a friend of the court. A friend of the court is not there to facilitate a timely processing of information. Let me remind everybody that we are dealing with the safety of the American people. They always stress this at the end of the conversation: We want the confidence and trust to be rebuilt that we are protecting our homeland. If you are moving a database, you are making it slower. Now you are setting up a mechanism inside to slow it down even more. What we are doing is shifting from intelligence gathering to investigations. Nobody knows how long it is going to take from the time we present the FISA Court with a foreign terrorist's telephone number before we actually complete a search process within this new database. I happen to be the one behind a 12-month transition versus a 6-month transition, and it was all stimulated off of exactly the same person whom Senator Blumenthal or Senator Wyden quoted. They said the Director of the NSA said: We think we can do this in 6 months. Well, I am telling you, if I am the general public in America and I am concerned about my safety and the people who are supposed to be protecting me say ``I think I can do this in 6 months''--I would like somebody to say ``I am absolutely 100 percent sure I can do it in 6 months.'' But they think they can do it in 6 months. There is the reason for a year. There is the reason for a longer transition period. If privacy were really the concern--and everybody has come down and said: I want to protect the privacy of the American people. Let me point out a couple of things. No. 1, we didn't collect anybody's name in this program. It is hard to intrude on somebody's privacy when you didn't collect their name. We collected the number, the date of the call, and the duration of the call. That is it. Anything else that turns into an investigation is the Federal Bureau of Investigation going to a court and saying: We have to have more information because we know the President of the Senate is a potential threat to us. And then more information can be found out, such as his identity and anything else that might be part of the investigation. But from the standpoint of the NSA, those are the only things we have--a telephone number, a date, and the duration of the call. If privacy is the concern, I don't think we have breached it. As a matter of fact, since this program has been in existence, there has not been one case of a breach of anybody's privacy--not one. If they were truly concerned about privacy, they would be on the floor today with a bill abolishing the CFPB, which is a government agency, a government entity that collects every financial transaction of the American people by name, by date, by amount, by transaction. But they are not down here doing that. Why? Because they don't like the fact that the FISA Court operates in secret. They don't think there should be classified or top-secret documents. They believe everything should be transparent. Well, let me say to my colleagues, my friends, and to the American people that we have done more over the last month to destroy the capacity of this program because of the debate we have had. There is not a terrorist in the world now who doesn't understand that using a cell phone or a land line is probably a pretty bad thing. It probably puts a target on their backs. We have done a great job of chasing people to alternative methods of communication, and I would suggest to you that is not making America any safer. If anything, maybe we should have had this debate in secret simply so we wouldn't give them a roadmap as to what we do. Therein lies the reason that there are some things on which I think there is a determination made by the executive branch and by the legislative branch and I think in many cases at the dining room tables around America where Americans say: You know, you don't need to share everything with me. I am tired of hearing things on the nightly news that I think shouldn't be discussed. This probably happens to be one of them because it doesn't make us more safe, it makes us less safe. I will end the same way Senator Blumenthal did. People want to believe--question mark. I think people want to believe we are doing everything we possibly can to strengthen our national security, to eliminate the threat of terrorism here and abroad. My fear, quite frankly, is that this bill doesn't accomplish that. Again, I have deep affection for those whose names are on the bill and for what they believe is the intent. But I think that at the end of the day the only responsible thing to do right now is to accept three amendments--one, a substitute, and two, a first-degree and a second- degree amendment. Let me say briefly that the substitute incorporates two changes. One change is that the telephone companies would be required to notify 6 months in advance of any change in their retention program--in other words, how long they hold the data. I have received calls from both big telecom companies today, and they have both said: We have no problem with that. The second one would have the Director of National Intelligence certify at the end of the transition period that technologically we can make the transition. I don't find anybody who has really objected to that. Then there is an amendment that extends the transition period from 6 months to 12 months. There have been people who object to that. I would only tell you we have a difference of opinion. They are willing to trust the NSA on their ability to make the transition in 6 months. I think that is ironic because the reason we are here having this debate is because they have made us believe we can't trust NSA. Yet, they are willing to trust the NSA relative to a transition time that is sufficient to accomplish the transition. Let's err on the side of caution. Let's do it at 12 months. If they can do it sooner, then let them petition us, Congress can pass it, and we will turn to it sooner. But let's not get to 6 months and be challenged with not being ready to make that transition. The last one is a change to amicus language. Clearly, that is the biggest difference we have. I would say to my colleagues that you either vote for the amendment or you vote against it. If you vote for it, you will delay the time it will take for us to connect the dots between a foreign terrorist's telephone number and a domestic telephone number they might have talked to. If that doesn't bother Members and it doesn't bother the public, I am all for giving the American people what they want. But I think most American citizens sit at home and say: You know, the faster you do this, the safer I am. I have a responsibility first and foremost to the protection of the American people. It is in our oath. I also share something with the Presiding Officer and my colleagues who are here--to protect the rights and liberties of the American people. And as the chairman of the Intelligence Committee, I don't think we have in any way infringed on that. I am now in year 21. I have come a lot closer to the line than I ever dreamed when I came to Congress in 1995. But I also never envisioned an event as horrific as 9/11. I never envisioned an enemy as brutal as ISIL or Al Qaeda or the Houthis. I could go on and on. What has changed since 9/11? On 9/11, we had one terrorist organization that had America in its crosshairs. Today, we have tens to twenties of organizations that are offshoots of terrorist organizations that would like to commit something right here in the United States. The threat hasn't become less; it has become more. We are on the floor today talking about taking away some of the tools that have been effective in helping us thwart attacks. It is the wrong debate to have, but we are here. I would only ask my colleagues to show some reason. Extend by 6 months the transition period. Make sure it doesn't take longer to search these databases. Make sure we are ready for the telephone companies to carry out the searches because there is one certainty on which I think I would find agreement from all of my colleagues here: The terrorists aren't going away. America is still their target. No matter what we say on this floor, we are still in the crosshairs of their terrorist acts. Only by providing the intelligence community and the law enforcement community the tools to carry out their job can they actually fulfill their obligation of making sure America is safe well into the future. I yield the floor.

Mr. BURR

Mr. BURR. Mr. President, I thank my good friend, the Senator from Maine, a committed member of the Committee on Intelligence, and one who has been vitally involved in the oversight of section 215. I think what has been left out of the debate is that 15 Members of the U.S. Senate have actively carried out oversight. This is probably one of the most looked at programs that exists within the jurisdiction of the Intelligence Committee. There are a couple more that probably get more constant attention, but this is not a program that is used that frequently. I think that is the key point. I wish to reiterate some of the issues Senator King brought up. We are not listening to people's phone calls. There is no content collected. This program expired last night at midnight. That means the database cannot be queried, regardless of if we find a terrorist telephone number. I think it is important to remind my colleagues and the American people that this is all triggered by a nonterrorist number outside of the United States. Now, in the case of the Tsarnaev brothers, we had the telephone number outside the country, and we wanted to see whether the connection had been made, so there was direction in that case. But this is triggered by not just going through the database and looking at who Americans are calling and trying to figure something out, it is triggered by a known foreign terrorist's telephone number, and we searched to see whom they may have contacted in the United States. Now, the FISA Court only allows this data to be queried when there is a reasonable articulable suspicion--or RAS, as we call it--based on specific facts; that the basis for the query is associated with a foreign terrorist or terrorist organization. If the NSA can't make that case to the courts, that RAS is never authorized to go forward. The NSA is not searching through records to see whom ordinary Americans are calling; they are only looking for the terrorist links based upon the connection to a phone number known to be a terrorist phone number. Now, my good friend, the Senator from Maine, spoke about the Boston bombings. Let me go back to some comments the Director of the FBI, Director Mueller, made earlier last year. He testified in the House that had the program been in place before September 11, 2001, those attacks might have been derailed. Why? Well, according to the Director of the FBI, before 9/11, the intelligence community lost track of al- Mihdhar. Al-Mihdhar was one of the two who lived in San Diego, and he was tied to a terrorist group in Yemen. We lost track of al-Mihdhar, but we knew the terrorist organization in Yemen. So if we would have had this program in place, we could have targeted the telephone numbers out of the cell in Yemen to see if they were contacting anybody in the United States--and they were contacting al-Mihdhar--and we could have put the connection together and found al-Mihdhar after we lost him in flight to the United States. I think Director Mueller said we saw on 9/11 what happens when the right information is not put together. If this program had been in place, then it could have provided the necessary link between the safe house in Yemen and al-Mihdhar in San Diego. For those who claim this program served no purpose prior to 9/11, here is the Director of the FBI saying it would have. Then we have the Boston Marathon bombing, and the program told us there was no terrorist link. Then we come to the 2009 New York City subway bombing plot. In early September 2009, while monitoring the activities of an Al Qaeda terrorist group in Pakistan, NSA noted contact from an individual in the United States who the FBI subsequently identified as Colorado-based Najibullah Zazi. Section 215 provided important lead information that helped thwart this plot. I wish to say this one more time to my colleagues: This program works. It has worked. It has stopped attacks because we have been able to identify an individual before they carried out the attack. Now, the threshold for my colleagues who say this program has not served any useful purpose, meaning we have to have an attack to be able to prove we thwarted an attack--that is not why we have this program in place. We are trying to get ahead of the terrorist act. In the case of the subway bombings in New York, we did that in 2009. There was a Chicago terrorist investigation in 2009. David Coleman Headley, a Chicago businessman and dual U.S. and Pakistan citizen, was arrested by the FBI as he tried to depart Chicago O'Hare Airport to go to Europe. At the time of his arrest, Headley and his colleagues, at the behest of Al Qaeda, were plotting to attack the Danish newspaper that published the unflattering cartoons of Prophet Mohammed. Section 215 metadata analysis was used along with other FBI authorities to investigate Headley's overseas associates and their involvement in Headley's activities. I am not sure how it gets any clearer than this. We have an individual who is radicalized, who intends to carry out an act, who has overseas connections that we never would have understood without section 215. I think that as my good friend from Maine knows, when we connect one dot, typically it leads to another dot and that leads to another dot. To say to law enforcement, to say to our intelligence community that we are not going to give you the tools to connect these dots is to basically stand up in front of the American people and say that we are supposed to keep you safe, but we are not going to do that. So I thank my good friend, the Senator from Maine, for his support. I say to my colleagues, I hope we are going to be able to reinstitute this program shortly after lunch tomorrow. Hopefully, we will be able to do it with three amendment votes and a final passage vote. One will be a substitute to the full bill. It has all the USA FREEDOM Act language, with two changes. It would require the telecom companies to provide 6 months' notification of any change in the retention program of their company. That language was the suggestion of the Senator from Maine, and it works extremely well. The second piece of the substitute amendment will deal with the certification of the Director of National Intelligence that we have made the technological changes necessary for the telecom companies to actually query that data they are holding. There will be two additional amendments. The first one will be to change the transition period from 6 months to 12 months, and I think the Senator from Maine would agree with me that--I would like to see it longer--anything longer than 6 months is beneficial as we talk about the safety and security of the American people. The last amendment is the change in the amicus language or the friend of the court language. I will get into that in a little while. The current bill says the courts shall--``shall'' means they will do it. The administrator of the court has provided us with language that they think will allow the court the flexibility, when they need a friend of the court, to solicit a friend of the court in FISA Court but not require them, with the word ``shall,'' to always have a friend of the court. Again, I think, as my good friend from Maine knows, the process we go through in section 215 through the FISA Court in many cases is an accelerated process. Any delay can defeat the purpose of what we are doing; that is, trying to be in front of an attack versus in the back of an attack. I say one last time for my colleagues, NSA, under the metadata program, collects a few things: They collect the telephone number, they collect a date, they collect the duration of time that the call took place. They don't get content. They don't get the person's name. They have no idea whose number it is. Were they to tie a domestic number to a foreign terrorist number, that then goes directly to the FBI because they say to the Bureau: We have a suspicious American because they have communicated with a terrorist, at which time it is out of the 215 program for the purposes of investigation of the individual. If there was ever a need to find out whose telephone number it was or if there was a need to see content, that would be sought by the FBI under an investigation through the normal court processes that are not part of the 215 program. Section 215 is limited to a telephone number, with no identifier for whose number it is, the collection of the date, and the duration of the call. I think the Senator from Maine would agree with me. I would just as soon see the program stay at NSA, but that decision is a fait accompli. It is going to transition out. We would just like to make sure we have enough time so this can seamlessly happen versus an artificial date of 6 months and not knowing whether it can happen. I thank the Senator from Maine. Mr. President, I yield the floor.

Mr. BURR. I will be happy to yield.

Mr. BURR. Mr. President, I rise while my good friend from Florida is on the floor to say that I wish I could have a magic wand with which I could collapse this time. But as he knows, under Senate rules, one Member can demand for the full 30 hours, and we are in a process like that. My hope is that there will be accommodation as we go through this because I think most Members would like to resolve this. Let me say specifically to his two points that there is a substitute amendment that has the USA FREEDOM language with two additional pieces. Those two pieces are a 6-month notification to NSA by any telecom company that intends to change its retention program. As my good friend from Florida knows, in part, trying to move a bill is making sure we move a bill that can be passed and accepted by the House of Representatives. Mandatory retention right now does not meet that threshold. But I hope they will accept this requirement of notification of any change in their retention program, as well as a DNI certification at the end of whatever the transition period is. Now, there will be a first-degree and a second-degree amendment, in addition to that, made in order and germane. The first-degree amendment will be to extend the transition period to 12 months. So we would go from 6 months--not to 2 years, as my colleague from Florida and I would prefer, and not to 18 but to 12. I think that is a happy spot for us to agree upon. Then there will be a second-degree amendment to that to address some language that is in the bill that makes it mandatory on the part of the Justice Department that they get a panel of amicus individuals. What we have heard from the Justice Department and gotten a recommendation on is that that be voluntary on the part of the courts. We will second- degree that first-degree amendment with that language provided to us by the courts. I would like to tell my colleague that by tomorrow afternoon, I hope, we can have this complete and send it to the House, and by the time we go to bed tomorrow night this might all be back in place. I remind my colleagues that any law enforcement case that was in progress is not affected by the suspension of the roving or ``lone- wolf'' provisions. They are grandfathered in so those investigations can continue. But for the 48 hours we might be closed, it means they are going to delay the start of an investigation, if in fact they need those two tools. From the standpoint of the bulk data program, it means that is frozen. It can't be queried for the period of time, but it hasn't gone away. Immediately, as we reinstitute the authorities in this program, that additional data will be brought in and the process that NSA would go through to query the data would, in fact, be available to the National Security Agency only--as is current law--once a FISA Court provides the authority for them to do it. I think there are a lot of misstatements that have been made on this floor. Let me just state for my colleagues what is collected. What is metadata? It is a telephone number, it is a date, it is the time the call was made, and it is the duration of the phone call. Now, I am not sure how we have invaded anybody's privacy by getting a telephone number that is deidentified. We don't know who it belongs to, and we would never know who it belongs to until it is turned over to law enforcement to investigate because it has now been connected to a known foreign terrorist's telephone number. Stop and think about this. The CFPB--a government agency--collects financial transactions on every American. There is nobody down here trying to eliminate the CFPB. I would love to eliminate the CFPB tomorrow. But there is no outrage over it, and they collect a ton more information that is not deidentified. It is identified. Every American has a discount card for their grocery store. You go in and you get a discount every time you use it. Your grocery store collects 20 times the amount of data the NSA does--all identified with you. There is a big difference between the NSA and your grocery store: We don't sell your data at the NSA; your grocery store does. Now, I am for outrage, but let's make it equal. Let's understand we are in a society where data is transferred automatically. The fact is, No. 1, this is a program authorized by law, overseen by the Congress-- House and Senate--and the executive branch at the White House. It is a program that has never had--never, never had--a privacy violation, not one, in the time it has been in place. Now, I am all for, if the American people say this is not a function we believe government should be in--and I think that is what we have heard--and we are transferring this data over to the telecom companies, where no longer are there going to be a limited number of people who can access that information. We are going to open it up to the telecom companies to search it in some way, shape or form. Whether they are trained or untrained or how exactly they are going to do it, it is going to delay the amount of time it will take us to connect a dot to another dot.

Mr. BURR. I would agree exactly with that statement. The collection has nothing to do with the content of a call. To do that would take an investigation into an individual and an additional court process that would probably be pursued by the FBI, not the NSA, to look at the content. I think when the American people see this thing dissected, in reality, they will see that my telephone number without my name isn't really an intrusion, the time the call was made really isn't an intrusion, the duration of the call really isn't an intrusion, and now I know they are not collecting anything that was said, that there is no content in it and that this metadata base is only telephone numbers. There is a legitimate question the American people ask: Why did we create this program? Well, it was created in the Department of Defense. It was transferred over to the intelligence community. The purpose of it was in real time to be able to search or query a massive amount of data. A few weeks ago, we, the United States, went into Syria and we got a bad guy. And we got hard drives and we got telephones and we got a lot of SIM cards. Those telephone numbers now, hopefully--don't know but hopefully--we are testing them in the metadata base to see if those phones talked to anybody in the United States. Why? I think the American people want us to know if terrorists are talking to somebody in this country. I think they really do want us to know that. What we have tried to do since 9/11 is to structure something that lives within the law or a Presidential directive that gives us that head start in identifying who that individual is. But we only do it through telephone numbers, the date of the call, and the length of the call. We don't do it through listening to content. That is why I think it is healthy for us to have this debate. I think my good friend from Florida shares my frustration. We are changing a program that didn't have a problem and didn't need to be changed, and we are accepting a lower threshold of our ability to intercept that individual in the United States who might have the intention of carrying out some type of an attack. Now, I would only say this. I don't believe the threat level has dropped to a point where we can remove some of the tools. If anything, the threat level has gotten higher, and one would think we would be talking about an expansion of tools. But I accept the fact that this debate has gotten to a point where a bulk data storage capacity within the government is not going to be continued long term. I would say to my good friend, who I think agrees with me, that although I believe 24 months is a safer transition period, hopefully our friends in the House will see 12 months as a good agreement between the two bodies. That 12-month agreement I think would give me confidence knowing we have taken care of the technology needed for the telecoms to search in real time their numbers. Now, make no mistake, this will be a delay from where we currently are. I can't get into the classified nature of how long it takes us to query a database, given the way we do it, but there is no question this will lengthen the amount of time it takes us to connect the dots. Therefore, for something that might be in an operational mode, we may or may not hit that. That is a concern. But this is certainly something we can go back and look at as time goes on.

Mr. BURR. Absolutely.

Mr. BURR. The Senator has heard that statement by the press and has heard it made by Members of this body.

Mr. BURR. The Senator hits on a great point, and let me state it this way. Would any Member of the Intelligence Committee be on the floor battling to keep this program, if, in fact, in our oversight capacity, we had looked at a program that was absolutely worthless? Would we expend any capital to do that? The answer is, no, we wouldn't. We are down here battling on the floor, those of us either on the committee or who have been on the committee since 9/11, because we have seen the impact of this program. We know what it has enabled us to do and we know what happens when we get a trove of technology in our hands that gives us the ability to see whether it was tied to somebody--whether we knew about them or we didn't. The fact is, when you have groups such as ISIL today, that are saying on social media: Don't come to Syria, stay in the United States, stay in Europe, go buy a gun, here are 100 law enforcement officers, here are 100 military folks, that is how you can carry out the jihad, it makes the use of the tool we are talking about even more important because no longer do we get to look at no-fly lists, no longer do we get to look at individuals who have traveled or who intend to travel to Syria. It is individuals who grew up in neighborhoods that we never worried about. And the only way we will be able to find out about them is if we connect the conversation they have had or just the fact that a conversation took place, and then law enforcement can begin to peel the onion back with the proper authorities--the proper court order--to begin to look at whether this is a person we need to worry about. The Senator from Florida is 100 percent correct that this is invaluable to the overall defense of this country.

Mr. BURR. I thank my good friend from Florida for his willingness to come to the floor and talk facts. I see my good friend from Arizona here. Before I yield, let me just restate what the Senator from Florida asked me, which was, geez, we need a longer transition period and we need something addressed on the data that is held. I say for my colleagues that there will be three votes at some point. One will be on a substitute amendment. It has the exact same language as the USA FREEDOM bill. It makes two changes to the USA FREEDOM bill. It has a requirement that the telecoms notify the government 6 months in advance of any change in the retention program for their data, which I think is very reasonable. The second would be that it requires the Director of National Intelligence to certify, on whatever the transition date is, that the software that needs to be provided to the telecoms has been provided so that search can go through. In addition to that, there will be two other amendments. The first will deal with expanding the transition period from the current 6 months in the USA FREEDOM bill to 12 months. Again, I would have preferred 24 months. We have settled on 12 months. The last thing is that it would change the current amicus language in the bill to reflect something provided to us by the courts. It was the court's recommendation that we change it. This would be easier to fit within a program that has a time sensitivity to it. So as we go through the debate today, as we go through tomorrow, hopefully we will have three amendments that pass, and we can report this bill out shortly after lunch tomorrow if everything works well. With that, I yield the floor.

Mr. BURR

Mr. BURR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BURR

Mr. BURR. Mr. President, I ask unanimous consent that all morning business time be yielded back and the Senate resume consideration of H.R. 2048.

Mr. BURR

Mr. BURR. Mr. President, I thank the majority whip for his comments and for his support of the extension of 215 and for what I think are some very reasonable changes to it. Some of what the Senator from Texas said took me back to some of the hearings I know the Presiding Officer was in where intelligence officials were asked about this transition. They were asked very simply ``Will it work?'' and the answer they gave was ``I think so.'' To an institution such as Congress, where our No. 1 responsibility is the defense of the country, ``I think so'' is not the answer on which you base the change of a program. Therefore, that is why there is a debate in Washington right now--now in the Senate, soon to be with the House--as to whether 6 months is sufficient time to be able to address it. I know the Presiding Officer of the Senate heard individuals from the Justice Department say: Well, if this does not work, we will get back to you on changes. One of the reasons this tool is in place is because we identified shortcomings in our capability to identify terrorists post-9/11. Let me revert back--and I hate to go to history, but on 9/11, as the majority whip said, there was the loss of almost 3,000 lives, American and international lives. Washington, New York--could have been this building had some brave passengers not found out what they were up to and stopped them. I remember those days and weeks and months right after 9/11 as a member of the House Intelligence Committee. There are not many of us left who were here. I think only 40 percent of the Senate was here on 9/11. What were the questions that went through our minds? Who did this? Why did they do it? How wide was the plan to attack us? We had to start from a dead stop and try to figure out the answer to all of those questions. It is amazing that in a very short period of time we were able to construct tools that made sure that America would never be faced with questions such as those again and that if we were, it would be a very short period of time, not weeks and months and in some cases years to connect the dots and try to figure out how to keep this from happening again. Section 215 was one of the tools that was created as a result of 9/11. I revert back to the Director of the FBI, who said last year that had section 215 been in place prior to September 11, the likelihood is that we could have connected the dots between a known terrorist we lost track of by the name of Al Mihdhar, who traveled from Kuala Lumpur to San Diego before we had a no-fly list, who communicated via cell phone with a terrorist cell operating out of Yemen--we had the numbers out of Yemen; we just did not have the number of Al Mihdhar. Had 215 been in place, we could have tested the terrorist cell phones against the database we had. The FBI Director's own words: We probably would have stopped that component of 9/11. Al Mihdhar and his roommate, I believe, were the two who flew the plane into the Pentagon. Would it have captured everybody? Possibly not. Would identifying two individuals incorporated in a cell inside the United States have allowed the FBI to work through traditional means of investigation and find the rest of that cell, those planes directed--two planes toward New York and that fourth plane directed to the Capitol? Maybe. Maybe it would have. Maybe when are you trying to stop something, it is good, but when you are talking about eliminating something, ``I think we can do it'' does not meet my test. That is why one of the amendments I will ask my colleagues to vote on is an amendment to make the transition period not 6 months but 12 months. It is to make sure we have allowed the NSA a sufficient amount of time to technologically prepare the telephone companies to be able to search their data in a timeframe that we need to get in front of an attack versus in back of an attack. It is very simple: If it happens in front, it is intelligence. If it happens in back, it is an investigation. It is a legal investigation. It has already happened. We are trying to make sure we stay in front. I would like to take a moment to go over some myths about the PATRIOT Act. Here is myth No. 9: The President put in place two panels--a review panel and another one called the Privacy and Civil Liberties Oversight Board--and, interestingly, both panels told him the same thing: that what he was doing was illegal. Fact: President Obama's review panel never opined on the legality of the metadata program. It said the question of the program's legality under the Fourth Amendment ``is not before us,'' and it is not the review panel's job to resolve these questions of whether the program was statutorily authorized. Myth. Fact. Myth No. 8: The national security letter is similar to what we fought the Revolution over. I am not a lawyer, but given what we have been faced with since September 11, I think it would have been easier to go to law school than to try to figure out some of these things. The national security letter, despite its ominous-sounding name, is nothing more than an administrative subpoena. It has the authority equivalent to the authority postal inspectors employ to investigate mail fraud or IRS agents use to investigate tax fraud. Postal inspectors and IRS agents do not need judicial authorization to issue an administrative subpoena. Our Framers would likely be embarrassed if the post office had more authority to investigate postal fraud than the Federal Government had to protect us from terrorism. Before 215, the FBI would issue a national security letter that gave them expansive investigatory tools. Now, they could not do it in a timely fashion, but eventually they could not only get to a search of telephone numbers, they could search financial records, and they could search anything about an individual. Let me remind my colleagues that what we are talking about in section 215, the metadata program--we have never identified an American. All we have is a pool of telephone numbers with no person's name attached to them, and we collect the date the call was made, the duration of the call, and the telephone number that it talked to. The only time that information can be queried is when we have a foreign telephone number that we know to be the telephone number of a terrorist. Where we were before was much more expansive with a national security letter, but it was not timely, and if you want to be in front of an act, you have to be timely. That is how 215 was created. Myth No. 7: NSA collects your address book, buddy lists, call records, et cetera, and then they put them into a data--I think the program is called SNAC--they put it all into this data program and they develop a network of who you are and who your friends are. Myth. Here is fact: SNAC is the National Security Agency Systems and Network Attack Center, which, among other things, publishes a configuration guide to assist entities in protecting their networks from intrusion. Its work could not be further from the allegation made. Myth No. 6: Executive Order 12333 has no congressional oversight. Boy, that is a strange one to the Intelligence Committee, which spends a lot of time on oversight of 12333. It is simply wrong. S. Res. 400 of the 94th Congress created the Select Committee on Intelligence. CRS--the Congressional Research Service--points out that the President has a statutory responsibility to ``ensure that the intelligence committees are kept fully and currently informed of the intelligence activities of the United States.'' The committee routinely receives reports on such matters, including reports on NSA activities under Executive Order 12333. It is a part of the committee's mandate that we do successful oversight, and it is a requirement of any President that they make sure their administration fully cooperates and reports to both the Senate select committee and the House select committee. Myth No. 5: The President started this program by himself. He did not tell us about it. Maybe one or two people knew about it. Again, that is factually incorrect. Every Senator was put on notice of the program's existence in 2010 and again in 2011. My gosh, it has been a national--international debate over the last several weeks. Myth No. 4: The PATRIOT Act goes from probable cause, which is what the Constitution had, to articulable suspicion, down to relevance. This statement conflates issues. Articulable suspicion and relevance are not two different standards for the same thing. They both must be present--both must be present--in the metadata program. FISA, as amended by section 215 of the PATRIOT Act, allows the government to seek a court order requiring the production of ``tangible things'' upon a statement--articulation--of facts showing ``there are reasonable grounds to believe'' those things are ``relevant'' to an authorized investigation. This allows the government to seek call records from telecommunications companies. Then, when those records have been compiled into a database, that database can only be queried upon a reasonable articulable suspicion that the number to be queried is associated with a particular foreign terrorist organization. We keep getting back to this, and of all the conversations that are had on this floor about intrusion into privacy--one, let me state the obvious fact again. It is hard for me to believe we have invaded anyone's privacy when we have done nothing but grab a telephone number and we have no earthly idea to whom it belongs. And the only reason we would be concerned with that telephone number is if we pull a foreign terrorist telephone number and we search it and find somebody in America they have talked to. That is it. That is the entirety of the program, and it is all predicated on the fact that we don't search any--we don't query any data unless we have a foreign terrorist telephone number known, and that is what triggers the program to begin to meet the threshold of the court for a query of the information. Myth No. 3: The FISA Court has somewhat become a rubberstamp for the government. First, if that characterization is correct, then the Federal criminal wiretap process is even more of a rubberstamp for the government. The approval rate for title III criminal wiretaps is higher than the approval rate for FISA applications. Second, this claim does a disservice to the practice of the FISA Court, where there is often a back-and-forth between the government as applicant and the court. Again, this is not unlike the criminal wiretap process. The government often proposes to make an application before making its final application. The chief judge of the FISA Court has said it returns or demands modifications on these proposed applications 25 percent of the time. In this respect, the high approval rate of FISA applications does not ``reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them'' because it had not met the threshold. Third, the government has every interest in self-selecting only meritorious applications to bring to the court. The government is a repeat player at the FISA Court. It has a well-earned reputation as a broker of candor before the court, and there would be significant reputational costs to bringing nonmeritorious applications to the court. Let me sort of put in layman's terms what that is. The current wiretap standard--equivalent to going to a FISA Court--approves at a 25-percent higher rate than the FISA Court. And the FISA Court is the court that expedites time-sensitive investigations and time-sensitive intelligence requests. Myth No. 2: The problem in the FISA Court is that when they take you to this court, it is secret. True, it is secret, but so are any other judicial hearings where classified information is before to the court, and that court shuts down and goes into a nonpublic setting, just the way this institution does. We will do it as we get into the appropriations bills, and when we get into classified, sensitive appropriations, these doors will shut, the Gallery will be cleared, the TVs will be cut off, and we will do our business on secret, classified information. It is only realistic to believe that the court--especially the court that hears the most sensitive cases--would only hear those cases in secret because the cases cannot be presented in public. The last, No. 1: The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment. The Fourth Amendment protects against unreasonable searches. A search occurs when the government intrudes upon ``a reasonable expectation of privacy.'' The Supreme Court has noted ``that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'' The Court has also squarely determined that a person does not have a Fourth Amendment-protected privacy interest in the numbers he dialed on his phone. Telephone companies keep call records for billing purposes. When the government obtains those records from a third-party telecommunications provider, a search has not taken place for constitutional purposes, and therefore a warrant is not required. This program has been approved over 40 times by the FISA Court to exist. The program was instituted by the executive branch. The executive branch could end the program today. Why don't they? They don't because this program is effective. This program has thwarted attacks here and abroad. I know individuals have come on the floor and they have said: There is absolutely nothing that shows that section 215 has contributed to the safety of America. I can only say that they are factually challenged in that. You would not have the majority of the Intelligence Committee on floor lobbying for this program to continue in its current form. Now we know that is not going to happen, so we are trying to reach a modification of the current language so, in fact, we have a greater comfort level that the intelligence community can be in front of attacks and not behind them. I remind my colleagues that hopefully tomorrow afternoon we will be at a point where we are ready to vote on amendments. There will be three amendments to the USA FREEDOM Act. The first one will be a full substitute. It will take all the identical language of USA FREEDOM with two changes: One, it will require the telephone companies to notify the U.S. Government 6 months in advance of any change they make in their retention policy of the data, the telephone numbers. I think it is a very reasonable request that they give us 6 months' notice if, in fact, they are going to reduce the amount of time they keep that data. The second piece is that we direct the Director of National Intelligence to certify at the end of the transition period that we can successfully make the transition and that the technology is in place at the telephone companies, provided by the government, that they can query those numbers--in other words, that they can search it and take a foreign terrorist telephone number and figure out whether they talked to an American. In addition to that substitute amendment, there will be two additional amendments. The first one will take the transition period that is currently 6 months in the bill and will simply make it 12 months. If I had my preference, it would be 24 months, but I think this is a fair compromise. And my hope is that, matched with the certification of the DNI, we will be prepared to transfer this data but to continue the program in a seamless fashion, although it will add some time--yet to be determined--to how quickly we can make the identification of any connection of dots. The second amendment very specifically will be addressing the amicus provision in the USA FREEDOM Act. I am going to talk about amicus a little later, but let me just say for my colleagues that in the USA FREEDOM Act, in numerous places, it says that the courts shall provide a friend of the court. I am not a lawyer, but my understanding from those who are lawyers is that ``shall'' is an indication of ``you must.'' The courts have told us that will be cumbersome and difficult and delay the ability of this process to move forward. So the courts have provided for us language that changes it to where the FISA Court can access a friend of the court when they feel it is necessary but not be required to have a friend of the court regardless of what their determination is. We will talk about that over the next just shy of a day, but it is my hope to all the Members that all three of these amendments can be dealt with before 24 hours is up and that passage of the USA FREEDOM Act as amended by the Senate can be passed to the House for quick action by the U.S. House and hopefully by the end of business tomorrow can be signed by the President and these very important programs can be back in place. I would make one last note--that I am sure Americans find it troubling that this program is going to be suspended for roughly 48 hours. In the case of investigations that are currently underway, they are grandfathered and the ``lone wolf'' and roving wiretap can still be used, but new investigations have to wait for the reauthorization of this bill. From the standpoint of the metadata program, last night at 8 o'clock it could no longer be queried, and it won't be able to be queried until this is reauthorized. There is time sensitivity on us passing this, just as there is time sensitivity in getting the language of this bill correct so that, in fact, we can query it, we can connect the dots, and we can get in front of an attack prior to the attack happening. I urge my colleagues in the Senate to spend the next 24 hours understanding what is in the USA FREEDOM Act. Look at the amendments. They are reasonable. They don't blow up this piece of legislation. They provide us the assurance that we can make this transition and that after we make the transition, the program will still work. I urge my colleagues to support all three amendments. I yield the floor. I suggest the absence of a quorum.

Mr. BURR. Madam President, before the recess, there was an attempt to try to bring finality before this bill expired. At that time, I reached out to my friend and colleague from Kentucky, Senator Paul, and offered him my assurance, as manager of the bill, that we would take up his amendments. But as the President of the Senate knows, if any one Senator objects to a vote, then a vote does not happen. I consented at that time that I would initiate a tabling of his amendment so that there could actually be a vote. There has been every attempt to try to accommodate amendments. I think that given the short time that we are dealing with, where we are trying to make sure that the expiration of these needed tools is as limited as we can, the leader is exactly right. You cannot go outside of the processes that were already triggered prior to this. I think we have made every attempt to try to accommodate the current Senate rules, but unfortunately, there were objections to that as we departed town over a week ago, and we are where we are. For my colleagues' sake, let me restate where we are. We have had the expiration as of midnight last night of section 215. Section 215 has many pieces to it, but there are three that are highlighted. One is the ``lone wolf'' provision, an individual who has no direct tie to a terrorist organization but could be radicalized in some type of communication, and ``lone wolf'' provides us the ability to target them without a direct association to a terrorist group. And roving wiretaps are the ability to target an individual and not a specific phone. These two are noncontentious, and there was a request by unanimous consent yesterday before the expiration to extend those two pieces. There was an objection. The Senate operates by rules. When one Senator objects, everything stops. For that reason, those two provisions expired last night. Let me say for the benefit of my colleagues and for the American people that any investigation that was currently under way as of 12 o'clock last night can continue to use those two tools. What is affected while we are in this expiration period is that you cannot open a new investigation and use those two tools to investigate that individual. So we are limited on anything that might have opened since 12:01 this morning. My hope is that the Senate will dispose of all of the 215 provisions by 3 o'clock tomorrow. We can turn the faucet back on, and law enforcement can use those two tools. But the third piece has been the focus of contention in the Senate and in the country, and it deals with a program called the metadata program. It is a scary word. Let me explain what the metadata program is. The NSA receives from telephone companies a telephone number with no identity whatsoever. We refer to it as a deidentified number. They put all of that into one big database. The purpose of it is that when we find a known terrorist outside of the country and we have his telephone number, then we want the ability to query or search that big database to see if that known terrorist talked to anybody in the United States. We actually have to go to court--to the FISA Court--to get permission, and we have to have articulate, reasonable suspicion that there is a connection, that that known terrorist's telephone number can be tested against this database. We collect the telephone number, we collect the date the call was made, and we collect the duration of time of the call. There is absolutely zero--zero--content. There is zero identifier. There is not a person's name to it. People have questioned whether the program is legal. It is legal because the Supreme Court has said that when we turn over our data to a third party, we have no reason to believe there is a privacy protection. Therefore, when we get that telephone number from a telephone company, we throw it into a pool, and the only person who should ever be worried is somebody who is in that pool that actually carried on a conversation with a terrorist. And if we connect those two dots--a person in America and a known terrorist abroad--and they communicate, then it is immediately turned over to the FBI for an investigation. It is a person of suspicion. We turn it over to law enforcement. Law enforcement then goes through whatever court procedures they need to do to investigate that individual. That is the metadata program. That is the contentious thing that has bogged this institution down to where we have let it expire--in most cases because people have suggested it is something other than what I have just described. I have read a lot of the myths. Let me just go back through some of them again. I think it is important. Myth No. 1: The NSA listens to Americans' phone calls and tracks their movement. The NSA does not and cannot indiscriminately listen to Americans' phone calls, read their emails or track their movement. The NSA is not targeting or conducting surveillance of Americans. Under the Foreign Intelligence Surveillance Court--FISA Court--order, the only information acquired by the government from telephone companies is the time of call, the length of call, and the phone number involved in the call. The government does not listen to the call. It does not acquire the personal information of the caller or the person who is called, which is obtained only through a separate legal process including, if necessary, a warrant based on probable cause, which is the highest standard that the judicial system has. Frankly, there is more information available in a U.S. phonebook than what the NSA puts in the metadata base. There is more privacy information that Americans share with their grocery store when they use their discount card to get groceries. There is more data that is collected at the CFPB on the American people than the NSA ever dreamed about, but there is nobody down here trying to eliminate the CFPB, although I would love to do it tomorrow. But the fact is, if this is about privacy, how can we intrude on anybody's privacy when we do not know who the individuals are of the phone numbers that we have? And there is the fact that the Supreme Court has said that when you relinquish that information to your phone company, you have no right of privacy. Myth No. 2: The NSA program is illegal. There have been some who have come to the floor and said that. The Supreme Court held in Smith v. Maryland and in U.S. v. Miller that there is no reasonable expectation of privacy in telephone call records, such as those obtained under section 215. Those records are not protected by the Fourth Amendment. Under the current 215 program, the judges of the FISA Court must approve any request by the FBI to obtain information from the telephone companies. Congress has reauthorized the PATRIOT Act seven times. The FISA Court reviews the act in an application every 90 days, and the FISA Court has approved the reauthorization of those 90-day extensions over 41 times. This is not a car on cruise control. This is a program that every 90 days the court looks at and assesses whether for another 90 days we have the right to run the program. Put on top of that, the congressional oversight of the program is probably the second-most or third-most looked at program by the Senate and House Intelligence Committees of any program within our intelligence community. Myth No. 3: The NSA dragnet repeatedly abuses government authority. The government does not acquire content or personal information of Americans under the section 215 program. The names linked to the telephone numbers are not available unless the government obtains authorization through a separate legal process, including, if necessary, a warrant based on probable cause. Careful oversight of the program reveals no pattern of government abuse whatsoever. In fact, after more than a decade, critics cannot cite a single case of intentional abuse associated with FISA authorities. That is a far cry from the debate that we have listened to and, I might say, that has been covered on some of the national media. Myth No. 4: The government stopped only one plot using section 215. For anybody that was listening earlier to me, I described four specific things that I can talk about in public. There were four plots. A plot is something that you get to before an act is done. We even talked about the Tsarnaev brothers, who committed a violent act that killed and maimed a number of people in the Boston Marathon. We had the ability because we had a foreign telephone number that we thought was tied to the Tsarnaevs, and even after the fact, we were able to go back and use 215 to see if there was a foreign nexus to an act that had already been committed. In this case, we could not find that nexus, but we had the tools available so that law enforcement could responsibly look at the American people and say we have done everything to make sure that there are not additional participants in this act who might carry it out at the next marathon or the next race or the next festival. That is what our ability is supposed to be if, in fact, our oath of office as a Member of Congress is to defend the country, number one. Myth No. 5: The FISA Court is a rubberstamp. Despite all the claims that the FISA Court approves 99 percent of the government's applications, the FISA Court often returns or demands modifications to about 25 percent of the applications before they are even filed with the court. According to the FISA Court chief judge, the 99-percent figure does not reflect--does not reflect--the fact that many applications are altered prior to the final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them. Let me put this in perspective. Twenty-five percent more of the wiretap applications are approved than of FISA. I mean, that says enough right there. In comparison to Federal court documents which include wiretap applications as instructed, of the 13,593 wiretap applications filed from 2008 to 2012, the Federal district court approved 99.6. The only reason that FISA is at 99 percent is because when the government sees that they are not going to be approved, they withdraw the application. That seldom happens in wiretap applications. Myth No. 6: There is no oversight of the NSA. The NSA conducts these programs under the strict oversight of three branches of government, including a judicial process overseen by Senate-confirmed judges appointed to the FISA Court and a chief judge of the United States. Republicans and Democrats in Congress together review, audit, and authorize all activities under FISA. There are few issues that garner more oversight attention by congressional Intelligence Committees than this program, as well as the responsibilities imposed on the executive branch to make sure that the Federal agencies in a timely fashion share all information with the select committees in the Senate and the House for the purposes of oversight of our intelligence community. Now, some have suggested that because the Director of the NSA says we think we can do this, we should just trust them. Please understand that the reason we are having this debate is because some have suggested that the NSA cannot be trusted. Once again, I will state for my colleagues that we are going to do everything we can to wrap this up by 3 p.m. tomorrow. The debate about whether the data is going to transfer from the metadata program at NSA to the telephone companies has been decided. It will transfer. Over the next 24 hours, we will attempt to take up the USA FREEDOM Act--the exact language that was passed by the House--with a substitute amendment that embraces all of the House language with the exception of two issues. We will make two changes. One of the changes will require the telephone companies to provide a 6-month notice of any change in their data retention policy. In other words, if one telephone company has an 18-month retention program currently in place and they decide they are only going to hold the data for 12 months, they have to notify the Federal Government 6 months in advance of that change. The second change will require the Director of National Intelligence to certify that on the transition date, that the government has provided the technology for the telephone companies to be able to search the data in a timely fashion for us to stay in front of attacks. In addition to that substitute amendment, which I hope my colleagues will support because there are minimal changes, there will be two amendments to the bill. The first amendment will change the transition period from 6 months to 12 months. So when the Director of the NSA says ``I think we can do it in 6 months,'' to the Intelligence Committee, ``I think we can do it'' is not a good answer. So what we are asking is that we go from 6 months to 12 months so we can make sure the technology is in place for this program to continue. The last piece is a change in the amicus language of the bill or the friend-of-the-court language in the bill. The bill itself uses the words that the courts shall--which means must--have a friend of the court, and that is not needed in all cases. If that is applied to all cases, it will put in place a very cumbersome and untimely process. When we are dealing with trying to get in front of an attack and dealing with individuals who are linked to known terrorists abroad, we want to have a way to query that data, to search that data as quickly as we possibly can with the approval of the court. So what we have done is taken language that has already passed out of the Intelligence Committee and has been signed off by the courts that changes ``shall'' to ``must.'' It basically says that the court has the opportunity, anytime they need a friend of the court's advice, to turn to it and to get it, but it doesn't require that they have a panel set up that automatically sits in on every consideration, because a judge doesn't always need that. As the Presiding Officer of the Senate knows, the FISA Court operates in secret, which is another criticism of many people. Well, I don't want to share any secrets, but sometimes the Senate operates in secret. Most of the time, the Intelligence Committee operates in secret. Believe it or not, some titans of the courts in our country operate in secret. They have the authority to do it anytime there is secret or classified information that can't be shared publicly. Well, that is all the FISA Court does. That is the reason it is in secret. It is not because we don't want the American people to know that there is a FISA Court or that there is an application or a decision made by the FISA Court, but everything the FISA Court takes up is secret or classified, so it has to be done in secret, just like some of the budgets and some of the authorizations we do in the Senate that are classified. We shut these doors, we empty the Gallery, we cut off the TV, we hash out our differences, we come together, and we have a piece of legislation that only those people who are cleared can read. That is part of functioning. And part of functioning from a standpoint of getting in front of terrorism is to make sure the tools are in place to allow not only intelligence but law enforcement to do their job. I think when the American people understand how simple this program is--we take the telephone numbers, we take the date the call was made, we take the duration of the call, and if it connects to a known foreign terrorist number, then we turn it over to the Federal Bureau of Investigation and they go to court to figure out whether this is an individual they need to look at. It is no longer a part of the intelligence community. It is a valuable tool. It has helped us to thwart attacks in the past. My hope is that after we get through with business tomorrow at about 3 p.m., that this will continue to be a useful tool. I urge my colleagues to expeditiously consider not only the base language but the substitute and both amendments. I yield the floor. I suggest the absence of a quorum.

Mr. BURR

Mr. BURR. Objection.

Mr. BURR. Regular order.

Mr. BURR

Mr. BURR. Mr. President, I suggest the absence of a quorum.