Mike Lee

Mr. LEE

Mr. LEE. I echo and endorse the wise comments just uttered by my friend and colleague, the distinguished Senator from Missouri. What we are witnessing here is the destruction of the legislative process in the Senate. The Senate is here today preparing to vote on one of the most significant pieces of legislation this entire Congress--that is, a bill to send nearly $100 billion overseas--and Senators are unable even to offer an amendment to that bill. By filling the amendment tree this afternoon, the majority leader has prevented every single Member of this body from offering amendments to the legislation, any efforts to improve it. If we want to have any amendment considered, we have to beg the majority leader to let it come before the full Senate for a vote. You may remember that just a couple of months ago, we were in a very similar position on a very, very similar bill. Senator Schumer promised a ``fair and open'' amendment process on the national security supplemental in February of this year, but not one amendment--not a single amendment--was considered on the Senate floor. Republicans filed over 150 proposed amendments to improve the bill, but not one vote on a single one of those amendments or any other was allowed. Why? Why? Well, Senator Schumer blocked every amendment from even being considered by filling the amendment tree. That blocked all of the other 99 Senators from participating meaningfully in that process. Now, why wouldn't he want amendments? That is, after all, the hallmark characteristic of what defines us as a body. It is why we call ourselves the world's greatest deliberative legislative body. So why wouldn't he want those? Well, I think it has a lot to do with the fact that an amendment might point to some of the weaknesses in the bill, some of the defects of the bill. It might prompt Members to--I don't know--slow down and ask whether this is a prudent idea--to send a lot of humanitarian aid to Gaza, up to $9 billion, $9.5 billion that could go there with minimal guardrails, where Hamas will, with certainty, seize it to wage war against Israel; or if the U.S. taxpayer should be footing the bill for ``gender advisors'' in Ukraine's military. Should they really vote for a bill that does this? That is what an amendment forces all of us to ask ourselves and decide on one particular question or another. But leadership in the Senate wants to avoid these thorny questions that might rock the boat. Leadership wants to ram this bill through the Senate with minimal debate and perhaps no amendments because they know that aspects of it, especially the $60 billion for Ukraine, are massively controversial with the American people, those who elected us, those who pay taxes to fund these efforts. Now, my colleagues and I are working in good faith to reach a unanimous consent agreement to bring forward a handful of amendments and set up a stand-alone vote in exchange for expediting the passage of the bill. We nearly had that agreement locked in late Friday night--an agreement to vote on just two amendments and one stand-alone bill--but a couple of Senators on the other side of the aisle panicked and started objecting to any and all agreements. They panicked because they knew that one of those items set up as part of a UC--the stand-alone legislation to redesignate the Houthis as a foreign terrorist organization, as has been offered by my friend and colleague the Senator from Texas--might actually pass. Remember, this is the same entity that has been firing on U.S. forces in the region and those of our allies, and yet they couldn't let that happen. Democrats will agree only to amendments that they find politically palatable or know will not pass. Now, it has not always been this way in the Senate. When I first joined this body in 2011 as a new Member, individual Members could call up our amendments freely and then make them pending, and the Senate would then have to dispose of them as it does with pending amendments, either by voting them in; voting them out, up or down; or by a motion to table or reject them. But Members had to vote. They had to take ownership for their opinions in public. They had to let their constituents know where they stood. Today, the majority leader hides the ball from the public by filling the amendment tree, ensuring that the amendments that he and his party dislike will never see the light of day. This is a circus. It is a madhouse. Filling the amendment tree isn't about creating an orderly process. It is about limiting real debate. When we had an open process, when Members could call up their amendments and make them pending on most bills, it actually sped up consideration of a bill. Members knew that they would have a fair shot in the debate and debate eventually. So they would be more cooperative, would be more willing to collapse time, and wait until the next bill to offer their amendment or take a motion to table as a proxy for their amendment vote. But in today's Senate, we do nothing on the floor for hours while Members and the staff hide in the cloakroom and argue about what we can and cannot vote for. They twist arms, pressure Members in private, and make assurances they can't and don't intend to keep, saying: Oh, you will get the amendment in the base text of the next bill or you will get it as a free-standing measure another time. And then they shrug their shoulders when it just doesn't work out. Why not have these debates in public? Why not allow our Senators and their constituents to know what is going on? Well, it is because the majority leader doesn't want to give up control. Sadly, while the Democrats pioneered this change in the amendment process, Republican leadership chose to tolerate the practice and even continue it while we were in the majority by filling the amendment tree so that no one could offer an amendment without the leadership's blessing. For both sides, it is about control. It is about protecting Members from voting, the very thing we all came to this body to do. On the Republican side of the aisle, our aspiring leaders need to ask if they want to perpetuate this awful trend. Will they tolerate blocking out Members, including Members of their own party from offering amendments? Will they continue to lock down the floor? Will they continue to disenfranchise Members and, more importantly, those they represent, by preemptively blocking them from exercising their procedural rights? Or will they finally stop this barbaric practice of filling the amendment tree? Will they let Members make their amendments pending so that Senators must actually debate and vote? Republicans need to ask these questions of anyone desiring to lead our conference.

Mr. LEE. Mr. President, the pending measure, the House message to accompany H.R. 815, contains an emergency designation: on page 12, lines 3 through 6, and another emergency designation on page 12, lines 12 through 15. I, therefore, raise a point of order pursuant to section 314(e) of the Congressional Budget Act of 1974 against both of these designations.

Mr. LEE. Mr. President, we just heard the astounding claim that it would be a waste of time to allow individual Senators to come here and do what they were elected to do, which is to offer improvements to pending legislation. We are not a rubberstamp for the House. We are not a rubberstamp for either party's leadership in either Chamber. We are U.S. Senators, and we should be able to vote as such. And so I am asking for the support of my colleagues in tabling the amendment tree so we can have the ``fair and open'' process that Senator Schumer promised the last time we addressed the national security supplemental. If we table the tree, Members can actually, finally, be able to call up their amendments on the floor, instead of begging Senator Schumer to give his blessing for their consideration. If you support a fair and open amendment process, if you want to improve the bill, you should support my motion to table. This will not create the post-apocalyptic hellscape that those in leadership would have us believe will ensue. There will not be dogs and cats living together in the streets, nothing out of the Book of Revelations. We will just find ourselves in the position of being able to do our job. Motion to Table To that end, I move to table the motion to refer. I ask for the yeas and nays.

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

Mr. LEE. Mr. President, it wasn't too long ago when Republicans made a promise to ourselves and to the American people that before we sent another dollar, another dime, another nickel, another penny to Ukraine, we would ensure that our own house was in order, that our own country was secure, that our own border was secure, that we would pass a real border security measure. And yet here we are, months later, preparing to dispatch nearly $100 billion. If you say it slowly, you sound a little bit like Dr. Evil in the original Austin Powers movie--$100 billion to foreign countries while the security of our own homeland languishes. House Republicans have broken their promise and at least a critical mass of them, under the direction of House Republican leadership, have betrayed the American people because they have gone back completely on what they--what we--promised. Tonight, we are seeing the same movie played out on the Senate floor. This occurs at a time when about 60 percent of Americans live paycheck to paycheck, and yet Congress continues to add to a national debt that is about to blow past the $35 trillion mark. How can we justify this to the American people as a Congress? Are we really more concerned with the borders of a foreign country-- Ukraine--and with foreign wars around the world than we are with the safety and the security of the United States and its citizens? This bill tells the American people that the answer to that question is an unambiguous resounding ``yes.'' Congress cares more about sending billions to wage endless war in foreign countries, cares more about this than saving our own country, especially at a time when we are being invaded. We have seen an invasion of between 8 and 13 million people over the last few years alone. That is a big deal. We are forgetting the wise caution left to us by our first President, the Father of our Country, George Washington, who warned against entangling our peace and our prosperity with the affairs of other nations. He said: Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice? It seems no price is too high, no weapon system is off limits. Our only strategy appears to be ``spend, spend, spend, and then spend some more,'' with little to no thought given to the consequences. It is the continuation of a lackluster approach to the Ukraine-Russia conflict, devoid of coherent strategy, while allocating the vast majority of its funding to Europe and the Middle East, neglecting, of course, the looming threats from China and the warnings from great national policy experts, like Elbridge Colby, who warn us, time and time again, that the same weapons that we are depleting, sending to other parts of the world, sending to Ukraine, are those that are in such dire need in Taiwan and elsewhere. The $13 billion in military aid to Israel is juxtaposed with the up to $9.1 billion in civilian aid going to Hamas. Now, some would say: You mean Gaza. And I say: No, I mean Hamas. You cannot send this aid. Even if it is labeled as humanitarian or for some other noble-sounding purpose, if you send it to Gaza, it is aid to Hamas--Hamas terrorists. These are the same terrorists who massacred, who butchered, who savagely mutilated innocent men, women, and children in Israel just a few months ago in October. The architects of this bill undermine their own goal to secure stability and peace in the region. So I have come to the floor in an attempt to soften the blow to the American people. To that end, I would like to call up Lee amendment No. 1902 for consideration. My amendment would require Ukraine to repay the money loaned to it and that the funds repaid be used to secure our border. If Congress is so determined to send taxpayer money abroad, then the repayment of this loan should not be waivable and must be used to secure our border. It is sad that shoring up our border and protecting our own citizens has to come at the mercy of our debtors. But that is what this administration thinks of everyday Americans--that they don't deserve protection. We should be voting on H.R. 2, and we should be doing that today. We should be addressing the crisis at the border. Instead, we are focused on sending money to secure Ukraine's border, not our own. I ask unanimous consent to set aside the pending amendments and motions in order to call up my motion to concur with amendment No. 1902.

Mr. LEE. If the objection is that my proposal is somehow not germane, then I will offer up another amendment. I want to bring up Lee amendment No. 1857 for consideration. It would ensure that the repayment of the loan Congress seems so determined to give Ukraine is exclusively used to pay down the U.S. national debt. This bill demands the American people dig deeper into their pockets, funding the salaries and pensions of Ukrainian officials as humanitarian efforts under the guise of a loan. The unsettling truth is that this loan can and almost certainly will be waived, possibly leaving Americans without any reimbursement. I think that is part of the plan, in fact. It makes it easier to swallow. It makes it look like something less than what it is. My amendment addresses this concern by prohibiting any cancellation of a debt owed by Ukraine and making sure repayments go directly to the U.S. national debt. By presenting this amendment, I aim to offer the American people the financial security and oversight this bill currently lacks, deliberately so, effectively serving as an insurance policy against irresponsible fiscal gambles half a world away. I ask unanimous consent to set aside the pending amendments and motions in order to call up my motion to concur with amendment No. 1857.

Mr. LEE. Next, I am going to call up, in a moment, Lee amendment No. 1882 for consideration. If we are genuinely concerned about security, let's just start by securing our own citizens' personal information, securing it from foreign adversaries. My amendment would prohibit the sale, transfer, or sharing of American personal data to governments like China, Russia, North Korea, and Iran without explicit consent from the individual. For weeks, proponents of the House-passed bill to force the sale of TikTok--legislation included in the package we are debating--have told us this legislation is vital to protecting the security of Americans' data. The reality, however, is far more complicated. Indeed, forcing the sale of TikTok through that legislation won't, itself, secure the data of users. Instead, it will simply allow another company to purchase TikTok and do with their users' data what they may. Only by changing the underlying law and preventing companies from handing over Americans' information to our adversaries can Congress secure the personal information of every American. My amendment aims to do just that rather than engage in a regulatory game of Whac-A-Mole, whereby we allow ourselves to be distracted by whatever company happens to be making headlines at the moment. My amendment would implement a comprehensive prohibition on any individual or company operating in the United States from selling, transferring, or sharing the data of an American citizen to the government of a foreign adversary without that individual's express consent. This is a serious solution to a serious problem. No company should profit by exposing the personal information of an American citizen to a hostile foreign power, whether that company is owned by a foreign national or by an American citizen. To that end, I ask unanimous consent to set aside any pending amendments and motions in order to call up my motion to concur with amendment No. 1882.

Mr. LEE. This really is too bad. These are some really good amendments. Apparently, we are not allowed to have those. We are just allowed to sing off of whatever hymnal they happen to hand us that has been preblessed by the law firm of Schumer, McConnell, Johnson, and Jeffries. That is unfortunate. Next, I want to call up Lee amendment No. 1860 for consideration, which proposes to strike all emergency spending designations from the bill. We cannot continue to spend under the guise of an emergency, especially when an actual emergency--a real-life, present-tense, presently located emergency--involving the security of our own Nation's national border is not even being addressed in this bill. It is not just that it is not being resolved. It is not even being addressed at all. This irresponsible practice has led to a ballooning national debt now nearing $35 trillion. It will soon blow past that. If this spending is necessary, it should be subject to the same budgetary constraints as all other government expenditures. This bill spends almost $100 billion--$100 billion we don't have--on top of the more than $100 billion Congress has already appropriated for the war in Ukraine over the last 2 years--in excess of $113 billion, if I am not mistaken. It will spend more money on interest payments on our national debt this year than on all base defense spending. And, within a year, I believe, we are likely to be spending well over $1 trillion a year just in interest on the debt. If Congress believes it is worth spending $100 billion we don't have, Congress should be making sure that sum of money will be fully offset or subject to appropriate budgetary enforcement. My amendment would strike the emergency designations of this bill to subject this additional spending to the annual caps Congress agreed to last year, while simultaneously predicting the bill's budgetary effects from escaping proper enforcement. Mr. President, I ask unanimous consent to set aside any pending amendments and motions in order to call up my motion to concur with amendment No. 1860.

Mr. LEE. Mr. President, it is profoundly distressing--disappointing, to say the least--that these commonsense amendments have been so cavalierly objected to and have been met only with one-word objections. Although my amendment to strike the emergency designations--all of them drew an objection--pursuant to section 314(e) of the Congressional Budget Act of 1974, I intend to raise a point of order against these same emergency designations for international disaster assistance and migration and refugee assistance for Gaza. We are, in the end, going to have to acknowledge that we are at a critical juncture, compelled to reevaluate our priorities as a nation and our responsibilities to the American people. Every decision we make must be weighed against the best interests of those we are sworn to serve, not those people abroad but those who are right here at home. Waving the flag of another nation in Congress as you vote to send them tens of billions of dollars doesn't inspire confidence; it creates distrust. As legislators, we fail in our duty if we don't heed the call to prioritize the American people first. So to all out there who find this distressing--the distressed Americans, the distressed carpenters, the distressed plumbers, the distressed poets--I am sorry that we weren't able and willing to secure the border. We should have been able to do that. We made a promise, and we as Republicans shouldn't have deviated from that promise--certainly not with the critical mass necessary to facilitate passage of this in the House and then, before the night is finished, likely the Senate; certainly not under the leadership of our own elected Republican leaders, who themselves have repeated this promise not too many weeks ago--a promise that is now apparently a thing of the past that we are supposed to forget. This $95 billion aid package to foreign countries is a stark testament of the misguided priorities of our current congressional leadership and a clear indication that we have let ourselves and, perhaps more critically, the American people down. The situation demands a wake-up call. To every Member of this body, by failing to address the fundamental needs of our own people, the American people, in favor of international interests, we risk not only the prosperity but also the security of our Nation. And make no mistake, this isn't free, although it can feel free to those of us who work in this hallowed Chamber. It can feel free to us. It can feel as if we draw from an endless, unlimited well, but we don't. As we have seen to an acute degree over the last few years, every time we spend more money than we have, that comes at a cost. Sure, we borrow the money, and sure, the credit of the United States is still just good enough that it can feel like we have the capacity to just print our own money, which is essentially what we are doing. But every time we do that, every dollar earned by every hard-working American-- every mom and dad, married or single, in this country, just trying to put food on their table for their kid, suffers, as they are having to shell out an additional $1,000 a month every single month just to live, just to put a roof over their head and keep food on the table. I agree with the assessment of Nobel laureate and famed economist Milton Friedman, who said that in any given moment, the true level of taxation in America can best be measured not by the top marginal tax rate or even the average effective tax rate but, instead, by the overall level of government spending. This, he explained--perhaps referring to an odd combination of credit rating, the way our deficit spending works--in effect, every year when we look at overall government spending, especially Federal spending, that is the true cost of the Federal Government because what we don't collect in taxes, we effectively print and thereby devalue every dollar that is earned by every American by degrees. Unlike other expenses that people have--the monthly bills they receive or the annual tax return they file--there is no billing moment attached to this, there is no pricetag. You don't ever see the overall amount that you are spending on this, as you do at least once a year when you file your Federal income tax return. No. It is very different with inflation. Each dollar is diminished bit by bit. The Federal Government is costly, and when it sends money abroad that we don't have to fund somebody else in fighting a war against somebody else, that costs money. Another thing we learn about these proxy wars is that in the United States of America, which has assembled the greatest military force the world has ever known--certainly the strongest military force that exists today--proxy wars carry on for going on 2-plus years now. We are in our third year of this effort. They don't remain proxy wars forever. It becomes especially startling when the proxy war is being fought against a nuclear-armed adversary. That is not to say we can never push back against any nuclear-armed adversary, but it does mean we should be darn careful when we do that. We should know exactly what our objective is, what it is going to take to secure the peace so that we don't have to fight that war. We don't avoid the profound risk to our own national security simply by funneling money through a proxy, whether that proxy is a great steward of the funds, weapons, and resources that we send or not. Whether that country happens to be one that has proven impervious to fraud, corruption, money laundering, and grift or not, we should be concerned about what happens to that money because it is ours and because how it is spent is going to have a very direct, very real potential outcome on the American people. We cannot pretend anymore that we have the money to do this, that the economic cost is free, or that the military risk is free. None of them are. Shame on us if we don't turn this around. Shame on us if we pass this tonight. Shame on us if we do this without taking any steps to secure the integrity of our own border. I yield the floor.

Mr. LEE

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

Mr. LEE. Mr. President, I ask unanimous consent to speak for up to 30 minutes.

Mr. LEE. Mr. President, as I explained on the Senate floor yesterday, the House FISA reauthorization bill, known as RISAA, has a lot of problems--more problems than a math book. Not only are the bill's purported reforms mostly fake--and where they are not fake, they are woefully inadequate--but the bill itself actually expands FISA. It expands FISA surveillance beyond where it has existed in the past. In fact, RISAA authorizes the largest expansion of surveillance on U.S. domestic soil since the passage of the Patriot Act. Egregious Fourth Amendment violations against U.S. citizens will increase dramatically if this bill is passed into law as it stands now. Fortunately, there is one thing standing between where that bill stands now and where that bill could be soon if we enact it without amendment, and that is the U.S. Senate. Under article I, section 7, the same bill has to pass both Houses before it can be presented to the President for signature, veto, or acquiescence. RISAA, as amended by the Turner amendment, would allow the government to compel a huge range of ordinary U.S. businesses and individuals and other organizations, exempting only an odd assortment of entities, including hotels, libraries, and restaurants, to assist the U.S. Government in spying on American citizens. Currently, the government conducts FISA 702 surveillance with the compelled assistance of what are known as electronic communication service providers, or ECSPs. Historically, the definition of such an entity, of an ECSP, is including those entities with direct access to Americans' communications. Think, for example, Google or Microsoft, Verizon, et cetera. This new provision would allow the government to compel warrantless surveillance assistance from any provider of any service that has access to equipment on which communications are routed and then stored. This would include a huge number of U.S. businesses that provide Wi- Fi to their customers and, therefore, have access to routers and to communications equipment. Now, apparently, this provision is a result of the intelligence community's ire at being told by the Foreign Intelligence Surveillance Act Court, or the FISC as it is sometimes described, that data centers or cloud computing do not, under existing law, have to comply with FISA-compelled disclosures. House Intelligence Committee Members claimed that it was a narrow fix, a narrow fix that would allow the government to compel information from a single service provider--just one. Now, yesterday, right here on the Senate floor, my friend and colleague, the distinguished senior Senator from the State of Virginia and the chairman of the Intelligence Oversight Committee in the Senate spoke about this now infamous Turner amendment. First and foremost, Senator Warner admitted in that context that even he thinks the amendment could have been better drafted. This is, of course, putting it very mildly and indeed euphemistically. And instead of voting on correcting that language, language that could have drastic implications for the privacy and the Fourth Amendment rights of American citizens and grave implications for all kinds of businesses and other organizations in America, he would rather just pass the faulty, flawed, broad-as-can-be language passed by the House and then rely on promises from the intelligence community Agencies that they will not abuse this new expansion of their authority. How does that sound to you as an American citizen? To anyone within the sound of my voice, do you really feel good about agreeing to that when you hear from one of our intelligence-gathering bodies, hey, you can trust us? Sure, this language is broad enough; it has got loopholes in it. You could drive a Mack truck, a 747, and an Airbus A380 through the loophole side by side; but, trust us, we won't treat it that way. Is that a good idea? I think not. In fact, the entire premise of the Constitution--not just the Fourth Amendment but of the Constitution itself--is ``trust but verify.'' It is, we are not angels, we don't have access to angels to run our government, so we rely on rules. We don't rely on placing faith in governments. Faith is reserved for very different beings than those occupying the halls of the U.S. Government, whether they are in the intelligence Agencies or otherwise. As a Federal lawmaker who has been lied to repeatedly throughout the years by various elements within our government, including some people within the Department of Justice and the FBI on the abuse of the authorities, these very same authorities that we are talking about here, forgive me if I am not just willing to take the word of the intelligence community. We have a responsibility to our constituents, to voters everywhere, to Americans of every political stripe in every part of this country to protect them by getting this language right, by getting it right before it becomes law, not after when all we could say is, oh, we are sorry. Or, more likely, all that Members who support that could do is try to help them cover it up. That is not right. Second, my esteemed colleague has either been entirely confused by the protestations of the intelligence community, or he, like the Department of Justice, would like to confuse you as to what this expansion of authority actually means, what it does. They are suggesting that we are offended by this expansion, merely because it would allow them to target more individuals. That is not the problem, not at all. The problem is, rather, that this amendment is so broadly worded that it could subject any kind of service provider, even one providing services such as cleaning services or plumbing services, to participate in the secret, compelled disclosure process on which section 702 of FISA relies. Now, we are not concerned with new targets resulting from this legislation, as they seem to be suggesting quite mistakenly, but, rather, with the government conscripting any and every kind of service provider into its compelled disclosure scheme. If DOJ wants to override the decisions of the FISC through an amendment, it must be done through an amendment tailored to precisely that task. Unfortunately, the Turner amendment is about as well- tailored as a muumuu or, better said, a tent--meaning there is no tailoring at all. They just threw it all in there. Like Prego spaghetti sauce, this thing is said to contain whatever they want it to contain. Again, Senator Warner yesterday acknowledged that this language was poorly crafted, but instead of taking this as an opportunity to amend it, to fix it so that it did what it was actually purported to be intended to do and to go no further than that and to incur no additional grave risk of further meddling, of creating problematic situations for law-abiding Americans everywhere, they suggest that this will be a problem for 2 years and then we can fix it or that it won't be a problem for the next 2 years because we can have faith and trust that they won't abuse it and then we can fix it for real. In fact, he is willing to work with anyone who thinks it is a problem to fix it anytime--just not now. He doesn't want to fix it now. If the job is worth doing, it is worth doing it right now, the first time, not just so that we don't have to go back and correct it later but so that it doesn't create problems between now and 2 years from now when he proposes we address it for real. It is worth doing right today because the stakes are high. There is no reason not to fix this now and a lot of reasons why it will be problematic if we don't. Now, let's talk about the statutory deadline for FISA collection for a minute. The administration acknowledges that under the law, it can and will continue to conduct FISA 702 surveillance collection even if 702 temporarily lapses while we debate this. That is because the FISA Court has approved a certification within the last week or so that allows the government to continue 702 collection until April 2025. There is a provision of FISA that you might say sort of grandfathers in FISA Court certifications even if the law itself expires, meaning the FISA 702 collection program can continue in its entirety, without exception, until April 10 or 11, 2025, even if FISA 702 temporarily lapses between now and then, because all that matters was that FISA 702 was active, intact, not having lapsed as of the moment on April 11, just over a week ago, when the latest certification was issued by the FISC. Notably, the administration does not deny this. What it is saying instead is that companies will bring legal challenges and that they might refuse to comply with the government's directives to turn over communications. What I would like to know is, what is their evidence for this? The fact that a few companies briefly refused--briefly--to cooperate with the government back in 2008 when the predecessor to section 702, the Protect America Act, expired? Now, here is the problem with that argument: Those companies back in 2008 challenged this, and they lost in court. The FISA Court ruled in 2008 that surveillance could continue despite expiration of the law and that the companies had to comply. So this legal issue was itself settled on those terms 16 years ago-- not only that, but much more to the point here, Congress has actually made the law stronger, even clearer, even more direct since then, stronger on the government's side since then. The FISA Amendments Act includes language that wasn't in the Protect America Act saying that the FISA Court's approval remains valid notwithstanding any other provision of the law, including the sunset. You see, that language was added for the first time in December of 2018 in the same legislation that FISA 702 was reauthorized until December of 2023. When we extended the effective date of FISA 702 back in December of 2023, extending it until tonight at midnight, that language was reupped. It was enacted again. So that same language is intact. There is absolutely no ambiguity here. So it is absurd what they are saying, really. I mean, why would companies risk fines of $250,000 a day to make a legal argument that the FISA Court rejected 16 years ago? This is simply not a valid reason for us in the U.S. Senate to rush to enact laws as deeply flawed and as detrimental to American civil liberties as this one. All I am asking for is votes on amendments. We have a reasonable list of nine amendments offered by a bipartisan group of Senators reflecting almost every point along the ideological continuum of the Senate. If Chairman Warner and Senator Schumer would just stop blocking these votes, we could finish consideration of FISA today; we could wrap this up today. The problem is, they know the American people agree with us on these amendments. A lot of these are really, really popular. They agree with reforming this program to stop the warrantless surveillance of themselves, of the American of people. So certain Members of the U.S. Senate are somehow afraid that these votes must not be considered, lest they pass, because they are really afraid of what would happen if--when they did pass. Think about that for a minute. They don't want us to cast votes on something not in spite of its lack of popularity but because of its popularity. That should concern us all. To that end, I am going to try to move these things forward. Let's see if we can resolve this. I would love to be able to resolve this tonight, get it done tonight, get it over to the House of Representatives, which is still here, still in town. It is really convenient because, as they set this up a couple of centuries ago, we both work in the same building. They are just down the hall. I will personally walk it down there to them if that would help. So I ask unanimous consent, Mr. President, that the motion to proceed--I will hold on to that for a moment, and I will continue. Mr. President, I ask unanimous consent to extend my remarks for an additional up to 15 minutes.

Mr. LEE. Mr. President, I appreciate the thoughtful words that have been presented by my friend and colleague, the distinguished Senator from Virginia, who also chairs the Senate's intelligence oversight committee. It is unfortunate that he is unwilling to have these amendments even considered--especially unfortunate because it appears to be predicated on the risk of FISA 702 lapsing. Unless we do something on this in the meantime, it is going to lapse at least for a period of time. As I made clear a moment ago, the language we adopted in 2018 and that we reupped in December of last year, 2023, makes abundantly clear that FISA 702 collection can continue unabated through April of 2025 based on the recertification by the Foreign Intelligence Surveillance Act Court I believe on April 11. That is allowed to continue for 1 year following the certification as long as FISA 702 was still intact and not expired as of the moment of the certification, which it was. But even if that were not the case, if what we are worried about here is the clock, look, I have drafted--and I can't speak for anyone other than myself, but I have drafted and would gladly accept, if that really is the concern, a short-term extension of FISA 702 if by doing so that would make the difference between us being able to consider these amendments, vote on them, and send it back to the House of Representatives without doing so under the threat of this amorphous and unsubstantiated fear that FISA 702 collection is going to go dark, which, of course, it is not. But, look, once again we do find ourselves at the mercy of Senate Democratic leadership, with the majority leader in particular acting as the doorkeeper of the Senate, only allowing access to the floor to Senators who wish to offer their amendments and only if those amendments are amendments that the majority leader knows he can defeat. He is so determined to block amendments that he is willing to obstruct the quick passage of this bill. Now, I just offered to speed up the consideration of the FISA reauthorization bill passed by the House--RISAA, as it is known--that many of its advocates desperately want to see passed before midnight today in exchange for votes on nine amendments--just votes, not guaranteed outcomes but just votes commensurate with, consistent with, what the rules of the Senate already allow, with nongermane amendments set at 60 and germane amendments set at a simple majority threshold. That is really not too much to ask, but Senator Schumer and the chairman of the Senate Select Committee on Intelligence wouldn't take the deal. Why? Well, part of it is the time issue that I mentioned that an entity no less rightwing than the New York Times just earlier this week pointed out that argument really doesn't hold water, and if it does, I am happy to agree to a time agreement to extend it. The only other reason I can think of is there is a fear on the part of those who want RISAA to pass in exactly the form that the House of Representatives enacted it. They are afraid that some of these amendments might actually pass. Now, six of these amendments are germane to the bill. So, yes, they could pass with a simple majority vote. And that is exactly why some in this Chamber won't allow these amendments to be voted on. They don't want reforms to the bill. They would rather let the bill expire instead of letting the Senate do its work and amend the bill in a manner consistent with the expressed desires and, indeed, the demand from many quarters among the electorate--left and right, east and west, north and south. That is a sad commentary on where we stand in the democratic process today. Now, some might say that we can't pass these amendments because that would send it back to the House and then the House would have to repass it. But isn't that how the lawmaking process is supposed to work? I mean, that is exactly how article 1, section 7, contemplates it. It is never meant to be super easy to pass legislation for a bicameral legislature, and that is, in fact, what we have. Aren't we supposed to vote on amendments, not just for a show or a head pat but to improve the bill to see whether or not the House will take the modifications, rather than just assuming, as if we were adopting some sort of House legislative Chamber doctrine of infallibility, that what they wrote must be treated as if it were carved into stone and that we can't touch it. That is nonsense. That is not how this works. It is never how it was intended to work. It certainly should not be how it works in this circumstance--and not with a bill like this, where Americans at every point along the ideological continuum have concerns about this. Now, there are a number of us in this Chamber who feel this way. I have some very good friends on the other side of the aisle with whom I frequently disagree on a wide variety of issues but with whom I agree closely on this issue. We are reflective of our constituencies and of the American people, generally. And the House is actually in session this weekend. They are in the same building, still in session. So it is standing by ready to actually take up our amended bill whenever we can get it passed, but Senator Schumer and Senator Warner are preventing us from performing one of our most basic duties. We have got one or two Members who are acting as doorkeepers to the Senate. Meanwhile, the other 98 Members or so are being prevented from even having our improvements to the bill considered. And many of these, if not most of them, are pretty widely bipartisan. So this sort of thing, when it happens, renders us something of a legislative rubberstamp. It is not something that we aspire to. So, look, like I say, it is unfortunate that we couldn't come to an agreement on this. So I just ask the question: If the clock is really the enemy here, why not just extend it? I stand ready and willing, speaking for myself, to extend the clock, whether it is for a few days or a week or--so that we can have time to consider it. I am willing to do that. If we won't do that, then maybe we are not really hearing the real reason for the opposition. (Mr. BENNET assumed the Chair.) (Ms. BUTLER assumed the Chair.) (Mr. WELCH assumed the Chair.) (Ms. BUTLER assumed the Chair.)

Mr. LEE. So if that really is the concern--that is the concern I am hearing from some colleagues. A number of colleagues on both sides of the political aisle have been telling me--I have been talking about the need to vote on amendments. What a number of them are saying is: We can't do this because if we do it, it is going to expire, and if it expires even momentarily, it is going to be Armageddon; dogs and cats living together in the streets; stuff right out of the Book of Revelations; absolute chaos and pandemonium. So if that is the case, let's get it done now, but it is not the case. FISA 702 collection is not going to end. And these same companies that objected in 2008 and lost when the law was much less in the government's favor than it is now will remember what happened, and all they have to do is read. It doesn't take a rocket scientist to read the language passed in 2018 and again in December of 2023 to make clear that that collection may and indeed will continue. So in the spirit of moving this forward and getting it done tonight, I ask unanimous consent that the motion to proceed to H.R. 7888 be agreed to. I ask further that the following amendments be the only amendments in order: Lee No. 1840, Paul No. 1829, Marshall No. 1834, Wyden No. 1820, Hirono No. 1831, Merkley No. 1822, Paul No. 1828, Durbin amendment No. 1832, and Paul amendment No. 1833; further, that the Senate vote on the above amendments in the order listed, with the Paul amendments Nos. 1828 and 1829 and Merkley amendment No. 1822 subject to 60 affirmative votes required for adoption; that upon disposition of the Paul amendment No. 1833, the bill be read a third time and the Senate vote on passage of H.R. 7888, as amended, if amended, with 60 affirmative votes required for passage and with 2 minutes for debate equally divided prior to each vote.

Mr. LEE

Mr. LEE. Mr. President, I call up my amendment No. 1840, and I ask that it be reported by number.

Mr. LEE. Mr. President, in 2020, 77 Members of this body voted for this amendment, and I would love to see the same result today. According to the IG report following the Crossfire Hurricane investigation, there were a lot of FBI employees who appeared before the FISA Court who had made substantial misrepresentations to the FISA Court. It is one of the things that can happen in a nonadversarial courtroom setting. That is why this amendment that most of us voted for just 4 years ago does two things. First, it beefs up the ability to have amicus curiae representation so that there is an extra set of eyes, not individual lawyers representing any one single person, but an extra set of eyes there to defend the rights of individual Americans--individual Americans--about 50,000 of whom are queried without any warrant, in a typical quarter, as recently as 2 years ago. The second thing it does is it requires the disclosure to the court of all material, exculpatory evidence, or impeachment evidence--what we would call, in a courtroom, Brady and Giglio evidence--to the court.

Mr. LEE. This is not too much. We should all be able to support this just as 77 of us did in 2020.

Mr. LEE. Mr. President, I ask for the yeas and nays.

Mr. LEE

Mr. LEE. Mr. President, over the last few hours, I have listened to debates occurring on the Senate floor over the Foreign Intelligence Surveillance Act and specifically discussions surrounding section 702 of FISA, discussions surrounding, among other things, the FISA 702 reauthorization passed last week by the House of Representatives. That bill they passed last week is commonly known as RISA, and under RISA, there are a lot of conversations going on about what does and what doesn't concern Americans, what should or shouldn't concern Americans. Under this bill I am going to be talking about today, RISA--it is an acronym that stands for Reforming Intelligence and Securing America Act. Like so many other bills that get passed by Congress, RISA has a really Orwellian name. It purports to do something that, upon further inspection, it doesn't do, and in some cases, it does quite the opposite of that. So there has been a lot of misinformation being peddled by the purveyors of the cult of infallibility surrounding FISA and those who implement it, so I have come to the floor to dispel some of those myths. The first myth I would like to try to dispel today involves what exactly it is that we are talking about with the FISA 702 collection and what exactly it is that some of us find objectionable. Remember that under FISA 702, a collection that is supposed to occur under that section really doesn't trigger Fourth Amendment concerns. In fact, most of what they collect I am willing to assume and have reason to believe doesn't trigger Fourth Amendment concerns because it is there to collect information about foreign adversaries operating on foreign soil, doing things against American national security. We are not concerned about someone plotting a terrorist attack overseas as a non-U.S. citizen--we are not concerned about that person's Fourth Amendment rights. We are concerned about that person and what that person intends to do, but that person doesn't have Fourth Amendment rights--at least not rights that are cognizable under the U.S. system of government. That is why Congress was willing to enact FISA--to allow for the acquisition of intelligence on foreign targets operating outside the United States. But under FISA 702, there are some communications from some U.S. citizens that are, as we say, incidentally collected, that get swept up into the collection under FISA 702--meaning, if you are a U.S. citizen and you are in the United States and you have a phone call with someone, there is a possibility that that person is outside the United States and is not a U.S. citizen and might be under some sort of collection--some kind of FISA 702 collection effort. There is a possibility that when you talk to that person that that phone call is being recorded or that text message exchange or that email thread is being collected by U.S. intelligence Agencies, and we call that incidental collection. There are a lot of people who have come down here and have the audacity to claim that the Fourth Amendment has no role to play whatsoever under FISA 702. Now, in a broad sense, they have a point in that what FISA 702 was created to do--and I assume--I certainly hope that the bulk of what it does, the bulk of what it collects has no Fourth Amendment protection attached to it, but some of it does, and how you access that information after it has been incidentally collected by our government and then stored in a U.S. Government database under FISA 702--that matters. One of the lies that I have heard perpetuated on this very floor on this very day by some Members of this body is that somehow United States article III courts, Federal courts, have concluded that FISA 702 collection just simply isn't a problem, and therefore we have nothing to worry about here. That is misleading. It is misleading to a profound degree, especially because in some instances these arguments have been presented in a way so as to suggest that we have no Fourth Amendment interest, no reason under the Fourth Amendment to care about the querying of a specific U.S. person, a specific American citizen, to see whether or where or to what extent that person's private communications that are stored on the FISA 702 database exist--whether they exist and then what the contents of them are. In other words, if you want to search the FISA 702 database for a specific American citizen, you can figure out, first, whether there is information there; and, secondly, when you open it, you can read the contents of it, figure out what that person said, to whom, when they said it, how long they talked, and what else transpired. This is a question on which no Federal court in the United States has ever given its blessing, much less said that there are no Fourth Amendment ramifications from this. In fact, some of the case law that has been cited or referenced--indirectly, in some instances; directly, in others--seems to suggest the exact opposite. Each and every circuit that has addressed this has identified a distinction. We have got, in one step, the incidental collection of communications by a U.S. person who knowingly or unknowingly was connecting with a foreign national located overseas, who happens to be under surveillance under FISA 702. That is one question, a distinct question. We have come to accept the fact that some of that is going to happen. It is not the collection itself that presents the Fourth Amendment injury that we can remedy and must remedy here. It is, rather, the second question: whether the querying of 702 data in its 702 database for information on a specific American citizen implicates the Fourth Amendment, thus requiring a warrant in order to search for that American's stored private but incidentally collected information. Each circuit that has identified this second step to which I refer after the incidental collection--the query--each circuit that has identified that as a separate step has acknowledged that it presents different Fourth Amendment questions from the first step, and both circuits have declined to answer that question. It, thus, remains an open question. And it is my frustration with those who have come down to this floor and suggested directly and indirectly that this matter is closed; that it has been considered and decided by multiple circuits, no less; that we have got nothing to worry about under the Fourth Amendment here. That simply is not true. Let me read to you an excerpt from one of the cases most frequently cited. This is the ruling from the U.S. Court of Appeals for the Second Circuit, a case called the United States v. Hasbajrami. You can find it at 945 F.3d--again, decided by the Second Circuit in 2019. Here is what they said: But querying the stored data does have important Fourth Amendment implications, and those implications counsel in favor of considering querying a separate Fourth Amendment event that, in itself, must be reasonable. What kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment, and when (if ever) such querying of one or more databases, maintained by an agency of the United States for information about a United States person, might require a warrant, are difficult and sensitive questions. We do not purport to answer them here, or even to canvass all of the considerations that may prove relevant or the various types of querying that may raise distinct problems. Then another circuit, the Tenth Circuit--the Tenth Circuit, where I have argued dozens of cases, and that includes my home State, Utah, along with a number of other States in the West--decided another case that also recognized this distinction. This case was decided in 2021. It is called United States v. Muhtorov. It is found at 20 F.4th 558. In this case, the Tenth Circuit says that Mr. Muhtorov's Fourth Amendment argument, specifically on this point, ``asserts the government unconstitutionally queried Section 702 databases using identifiers associated with his name without a warrant. He contends that querying led to retrieval of communications or other information that were used to support the traditional FISA applications. But this is sheer speculation. There is nothing in the record to support that evidence derived from queries was used to support the traditional FISA applications.'' The Tenth Circuit then goes on to say: The record confirms that the relevant evidence did not arise from querying. We therefore do not address Mr. Muhtorov's second Fourth Amendment argument. Querying might raise difficult Fourth Amendment questions that we need not address here. So like the Second Circuit Court of Appeals, the Tenth Circuit Court of Appeals also acknowledged that that is a different question, a second question--one that almost certainly raises Fourth Amendment questions, Fourth Amendment questions that weren't addressed by that court. Notice, by the way, some of the language used. This highlights some of the problem, some of the reason why we need to be concerned about this. They said that there is nothing in the record to support where exactly that evidence came from. That is part of the problem, you see, with the Foreign Intelligence Surveillance Court, or the FISC, as it is sometimes known. It operates in secret. Having the FISC operate in secret for purposes limited to communications involving foreign nationals operating on foreign soil undertaking acts hostile to the United States of America, that is one thing. But we have reason to be concerned when they operate in secret and don't have additional legal requirements to follow with respect to a query specifically identifying a particular American citizen. We should all be concerned about that. We should be even more concerned about it, given this feature that the Tenth Circuit acknowledged, which is that there is almost no way of knowing or approving what they might gain. It is one of the reasons why more exacting standards are required under the law. The second broad misconception that I want to try to dispel--that has been thrown around a lot today, and I suspect will continue to be thrown around a lot today--is that somehow we are operating under a really, really tight timeframe--a timeframe that acknowledges that section 702 of the Foreign Intelligence Surveillance Act is going to expire at midnight tomorrow, and that if it does expire--which they are saying it will expire if we do anything other than just rubberstamp this ham-fistedly drawn up and passed legislation from the House of Representatives without doing our own homework, without dotting the i's and crossing the t's and making sure that they did their job right, which they did not--that the cost of that will be certain doom and gloom because FISA 702 collection will abruptly cease at exactly midnight tomorrow night. I would otherwise make mention here of the fact that we have known for months, since December, that April 19 at midnight this deadline was happening. You have seen a deliberate decision in both Houses of Congress. They have religiously, scrupulously avoided bringing it up until just days before that deadline occurs. So they have contrived the very deadline that they are now trying to use as leverage to manipulate our votes to prevent us from doing our jobs to make sure that the i's are dotted and that the t's are crossed and that the American people's Fourth Amendment rights aren't being steamrolled. Shame on them. I said if I had more time, I would go into that. But I won't because there is another much better argument to make here. They are lying. They are lying when they say that FISA 702 collection will end abruptly at midnight tomorrow. It will not. The reason we know it will not is because when they shamelessly reauthorized this thing in another eleventh-hour vote back in 2018, our foreign intelligence Agencies and the clever lawyers who work with them threw in language anticipating then that the next time around--that next time when the bill came due late last year in 2023--that there might be a moment then of hesitation because the truth would catch up to them by then that FISA 702 is rife with opportunities for abuse of Americans' Fourth Amendment rights. Recognizing that, they built into the legislative text, which they dropped at the very last minute and passed by the thinnest of margins, language to guarantee that, even if FISA 702 were to lapse, that as long as there was a certification by the FISC, or the Foreign Intelligence Surveillance Court, a recertification of the FISA 702 collection program broadly--not specific orders regarding specific targets, just the program broadly--that that certification would allow for all FISA 702 collection to continue for 365 days following the issuance of that certification by the FISC, even if during that 365 days, whether at the beginning or near the end of it, FISA 702 had lapsed. Now, just last week--in fact, I believe it may have been a week ago today--the FISC granted another FISA 702 program certification. What that means is that, because the language that was adopted in 2018 continued until December of last year, and, in December of last year, we punted this issue forward to April 19 of this year, they reenacted a version of that same language from 2018 into the 2023 short-term extension. So it says the same thing. And because we got, just last week, the FISC certification, that FISC certification and all 702 collection remain lawful 365 days into that, even if FISA 702 lapses statutorily in the meantime.

Mr. LEE. I will do so.

Mr. LEE. Thank you. I am glad to hear that we will be having votes tomorrow. We need votes tomorrow, for some of the reasons that I am discussing. We shouldn't fear those votes. There is a great song by Blue Oyster Cult: ``(Don't Fear) the Reaper.'' We are lawmakers. It is what we do. We cast votes. We vote on amendments. We shouldn't fear votes. We shouldn't fear doing our jobs. I have heard it said many times: If you don't like fires and you can't stand being in their presence, then you shouldn't become a firefighter. And if you can't handle taking tough votes, for heaven's sake, you shouldn't be a lawmaker. So that is what we need to be talking about. One of the reasons why people are fearing the reaper here, fearing amendment votes here--even though there is nothing to fear--they are wanting people to fear those amendment votes because they say: If we cast any amendment votes, if we depart in even the slightest degree from what the House, in its supposedly infinite wisdom, passed last week--with its ham-fisted draftsmanship and its manipulated, truncated approach to voting on amendments over there--that if we depart from that to even the slightest degree, it will be Armageddon, dogs and cats living together in the streets. It will be Armageddon stuff playing out in America. We are all going to blow up. We are all going to die because all FISA 702 collection is going to come to an abrupt halt. That is a damned lie, and they know it is a damned lie because they guaranteed that that would not be the case. When I bring this language up to them, they have the audacity to tell me: Oh, no, but that is all great and everything, but the reason it would halt is because some of the service providers, some of the third- party companies through whom they have to work to collect a lot of this information, they are not smart enough to realize what it says. So they are going to fight it, and some of them say they are going to sue us. Yeah. Good luck with that. Good luck with that theory. In the first place, if they are relying on the fact that they would sue the Federal Government in order to not have to participate with them, I really would like to see that because it is never going to happen. And if it did happen, they would lose. And if they did try, it would take so long to do it that it wouldn't do them any good, especially because they are wrong. The clock is, in one sense, ticking, but we have got an entire year left before FISA 702 collection would even stop at all. Now, don't get me wrong. I am not thrilled about that. That doesn't make me happy. It was a manipulative thing to do when they added it. It was a manipulative thing to do when they extended it using the same language. But it is the law. And if they want the benefit of it, which they clearly did just a few weeks ago--just like 3 months ago--then, you know, if you pick up that stick, you are picking up both sides of the stick. And the fact remains that the law makes abundantly clear that FISA 702 collection is not going to halt at midnight tomorrow. It is not going to halt until approximately April 10 or 11 of 2025. Now, that does not mean we should wait until then to enact legislation addressing these issues and we need not act until then, but it sure as heck means that we can at least take the time to do our own work. There is a reason why we have a bicameral legislative branch. Washington described the Senate as the cooling saucer; tea would come over sometimes very hot from the House, and it would have time to cool over here. This tea hasn't had any time to cool, certainly not enough time to cool, much less be aired and understood by those whose rights may be affected by it. So let's do away with those lies at the outset. It is completely fake news; it is a complete, darned lie to say that courts have weighed in and said that there is no problem with the U.S. person queries, to go after a U.S. person's private communications incidentally collected under FISA 702 and stored on a FISA 702 database. Now, look, I get it. That doesn't fit well onto a bumper sticker. Nobody is going to have that embroidered onto a pillow, although someone should, but it is true. Second, FISA 702 collection is not going to end tomorrow at midnight. It is not going to end for almost a year. So let's get over ourselves, and let's get over the lies and deal with the actual truth. All right. Let's talk about RISAA again. I want to talk specifically about RISAA and some of what RISAA does. Now, a lot of people voted for RISAA over in the House, saying: Oh, it does so much good. I voted for it even though I have concerns with warrantless backdoor searches on Americans. I have got concerns with that, too, but it did so much good, so many reforms. Just so many reforms. Can't even count them. Reforms are so good. You can't let the perfect be the enemy of the good. Nonsense. Most of those reforms are fake. Some of them are worse than fake. In fact, I could make an argument that RISAA amounts to a net loss for Fourth Amendment privacy interests. Those folks over there who tell themselves that to justify their votes, they are kidding themselves, absolutely kidding themselves. Let's go through some of the reasons why. When it comes to backdoor searches of American citizens, the bulk of RISAA is just a codification of preexisting internal FBI procedures, the same procedures that continue to produce illegal queries of Americans' communications. In fact, you know, I have been here since 2011. I have been on the Judiciary Committee the whole time, had opportunities to have conversations with FBI Directors serving under three different Presidents, different political parties. They have all told me variations of the same thing over the years: Don't worry about it. We have got procedures to stop it. These aren't the droids you are looking for. You really have nothing to worry about. In fact, you are kind of stupid for even assuming that this is a problem because, in any event, we at the FBI, we are serious about this stuff, and we have got procedures that will stop it. Well, fool me once, shame on you. Fool me twice, shame on me. Fool me hundreds of thousands of times, that is not acceptable, not to anyone. Look, RISAA fails to address the worst of warrantless 702 surveillance. It just does. It codifies the existing FBI requirement of having prior approval from the Deputy Director of the FBI, not from an article III court, a normal court, not from the Foreign Intelligence Surveillance Act Court--or the FISC. And it has this requirement only for sensitive queries involving a U.S.-elected official, a Presidential appointee, or an appointee of a Governor, political organization, U.S. media organizations, and so forth. And then, for queries of religious organizations or batch queries, RISAA requires preapproval, again, internal FBI approval only, from-- get this--an FBI attorney. What could go wrong? Great. So the Deputy Director of the FBI, the current occupant of the legacy position once held by Andrew McCabe. I am sure that will make a lot of Americans feel a lot better. I am sure a lot of Americans will feel a lot better also knowing that the likes of Peter Strzok and Lisa Page won't be involved in this. Look, there are a lot of great FBI agents out there, rank-and-file FBI agents, a lot of great work that they do. The top brass at the FBI is not held in as high esteem as they once were. In fact, that is putting it really, really mildly and indeed euphemistically--not just depending on your political leanings but based on what they have done, based on the number of times we have been lied to, based on the number of times we, as Members of the U.S. Senate and members of the public, the voting public, we have been given assurances that time and time again that have just turned out to be dead wrong. So it is as though, under RISAA, they say: Hey, Mr. Fox, come on in. Here are the keys to the henhouse. Have fun. Get stuff done, and use your power and your keys responsibly. I am sure you won't be tempted to do otherwise. What? Do they think we are stupid? Do they think the American people are stupid? They are not. They should know better. Shame on them, and shame on our counterparts in the House of Representatives for thinking that this is anything but insulting to the American people. They say: Oh, don't worry about it. We have FBI internal controls, FBI internal controls. We are putting the same darn people in charge of this, the same people who have manipulated and abused this over and over again. And we have said: You are in charge now. You will be employing the same sort of reviews that you have employed on the honor system in the past, knowing full well that the American public can't see anything that you do. And we are supposed to trust you with that? This is crazy. This is the same FBI that approved the surveillance of President Trump's campaign and has failed to prevent illegal queries year after year after year, even after denying that they don't happen. In all cases involving Americans but especially in these sensitive cases, outside checks and balances--actual checks and actual balances-- on the use of surveillance authority should be firmly in place, but alas they are not, nothing like them. In addition to narrow queried preapproval requirements, RISAA codifies additional changes to some of these internal FBI procedures regarding the abuse of 702 queries of U.S. citizens by its agents. But these internal procedures have not stopped violations, thousands of which are occurring every year. In fact, we have had hundreds of thousands. Until last year, I think we had over--it was in the hundreds of thousands, like over 200,000, occurring several years in a row until last year when they ramped down a bit. And in the meantime, all while telling us that the same darn procedures that they are now codifying, putting the same people in charge of enforcing them, of providing this oversight--that those same people are now going to be put in charge of making sure that they comply with the same requirements they have already falsely been claiming to follow. So what exactly is this going to stop? Well, it didn't stop the FBI with the same personnel, employing the same standard from, I don't know, let's think about the guy, the unsuspecting guy who wanted to rent an apartment and, unbeknownst to him, the guy who owned the apartment was an agent who decided that he would run the would-be tenant through the FISA 702 database. Or what about the agent who had some kind of an unparticularized suspicion or hunch, something that wouldn't even most likely justify a Terry stop, that his father might be cheating on his mother, and he therefore ran his dad through the FISA 702 database. Or what about the unsuspecting 19,000 donors to a particular congressional campaign, all of whom were run through the FISA 702 database? Or what about the Member of Congress who was run through the FISA 702 database? These are just a few of the people we know about. Through some miracle, we have been able to learn about the existence of those very, very inappropriate, very, very unlawful, very indefensible searches-- searches approved against the backdrop of the same procedures, under the supervision of the same people holding the same positions at the FBI. So forgive me if I don't think that is necessarily going to change a lot. Now, RISAA purports to rein in warrantless searches of Americans' information by ending the practice of querying data to find evidence of a crime unrelated to national security. However, such queries represent just a tiny fraction of warrantless violations of Americans' privacy. Keep in mind, what we are talking about here are those that are deemed solely for that purpose. They are there solely for the purpose of looking for evidence of a crime. That was never a significant percentage of the problem. It was always a tiny, tiny portion of the problem. And in any event, this is entirely within the FBI's own ability to circumvent just by recharacterizing the nature and purpose of the query in question. (Mr. King assumed the Chair.) You know, of the more than 200,000 backdoor searches performed in 2022, the prohibition would have denied authority in exactly 2 instances--2 searches. And in both of those instances, the FBI could easily have gotten around them by characterizing them differently than they did. Again, this is not serious. This is not the kind of reform that the American people are demanding. It is certainly not the kind of reform that they deserve. Now, when it comes to transparency and surveillance oversight, there are a number of purported reforms that many Members of the House of Representatives who voted for this are clinging to with all their might, insisting that ``oh, these do a lot of good; these fix the problem.'' But let's look into that. Let's look at what RISAA does to amicus participation. Remember what ``amicus'' means. ``Amicus'' is short for ``amicus curiae.'' The plural of ``amicus curiae'' is ``amici curiae.'' It means ``friends of the court.'' And ``amicus curiae'' is a ``friend of the court.'' Back in 2015, a bipartisan effort that I led on the Republican side in the Senate, called the USA FREEDOM Act, was passed by Congress and signed into law by President Obama. It imposed a number of reforms. It ended the bulk of metadata collection, among other things. It also imposed some requirements related to the FISC, allowing for the participation of an amicus curiae before the FISC in a number of circumstances--because, remember, in the FISC, unlike in ordinary court, its members consist of presidentially appointed, life-tenured article III Federal judges. But in their capacity, while they are serving in their capacity as FISC judges, they sit in a courtroom without opposing counsel. Only the government has historically been present in those circumstances. And because of the sensitive nature of some of the issues that we have described today, we created in the USA FREEDOM Act provisions requiring the participation, in a number of circumstances, for amicus curiae. There have been no complaints about this not working well--none. I am not aware of a single instance where amicus participation before the FISC has caused a problem. And yet, consistent with its pattern and practice of scanning the horizon, looking high and low to find a solution in search of a problem, those loyal to the intelligence Agencies over on the House of Representatives side have put in place some very significant restrictions on amici before the FISC by limiting the arguments amici can raise and by limiting those who can even serve as amici in 702 proceedings. Again, not one complaint that I am aware of has been raised on this. Not one reason has been provided as to why they shouldn't do this--not one. But they still said we have got to limit them. RISAA's amicus provisions will actually weaken oversight, instead of adopting the reforms that passed the Senate, 77 to 19, in 2020, as part of the Lee-Leahy amendment, which would have strengthened oversight by bolstering the role of amici. By the way, that measure passed in 2020 by the Senate, 77 to 19, was part of a legislative package expected, at the time, to move over in the House, where it would have passed by correspondingly overwhelming bipartisan supermajority margins over there, but for the fact that that vehicle, for reasons unrelated to the Lee-Leahy amendment, caused that bill to stall out. Now, 77 to 19, those are the margins by which this passed the Senate just a few years ago. That Lee-Leahy amendment would have created a presumption that amici should participate in cases that raise critical issues--such as those involving the First Amendment-protected activity of a U.S. citizen or any other U.S. person, a request for approval of a new program, a new technology, or a new use of an existing one, a novel or significant civil liberties issue with respect to a known U.S. person or a sensitive investigative matter--while giving the FISC the ability to deny participation where there was some particularized reason why that would be inappropriate. Amicus participation is critical, especially so where you have this kind of ex parte proceeding. An ex parte proceeding is one in which only one side is represented by counsel. It is just the government's lawyer and the judge or judges. Without an amicus, there is no one there to look out for, to protect, to advocate for the rights of the American public. RISAA requires the government also to provide only limited and inadequate presentation of what we call exculpatory evidence, the type of evidence required by United States v. Brady in an ordinary Federal court. By contrast, the Lee-Leahy amendment would have required a full presentation to the court of all material, exculpatory evidence that might come into play there. And this is absolutely necessary. Now, why these guys chose to weaken that, I think, is consistent with--I mean, we can only surmise what the reasons might be, but I think they have a lot to do with the fact that, of course, no government Agency wants additional responsibilities or additional burdens. It makes additional work for them. And that is the whole point. The whole point of the Fourth Amendment is not to make the government's job more efficient. I am sure law enforcement, domestically, would be a whole heck of a lot easier if there were not a Fourth Amendment. That is not a reason to jettison the protections of the Fourth Amendment. And even though I am sure some of the legitimate foreign intelligence gathering operations of our intelligence Agencies would be made easier, less burdensome if we just threw all of these protections to the wind and pretended that there aren't legitimate reasons related to Fourth Amendment interests to be concerned here, should that make it easier, that doesn't make it the right thing do. It doesn't mean that it is consistent with the letter and spirit of the Fourth Amendment. Look, this requirement about exculpatory evidence, as it is contained in RISAA, just provides a mere veneer. It is a Potemkin village version of the real thing, just the illusion of protection. This provision draws near to the Fourth Amendment with its lips, but its heart is far from the Fourth Amendment. The FISC should be given all exculpatory material evidence before a proven surveillance. We have to remember, in December of 2019, the Department of Justice IG reported 17 errors and omissions in the FBI's FISA applications, requesting authority to surveil President Trump's Presidential campaign adviser, Carter Page. Unsurprisingly, this included the failure to disclose the unreliability of the Steele dossier, an opposition research document with largely fabricated, unsubstantiated claims. Now, unfortunately, the April 2020 memorandum from the inspector general to FBI Director Wray proved that this was not an isolated incident. After a sampling of 29 FBI applications for FISA's surveillance of U.S. persons, he found an average of 20 errors per application. The Lee-Leahy amendment that passed, in 2020, with 77 votes in this Chamber would have required that the government provide all of that material--all material, exculpatory evidence to the FISC--since the U.S. person being surveilled is excluded from the FISA proceedings. Next, we will turn to another provision that I think persuaded, unfortunately, some Members of the House of Representatives to support this bill, even though it lacked adequate substantial Fourth Amendment reforms. I am referring, of course, to the protections directed specifically at Members of Congress. The RISAA bill provides protections not available to others, specifically for Members of Congress. Think about this for a second. One of the reasons why a number of people felt comfortable voting for it was because of the belief--the mistaken belief, as I will explain in a minute--that this protects rank-and-file Members of the House and the Senate. I don't believe it even does that. But, even if it did, think about what that says. Anyone persuaded by this is tacitly admitting--if not to the public, at least should admit to themselves--that, No. 1, this is enough of a concern that they ought to be worried about it, such that they ought to provide some sort of language requiring accountability for when they do 702 queries on individual Members of Congress. So they are acknowledging that there is a problem, that it can be abused. But then they are providing a type of accountability available only to Members of Congress. That is kind of creepy. If this thing is bad such that it needs protection, why not make that protection or other similar protections available to Americans broadly--to all Americans? Why limit this to Members of Congress? So what it does is it requires notification not to all of Congress but notification to congressional leaders--meaning to the law firm of Schumer, McConnell, Johnson, and Jeffries and to the top Republican and top Democrat of the House Intel Committee and the top Republican and top Democrat of the Senate Intel Committee. Sometimes, collectively, we refer to this as the Gang of 8. It requires notification to them if FBI queries the name of a Member of Congress, and RISAA requires prior consent from the Member of Congress in question, but only if it wishes to perform a query on that Member for purposes of a defensive briefing. Otherwise, if it is not for the purpose of a defensive briefing, that Member doesn't get notified. But the law firm of Schumer, McConnell, Johnson, and Jeffries gets notified, and the Intel bruhs--you know, the top heads of the Intel Committee on both sides of the Capitol--they get notified too. Nobody else does. Now, it is not like they are going to feel inclined to notify the Member. In fact, they are probably prohibited from doing so. Who exactly does that protect? Why is that a good thing? If the querying is being done, then you are allowing a tiny handful, 8 Members out of 535 sworn and currently serving Members of the legislative branch, who have been elected by their respective States--8 of them, just 8 of them--to get to know what they are doing about any and every other Member of Congress. How is that going to help anyone? In fact, how is that not something that could actually work to the disadvantage of those being surveilled, except in the specific context of a defensive briefing? This is crazy. This is throwing gasoline on the fire. In addition to giving the keys of the henhouse to the fox, you are then dousing the whole thing with gasoline and then adding more gasoline to it after it is on fire. As much as anything, these are fake reforms. And to the extent they are not fake, because they are available exclusively to Members of Congress, they are a slap in the face to our constituents, who receive no such protections--none. Including those protections shows that the drafters of RISAA knew that there is a problem. It shows that those who voted for it, who relied on this, to their detriment, understand how invasive these queries really are. And that is why they want to protect Members of Congress, even though they are failing to do that here, unless they happen to be in the Gang of 8. That is why they are claiming to protect themselves from being subjected to 702 queries focused on them. In reality, these protections for Members of Congress aren't just self-serving, they are elusory. The consent requirement is flimsy, at best, and there is an exception that quite arguably swallows the whole rule, even where it might otherwise apply. And the FBI can, based on the way it categorizes the search in question, it can get around it, the consent requirement, even in the narrow circumstances where it might otherwise apply. So this thing is a fake. But it is worse than fake. I actually think it would be a detriment to privacy and even to the interests of most Members of Congress. Then we get to one of the big enchiladas of this: the electronic communication service providers expansion, the so-called Turner amendment. And it was basically drawn up and thrown together and thrown into the bill at the last minute, rubberstamped by the House. This particular provision of RISAA authorizes the largest surveillance expansion of this type of surveillance on U.S. domestic soil since the PATRIOT Act. Egregious Fourth Amendment violations against the United States and its citizens will, I am confident, increase dramatically if this thing is passed into law. RISAA, as amended by the Turner amendment, would allow the government to compel a huge range of ordinary U.S. businesses and individuals--exempting only an odd assortment of entities, including hotels, libraries, restaurants, and cafes--to assist the government in spying on U.S. persons. Currently, the government conducts 702 surveillance with the compelled assistance of electronic communications service providers or ECSPs. Historically, the definition of ECSP included those entities with direct access to Americans' electronics communications; for example, Google, Microsoft, Verizon, et cetera. This new proposition would allow the government to compel warrantless surveillance assistance of any provider of any service that has access to equipment on which communications are routed and supported. This would include a huge number of U.S. businesses that provide Wi-Fi to their customers and, therefore, have access to routers and communications equipment. Apparently, this provision is the result of the intelligence community's ire at being told by the Feds that data centers for cloud computing do not have to comply with FISA-compelled disclosures. House Intel Committee members claim it was a narrow fix to allow the government to compel information from a single service provider. I don't buy it. The reason I don't buy it is because if that is what it was supposed to do, they would have written it differently. They didn't write it that way. They have smart lawyers. They are smart people. They know exactly what they are doing. But even if they didn't know what they were doing, we know what they did, and it is not good. The fix was deliberately written, you see, in really broad terms to conceal the particular provider at issue. As written, the provision could be used to compel any service provider that could potentially access communications equipment including, potentially, janitors, people involved in repairs, plumbers, to assist NSA in spying. Nothing in the language provides any backstop, any limitation of the unfettered use of this newly, dramatically expanded authority. Moreover, because these businesses and individuals lack the ability to turn over specific communications, they would be forced to give NSA access to the equipment itself. The NSA would then have access to all of the communications transmitted over or stored on the equipment, including a trove of wholly domestic communications. It would be up to the NSA to capture only the communications of foreign targets. No disrespect to the fine men and women who work at the NSA, but it is one of the most impenetrable--necessarily impenetrable--Agencies that has ever existed in any government anywhere. Yet no visibility, no transparency, no oversight there that is going to make any difference. Giving the NSA access to Americans' communications on such a broad scale is a recipe for disaster, and it is contrary to the purportedly narrow focus of 702 on foreign targets. Look, I have outlined some of the myths surrounding this whole FISA 702 debate. I explained that the collection under 702 is not going to go dark if something doesn't pass immediately, meaning we are not forced with this obstinate choice between having to accept lock, stock, and barrel with no amendments, with no opportunity to review it, to air it, to improve it, to make it better, to address the disaster that is the Turner amendment, to address the hypocrisy and the sham that is the Member of Congress exclusive protection; to address any of the glaring omissions, including the failure to add any type of a warrant requirement for communications--private communications--of U.S. citizens incidentally collected and stored on a 702 database. These are all lies that we can't address any of those to try to include in this thing because FISA 702 collection is going to end abruptly, tragically, at midnight tomorrow. We already established this language that was first adopted in 2018 then reupped, renewed, and reenacted in December of last year to extend this deadline to April 19. It makes clear that once the FISC has issued a recertification of the program, 702 collection may continue unabated, undisturbed even if FISA 702, itself, expires in the meantime, as long as it is still valid at the time of the certification. That certification was renewed a week ago, and so we have a year. We have a year before that ends. Let's get rid of this nonsensical, unbelievable lie that is being told that we are all going to die if we don't do it. What do we need to do? First, we have to have an amendment process. We have to have an amendment process that, among other things, allows for a probable cause warrant to be the backstop of any U.S. person query. We have language that I support that is being offered in a Durbin amendment that would require that. And it would attach at the moment they want to review the content, they want to do a U.S. person query, to figure out whether it is there in an emergency or in some other circumstance for some reason. Even if they do that, before they open it, before they review the substantive content after doing a U.S. person-specific query, they would have to get a warrant. Mr. President, I ask unanimous consent that I be allowed to finish my remarks within the next 15 minutes.

Mr. LEE. So we need a probable cause warrant requirement. Now, all of the sky-is-falling predictions about why that would be so bad to have a probable cause warrant requirement is really not addressing the facts here. Look, I think we would have been just fine had we adopted what is known as the Biggs amendment--you know, the amendment that failed by a tied vote 212 to 212. And it failed, I believe, because they gaveled out the second they saw that it was tied, even though there were still more Members coming to the floor to vote--more Members coming to the floor to vote--I was over there at the time--who were believed to be intending to support it. They gaveled out the second they thought they could get away with it and make it fail. One of the reasons why it didn't get more votes is because of the scare tactics associated with that and overblown, exaggerated concerns that it would just make it impossible. You know, I heard members of the intelligence community argue that it would just necessarily bring an abrupt halt to everything we do in this area. It is not credible. It is not true. But even if that were true, let's indulge that for purposes of this discussion. The same concerns are minimized by the warrant requirement in the Durbin amendment. In the Durbin amendment, the warrant requirement would be triggered not at the moment of the query itself, but at the moment they want to open the results of the query so they could see whether the particular U.S. person, the U.S. citizen addressed in the search, triggered some kind of response. But then before they could open the search result, read the contents of the email, listen to the contents of the phone calls, read the text messages, whatever it is, then they would have to go get a warrant, unless they make the same argument here and scare people yet again because this is what they do and they get away with it because they are the spies, the spy Agencies: Trust me, trust me, people are going to die unless Congress does exactly what I say. That is what they say over and over again. You know, it gets really irritating when they say the same thing year after year. But lest they gain any advantage here by coming up with that, it would affect such a tiny, tiny portion of all--you know, U.S. person queries are a tiny fraction of all queries run on the FISA 702 database. I am told it is, likewise, a tiny percentage of all U.S. person queries, something like 1 or 2 percent, that would be implicated by the Durbin amendment's warrant requirement. According to Senator Durbin, I believe the estimate he provided was about eight queries a month would trigger that. That is not hard to comply with at all. Those of us who have been prosecutors know it is not hard to get a warrant, especially in a program as huge as FISA 702. To suggest that it is just unduly oppressive for them to get up to eight warrants per month when querying specifically for the private communications of U.S. citizens on the 702 database, no, don't tell me that is unduly burdensome. That is not credible. So we need that amendment. It is not the only amendment we need, but we definitely need that one. Without that one, I think this bill is an absolute mistake without adopting that amendment. There are other amendments as well. One that I will focus on is the amendment I am running providing necessary reforms to the amicus curiae process requiring the government to disclose exculpatory evidence. Yes, it is essentially the same amendment. It does exactly the same thing as the Lee-Leahy amendment but introduced now as the Lee-Welch amendment. With a certain degree of poetic symmetry, I have united now with the Senator from Vermont who took the place of our dear former colleague Senator Pat Leahy. Peter Welch is now cosponsoring this measure with me, and we introduced what is the Lee-Welch amendment, which would do as I described a moment ago. It would beef up the amicus curiae process participation, which has been badly weakened and undermined by RISAA, and it would restore it, making it just a little bit more like the adversarial process that is the hallmark of our country's legal system, designed to protect our individual rights. It would require, among other things, that at least one of the court- appointed amici have expertise in privacy and civil liberties unless the court found that such qualifications were inappropriate in a particular case. It would also require the FISC to appoint an amicus in cases presenting a novel or a significant interpretation of law or significant concerns with First Amendment-protected activities of a U.S. person, a sensitive investigative matter, a request for approval of a new program, new technology, or a new use of an existing technology with novel or significant civil liberties issues with respect to a known U.S. person. All of these things are important, and it is also important that they be required to provide the full panoply of material exculpatory evidence to the FISC as they are going before the FISC in cases involving U.S. person queries under 702. It is really important that we have these reforms because, again, remember, we suspend what would otherwise be significant restrictions in this arena. We suspend those. Because we suspend them and because this is a secret court, it is that much more important to be careful. We still understand that because of the risks associated with it, it is still not a court that would operate in a public way, but at least there would be another set of eyes in there looking at it. A set of eyes under some circumstances is allowed to be in there now but maybe not as often as they should be, and that will be weakened if we just pass RISAA reflexively. RISAA would actually weaken transparency in surveillance oversight, very significantly and very dangerously. So, look, I am about out of time, and so I need to wrap this up. Let me just close by saying this: We can't fall for the lie every time, and we certainly can't fall for the lie every time and then claim surprise when it gets abused again. The American people have seen over and over again that there is some risk in this. Sure, these things have made us safer, and we like those things that have made us safe. I don't personally know any American who is concerned--who stays up late at night worrying about FISA 702 surveillance of a foreign adversary operating on U.S. soil. That is not a zone where Fourth Amendment interests are cognizable in our legal system, and it is not something that Americans I know spend time worrying about. But they are worried when they learn that a number of innocent, unsuspecting Americans have their own private communications incidentally collected or swept up in what might well be legitimate operations associated with FISA 702. It is the querying of their name, of their personal identifiers, their phone numbers, the email addresses of a known U.S. citizen, looking for them--it is a great cause of concern to many. That is my principal focus, and it is why I am focused so heavily on the Lee-Welch amendment and on the Durbin amendment, of which I am also a cosponsor, requiring a warrant for them to access the contents of those private communications of U.S. persons when they are queried on the FISA 702 database. That doesn't mean these are the only reforms that are necessary. There are a handful of our other colleagues who have introduced other reforms. One of them addresses the Turner amendment. This breathtakingly broad expansion of FISA was written in a ham- fisted way. I understand that there is a legitimate reason for it, but the way it is written, one has to wonder about what the subjective motives of those writing it may have been. But even if you assume for purposes of argument that they were pure, their draftsmanship sure wasn't pure, and we have to fix that. We have to fix that. There are some other amendments that also need to be considered. You know, I am not sure how I feel about every one of these amendments, but, you know, when you get elected to the United States Senate, one of the things that differentiates this body from other legislative bodies--we pride ourselves on supposedly being the world's most deliberative legislative body. We need to act like it. Our rules and nearly 2\1/2\ centuries of tradition, precedent, custom, and practice are such that we are expected to vote on each other's amendments even when we don't necessarily agree with them. Even those amendments that I don't feel great about, that I might well oppose, perhaps even vigorously, I want them to have votes too. We can't fall for fake scare tactics telling us that Armageddon will be upon us if we get past tomorrow night at midnight because it is just not true. Nor can we fall for the lie that has been repeated on this floor today that Federal courts have addressed this issue and concluded that this issue raises no Fourth Amendment concerns. That is a lie. To the extent that it is being spun innocently or just negligently, then I guess in that circumstance, we wouldn't call it a lie; we would call it a badly, badly mistaken argument. But it is not something that should persuade us. Just let us vote. We have to end this practice of filing cloture and filling the tree. That is fancy Senate parlance for preventing people from offering up amendments and having those amendments voted on. Every time you do that, you bolster the disproportionate, hegemonic power of the law firm of Schumer, McConnell, Johnson, and Jeffries so that you make them superlegislators while subordinating all of us and, more importantly, those who elected us from a pretty important legislative process. I implore my colleagues to think about them--those who voted for us and those who didn't vote for us but those to whom we stand accountable--before reflexively enacting this again. And I implore our Senate majority leader to just let the people's elected lawmakers vote. I yield the floor.

Mr. LEE

Mr. LEE. That is exactly what he said. That is exactly what he said when he made this motion, because he stood up and he said: I raise a point of order that impeachment article II does not allege conduct that rises to a level of high crime or misdemeanor.

Mr. LEE. Madam President, what we witnessed today is truly historic. This has never occurred. Nothing like this has ever occurred. Under article I, section 3, clause 6, we have been given a duty. We have been given the sole exclusive power to try all impeachments--try all impeachments--not some of them, not just those with which we happen to agree, not just those we are happy that the House of Representatives undertook to prosecute, but all. The word ``try'' is also significant. It refers to the word ``trial.'' It is the same word. It is a proceeding in which the law and the facts are presented to finders of fact--in front of judges--in order to reach an ultimate disposition. In a criminal proceeding, it would be an ultimate disposition culminating in a verdict of guilty or not guilty. We were precluded from doing that job today. We were precluded from doing so in a way that is not only ahistoric and unprecedented but counterconstitutional. Nothing could be further from the plain structure, text, and history of the Constitution than that. Let's look at the arguments that we would have heard, that we could have heard, that we should have heard today had things unfolded as they were supposed to, had things unfolded in a manner consistent with the oath that we took first when we were sworn in as U.S. Senators. We were all required to take the same oath to the Constitution when we did that. (Ms. BUTLER assumed the Chair.) But also the oath that we took just a few hours ago in this very Chamber in this very case to decide this case impartially. What would we have heard? Well, first and foremost, regardless of what you think about what a trial consists of or how different people might cleverly define the term, a trial will always, at a minimum, involve lawyers, involve lawyers. Unless the person is proceeding pro se, you will always have lawyers there. At least one side will always be represented by lawyers in 99.9 percent of all cases. Both sides will. You will hear from lawyers. We didn't hear that today. We didn't hear from the committee of individuals appointed by the House of Representatives to be the House impeachment managers or prosecutors. What else would you expect to hear? Well, you would hear evidence. Evidence would be brought in. Sometimes trials in the Senate involve bringing in evidence in a documentary form. Other times, you might have witnesses. We didn't have any witnesses, we didn't have any documentary evidence, other than that which was charged. So let's talk about what was charged and what evidence we could have, would have, and should have heard had we done our job today. Well, the accusations in this impeachment trial, they fit into two categories. Category one, Senate article I of the Articles of Impeachment, article I alleges that Secretary Mayorkas repeatedly, defiantly did the exact opposite of what Federal law requires; namely, that under myriad circumstances, eight or nine different statutory provisions that he violated, he was required to detain people whom he did not detain. But it is not just that he didn't do what the law required; he did the exact opposite of that. Instead of holding them until such time as they could be removed or alternatively adjudicated to have the status, whether in the context of immigration parole or asylum or otherwise, he just released them and, in many cases, gave them work permits. We would have heard evidence about the fact that memoranda issued by Secretary Mayorkas within the Department of Homeland Security didn't just tolerate this result; they instructed this result. We would have heard evidence about the fact that at the outset of the Biden administration, Secretary Mayorkas, when asked what he would tell those traveling through the caravans, those paying many thousands of dollars per head--in some cases tens of thousands of dollars per head--to international drug cartels. Instead of telling them, Don't do it, he said, Maybe don't do it yet; give us a few weeks before we are ready to receive you--showing intention, aforethought to facilitate the violation of Federal law. We would have heard evidence about how he instructed his own department to violate those rules. We would have heard evidence about how directly contrary to Federal law those things are and contrary to his own oath and his own duty. Now, as to article I, the Senate chose to dispose of this today by doing something it has never done, in any context anywhere close to this, with a point of order that said as follows. The majority leader stood up, defiantly refusing to have the Senate perform its obligations and called a point of order. He said: I raise a point of order that impeachment article I does not allege conduct that rises to the level of a high crime or misdemeanor as required under article II, section 4 of the United States Constitution and is, therefore, unconstitutional. Now, let's talk about that for a minute. Now, had we been permitted to have a trial--alternatively, had we been permitted to go into executive session; alternatively, had we been permitted to go into closed session, as several of us moved today--we would have been able to hear arguments about this, about how wrong this is, because that is what you do when you have a trial: You hear evidence; you hear arguments from lawyers; and when someone makes a legal argument, as Majority Leader Schumer just did, you can consider their implications and, most importantly, consider whether or not the argument is right. Because when we are sworn in, in a trial of impeachment, our job is to serve as both finders of fact and adjudicators of law relevant to this case. We were denied that opportunity. So while we are exploring what we would have heard had we gone to trial, had we done our job, let's also explore what would have happened in a real trial had somebody made an actual motion and we had been permitted to do our job. But, look, first and foremost, this is patently absurd to argue that a willful refusal to obey the law that one has a sworn solemn obligation to perform is somehow not impeachable. We don't have to look too far in order to find support for the conclusion that this is an illegitimate, unwarranted, unsubstantiated claim--one that is directly contrary to law. In fact, we don't have to look further than President Biden's own lawyer. The Solicitor General of the United States, who holds a special position within our Federal Government, performs functions that many people mistakenly associate with the Attorney General. But it is, in fact, the Solicitor General who is the United States Government's chief appellate advocate and chief advocate before all proceedings at the U.S. Supreme Court. There was an exchange in a case argued last term in the Supreme Court of the United States called United States v. Texas. In that case, the Supreme Court heard arguments from the State of Texas about whether or not this administration's approach toward these same provisions of law is acceptable, whether or not they could challenge them. Now, unfortunately, the Supreme Court reached a conclusion--a conclusion with which I strongly disagree. And the Supreme Court concluded, ultimately, that the State of Texas lacks standing to challenge Federal policy--Federal policy along the lines of what we are discussing today, notwithstanding the fact that it is conduct that inflicts substantial harm on the State of Texas and its residents. But the important part that we should have been able to argue here today is the exchange that occurred at oral argument between Justice Kavanaugh and Elizabeth Prelogar, Solicitor General of the United States, in her capacity as Solicitor General as the Biden administration's chief appellate advocate and chief advocate before the United States Supreme Court. Justice Kavanaugh asked her a number of questions at oral argument, and on page 50 of that argument transcript some of that discussion ensues. He asks the following: [I]f a new administration comes in and says we're not going to enforce the environmental laws, we're not going to enforce the labor laws, your position, I believe, is no state and no individual and no business would have standing to challenge a decision to, as a blanket matter, just not enforce those laws, is that correct? Here is what Solicitor General Prelogar says: That's correct under this Court's precedent, but the framers intended political checks in that circumstance. You know, if--if an administration did something that extreme and said we're just not going to enforce the law at all, then the President would be held to account by the voters, and Congress has tools at its disposal as well. So this argument continues, it continues on to the next page, in which Justice Kavanaugh says: What are the exact tools that Congress has to make sure that the laws are enforced . . . And Solicitor General Prelogar answers: Well, I think that Congress obviously has the power of the purse. And she goes on to explain how this is relevant. And then this goes on until we get to page 53. And then at page 53, Justice Kavanaugh jumps back in and says: I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps-- of some sort or another. Solicitor General Prelogar responds by saying: Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive. She just acknowledged exactly what has happened here, and she acknowledged that is exactly the moment at which the impeachment power becomes very relevant. Lest there be any doubt on that, this stuff was settled, not just in 1789 when we adopted the Constitution and when the Framers used the language that they did, but remember, the Framers were not operating in a vacuum. They were not writing on a blank slate. They were incorporating legal terminology that had been in use for centuries. In fact, Justice Story in his treatise on the Constitution discusses this very kind of thing and explains in section 798 of his famed treatise, written not so very long after the Constitution itself was written, that we got this stuff from England, that the British knew what impeachment meant, and they understood what would constitute a high crime or misdemeanor. In section 798, Justice Story acknowledges that there was precedent, there was an understanding at the time of the founding that recognized that you would have an impeachable offense if, among other things, a Lord Admiral would have neglected the safeguard of the sea. They didn't have a Homeland Security Secretary then, not in America, not in Britain. But this is really analogous. This is the exact same thing. Somebody who had a duty to do a certain thing under the law and defiantly refused to do so. Those are arguments we could have and would have and should have heard today had we had an actual trial, had we been permitted even to go into executive session, or even go into closed session. Why closed session? We didn't want to have to do it in closed session. But, you see, the standing rules of impeachment in this body preclude us from having this very kind of debate. So when Majority Leader Schumer made this argument, to the great shock and surprise of all of us, we wanted to warn the body and have this debate. He wouldn't let us do that. The Democrats voted us down. So that is article I in a nutshell. Article II of the Articles of Impeachment, what do those get to? Well, those are interesting, because those deal with false statements-- knowingly false statements repeatedly made by Secretary Alejandro Mayorkas to Congress--to Congress as it is performing its oversight responsibilities. He lied to Congress according to the allegations of the Articles of Impeachment in article II. To my great shock--look, he was dead wrong as to article I, but if he was dead wrong as to article I, he was deader than a doornail--whatever that means--ten times more dead as a doornail as to article II than he was to article I. Why is that? Well, because they allege in article II that Secretary Mayorkas knowingly made false statements. Knowingly making false statements is a felony offense. It is punishable as a crime, as a felony Federal offense under, among other things, 18 USC section 1001. It is routinely charged, prosecuted, and is the basis for lots of convictions for a felony offense. You can go to prison for a very long period of time for that. Now, for Chuck Schumer to argue--

Mr. LEE. Yes.