Rand Paul

Mr. PAUL

Mr. PAUL. I think the American people are with us. I think the American people don't like the idea of bulk collection. I think the American people are horrified. I think it will go down in history as one of the most important questions we have asked in a generation when the Senator from Oregon asked the Director of National Intelligence: Are you gathering in bulk the phone records of Americans? And when he didn't tell the truth and then when the President kept him in office and then how that led to this great debate we are having now--I think the American people are with us. I don't think those inside Washington are listening very well, so I think those inside Washington have not come to the conclusion yet. But I think the Senator from Oregon is right. There may be enough of us now to say: Hey, wait a minute, you are not going to steam roll through once again something that isn't even doing what you said it is going to do. No one said at the time of the PATRIOT Act that it meant we could collect all records of all Americans all the time. In fact, in the House, one of the cosponsors of the bill, James Sensenbrenner, knew all about the PATRIOT Act. He was a proponent of the PATRIOT Act, and he said never in his wildest dreams did he think that what he voted for would say we could gather all the records all the time. But I am interested in another question, and that would be whether the Senator from Oregon has a question that will help us to better understand, if we were to stop bulk collection tomorrow, if we were to eliminate what is called section 215 of the PATRIOT Act, if we were to do that, is there still concern and worry about what is called Executive Order 12333? I am not aware of whether the Senator can or can't talk about this or what is public. From what I have read in public and from one of the insightful articles from John Napier Tye, the section chief for Internet freedom in the State Department, he has written that his concern is that this Executive order may well allow a lot of bulk collection that is not justified and not given sanction under the PATRIOT Act. Does the Senator from Oregon have a question that might help the American public to understand that?

Mr. PAUL. I think the vast majority of the intelligence community, as are the vast majority of policemen, good people. They are trying to do what is best for the country. They are patriotic people, and they are really trying to do what is necessary within the confines of the law. The issue is that the intelligence community has such vast power, and a lot of it is secret power. So we have to have a great deal of trust in those who run the agency because we have entrusted them with such enormous power to look through information. Then, when they come to us and say, ``Well, you have to give up a little more liberty; you have to give up a little bit more in order to get security,'' we have to trust the information because they control all of the information they give us. And then we find--when we ask a high-ranking official in the committee whether they were doing bulk collection of data and the answer was not true--they said they weren't doing something that they obviously were doing--it makes us distrust the whole apparatus. I agree with the Senator from Oregon that the vast majority of law enforcement and the intelligence community are good people. They are patriotic. They want to stop terrorism, as we all do. But what we are arguing about is the process and the law and the Constitution and trying to do it within the confines of the Constitution. But when we have someone at the very top who doesn't tell the truth in an open hearing under oath, that is very troubling and makes it difficult.

Mr. PAUL. This is on op-ed that was written by the Senator from Oregon and appeared in the LA Times in December. The op-ed says that building a backdoor into every cell phone, tablet or laptop means deliberately creating weaknesses that hackers and foreign governments can exploit. I think expanding on that in the form of a question would help us to understand exactly what the Senator means by that.

Mr. PAUL. Mr. President, that is a great question, and I also think it is very difficult to prove these things one way or another sometimes. We are at a great disadvantage because a lot of times they hold all of the information. I think it was nothing short of miraculous that you and others were able to investigate this and show that in reality all of these folks who they allege could have been caught would have been caught through traditional surveillance and through traditional warrants. I think this is a pretty important point because they want us to live in fear and give up the Fourth Amendment, but it turns out even the practical argument is not an accurate one because it turns out that almost always, if not always, the terrorists seem to be caught through sort of the normal channels of human intelligence, suspicion, and finding out something about them that causes us to investigate them. I, like the Senator from Oregon, do want to catch terrorists and I also want to keep our freedom at the same time. I think it was a pretty important conclusion, not only by the review board but also by the Privacy and Civil Liberties Oversight Board as well, the review panel, two groups of folks from the administration. I am also interested in hearing the Senator from Oregon talk about an op-ed he wrote which appeared in the Los Angeles Times in December. Senator Wyden wrote that building a backdoor into every cell phone, tablet or laptop means directly creating weaknesses that hackers and foreign governments can exploit. I would be interested in entertaining a question concerning that.

Mr. PAUL. Yes.

Mr. PAUL. Mr. President, there comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now. And I will not let the PATRIOT Act--the most unpatriotic of acts--go unchallenged. At the very least, we should debate. We should debate whether we are going to relinquish our rights or whether we are going to have a full and able debate over whether we can live within the Constitution or whether we have to go around the Constitution. The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment. The Second Appeals Court has ruled it is illegal. The President began this program by Executive order. He should immediately end it through Executive order. For over a year now, he has said the program is illegal. Yet, he does nothing. He says: Well, Congress can get rid of the PATRIOT Act; Congress can get of the bulk collection. Yet, he has the power to do it at his fingertips. He began this illegal program. The court has informed him that the program is illegal. He has every power to stop it. Yet, the President does nothing. Justice Brandeis wrote that the right to be left alone is the most cherished of rights, most prized among civilized men. The Fourth Amendment incorporates this right to privacy. The Fourth Amendment incorporates this right to be left alone. When we think about the bulk collection of records, we might ask, well, maybe I am willing to give up my freedom for security. Maybe if I just give up a little freedom, I will be more safe. Most of the information that comes on whether you are safe comes from people who have secret information you are not allowed to look at. So you have to trust the people--you have to trust those in our intelligence community that they are being honest with you, that when they tell you how important these programs are and that you must give up your freedom, you must give up part of the Fourth Amendment--when they tell you this, you have to trust them. The problem is, we are having a great deal of difficulty trusting these people. When James Clapper, the head of the intelligence agency, the Director of National Intelligence, was asked point blank, are you collecting the phone records of Americans in bulk, he said no. It turns out that was dishonest. Yet, President Obama still has him in place. So when they say how important these programs are and how they are keeping us safe from terrorists, we are having to trust someone who lied to a congressional committee. It is a felony to lie to a congressional committee, and nothing has been done about this. About a year ago, we began having this debate because a whistleblower came forward and said: Here is a warrant for all of the phone records from Verizon. You say: Well, maybe they have evidence that people at Verizon were doing something wrong. There is no evidence. This is that they want everyone's phone records. I don't have a problem with going after terrorists and getting their records, but you should call a judge and you should say the name of the terrorist, and then you get their records as much as you want. If I am the judge and they ask me for the Tsarnaev boy's records--the Boston Bomber--the Russians had investigated him. He had gone back to Chechnya. Yet, nobody asked for a warrant to look at his stuff. We didn't even know he went back to Chechnya. And then we had the disaster at the Boston Marathon. I would make the argument that we spend so much time making the haystack bigger and bigger that we can't find the needle because the haystack is too darned big. We keep making it bigger and bigger, and we are taking resources away from the human analysts who should be looking and seeing when Tsarnaev travels outside of our country. We recently had another terrorist travel from Phoenix to Texas. We had arrested him previously. My guess is there was sufficient cause-- probable cause--for a real warrant to look at his activities, and we should. But I don't think we are made any safer by looking at every American's records. In fact, when this came up, the government said: Well, we have captured 52 terrorists because of this. But then when the President's own privacy commission looked at all 52 of them, there was a debate about whether one had been aided but not found by these records and would have been found by other records. We have to decide as a country whether we value our Bill of Rights, whether we value our privacy, or whether we are willing to give that up to feel safer, because I am not even sure you really can argue that we are safer, but people will argue that they feel safer. But think about it. Is the standard to be that if you have nothing to hide, you have nothing to fear but that everything should be exposed to the government, that all of your records can be collected? Some will say these are just boring old business records. Why would you care if they could find out who you called and how long you spoke on the phone? Well, two Stanford students did a study on this. They got an app and they put the app on the phone--voluntarily--of 500 people. These people then made phone calls. All they looked at was how long they spoke--metadata--and whom they spoke to, the phone number to which they were connected. What they found was that without any other information, 85 percent of the time they could tell what their religion was; more than 70 percent of the time they could tell who their doctor was; they could tell what medications they took; they could tell what diseases they had. The government shouldn't have the ability to get that information unless they have suspicion, unless they have probable cause that you committed a crime. When they looked at this, the appeals court was flabbergasted that the government would make the argument that this was somehow relevant to an investigation--because that is what the standard is. Under the Constitution, the standard is probable cause, which means there is some evidence or suspicion that you have done something illegal. But the standard now is relevance, which means, is it relevant to an investigation? But the court said that even that looser standard of relevance completely destroys any meaning of any words if we are going to say every American's phone record in the whole country is somehow relevant to an investigation. But it gets worse. They don't even have to prove it. The government says to the court that they think it is relevant, but there is no challenge and there is no debate. It is just taken at face value--or at least it was until this court ruling was appealed. So we now have the second appeals court that said this bulk collection of phone records is illegal. There are many different programs going on. This is the only one we know about where our government is collecting our records, and the only reason we know about it is not because the government was honest with you--the government was dishonest. The Director of National Intelligence tried to basically lie to the American people and say it didn't exist. So we know about this one, but what other programs are out there? There is something called Executive Order 12333. There are some who believe this is just the tip of the iceberg, the bulk collection; that there is an enormous amount of data being collected on people through this other program. One question is, if there is no Fourth Amendment protection to your records, are they collecting your credit card bills? I don't know the truth of that. I would sure like to know. I don't know whether to trust their answer if I asked them, if they will be honest with us and say are they collecting our credit card records. People might say: Well, your credit card records are just boring old business records. Why would you care? But think about it. If the government has your Visa bill, they can tell whether you drink, whether you smoke, what restaurants you go to, what your reading material is, what magazines or books you read, what doctors you see, what medicines you buy? Do you buy medicine? Do you gamble? All of these things can be determined. Not only can they determine stuff directly from your phone bill and directly from your Visa bill, they now have the ability to merge all of this information. Apparently, they have the ability to collect your contact lists, and sometimes they are collecting this in a way that is somewhat nefarious. We are supposed to be spying on foreigners--foreigners who might attack us. I am all for that. But what happens is there is a lot of data that goes in and out of the country. In fact, sometimes an e-mail from New Jersey to Colorado might go through a server in Brazil. Once it gets to a server in Brazil, they can not only look at your metadata--how long and whom you talked to--the content is now available. It all gets scooped up. It is all being analyzed. They are doing the social network of who your friends are. Some have said this could potentially have a chilling effect on the First Amendment. There was a time in our country not too long ago, in the lifetime of most of us, when if you called the NAACP, you might not want your neighbors to know or if you were a member of the NAACP, you might not want your neighbors to know or if you were calling the ACLU or a member of the ACLU, you might not want your neighbors to know. It can have a chilling effects on your expression of your speech, whom you associate with, and whether you are fearful to have association with people because you are fearful that knowledge might be known by the government. People say: Well, certainly that would never happen. During the civil rights era, many of the civil rights leaders were spied upon illegally by the government through illegal wiretaps. Many Vietnam war protesters were also spied upon illegally by the government. The reason we have the Fourth Amendment is to have checks and balances. Everything that is great about our country is checks and balances. Let's say we have a rapist or a murderer in Washington, DC, today. Let's say it is 3:00 in the morning and the police come to the house. They think the rapist or murderer is inside. They do not just break the door down. If there is no commotion, no noise, no imminent danger, they stand outside and get on their cell phone and call a judge. Almost always the judge grants a warrant. Then the police go in. But why do you want that to happen? Sometimes people come up to me and they say ``I am a policeman'' or ``I work for the FBI.'' Many of my friends are policemen and work for the FBI, and they say ``Don't you trust us?'' It is not about the individual. Laws are not about whether we trust one person or your brother is a policeman and your brother would never do anything wrong. It is not about your brother. It is not about your friend. It is about the potential for there to be a rotten apple, someone who would take that power and abuse that power. We have laws not for most of us. It is for the exception. It is for something out of the ordinary. But it is also to prevent systemic bias from entering into the situation. For example, there was a time in the South when it might have been that a White person from the government might have decided they were going into the home of a Black person just because of racial bias. You get rid of bias by having checks and balances, by always saying you have to ask somebody else for permission. When we were leading up to the war for our independence in about 1761, I believe, James Otis was arguing before the courts. He was arguing against something called the writs of assistance. A writ of assistance was a type of warrant, but it was a generalized warrant. No one's name was on it; It just said: You are welcome to search anybody's house to make sure they are paying the stamp tax. Do you wonder why the Colonists hated the stamp tax? It was not just the tax; it was the fact that the government could break the door down, come in, and rifle through their papers. Writs of assistance were something called a general warrant. This same battle had gone on in common law in England and developed as one of our precious rights that we actually kept from the English tradition. John Adams wrote about James Otis fighting against these general warrants, and he said it was the spark that led to the American Revolution. That is how important this is. The Fourth Amendment was a big deal to our Founders. The right to privacy, as Justice Brandeis said, the most cherished of rights, is a big deal. We should not be so fearful that we are willing to relinquish our rights without a spirited debate. The debate over the PATRIOT Act, which enshrines all of this and got this started, goes on about every 3 years or so. It has a sunset provision. It is set to expire in the next few days. But we are mired in a debate over trade. There is another debate over the highway bill. And the word is that we will not get any time to actually debate whether we are going to abridge the Fourth Amendment, whether we are going to accept something that one of the highest courts in our land has said is illegal. Are we going to accept that without any debate? I, for one, say there needs to be a thorough debate, a thorough and complete debate about whether we should allow our government to collect all of our phone records all of the time. In England, about the time of James Otis, there was another man by the name of John Wilkes. I learned about this story in reading my colleague Senator Lee's book recently. John Wilkes was a rabble-rouser. He was a dissenter. Some called him a libertine. I do not know about his morals, but I know he was not afraid of the King. The King was becoming more and more powerful at that time. That is one of the complaints we had as well. So John Wilkes began his own newspaper. It was called the North Briton, and he labeled it with numbers. The one at the time became the North Briton No. 45. It became so famous throughout England that it was also part of our idiom, part of our language in the United States. Everybody knew what 45 was if you mentioned it. But he wrote something about the King. He basically wrote what would be an op-ed in our day. He made the mistake of sort of saying that the King's behavior or the Prime Minister's behavior was equivalent to prostitution. That did not make the King very happy, so the King wrote out a warrant for the arrest of anybody who had to do with the writing of this North Briton No. 45. But the warrant did not have anybody's name on it. It was a generalized warrant. He said: Arrest anybody. So they broke down John Wilkes' door. They rifled through and ruined the contents of his house, arrested him, put him in irons, and took him to the Tower of London. They did the same to 49 other people. But John Wilkes was not about to take this lying down, so John Wilkes actually then decided that he would sue the King. I tried doing the same thing. I tried suing the President, and it has not gone so well. But the thing is that everybody ought to think they have the ability and the equality to sue even their leaders. So he sued the King, and something remarkable happened. This was in the early the 1760s. When he sued the King, he actually won. I think the award was like 1,000 pounds, which would be a significant sum of money for us in today's terms. It was a big victory. It was part of the discussion going on simultaneously over here with James Otis. It was a big deal. So often my party does such a great job talking about the Second Amendment and the right to bear arms. I am all for that. But the thing is, I do not think you can adequately protect the Second Amendment unless you protect the Fourth Amendment, the right to privacy. Your house is your castle. The right to not have your castle invaded is so important. I will give an example. A lot of people think we will be safer if we collect gun records. A few years ago, they collected all the gun records and they had them in Westchester County, near New York City. A newspaper decided they would publish them. They really did not think this through. But you can see the danger of what happens when the government has records and then releases them to everybody. Imagine a woman who has been abused or beaten by her husband and has left him. She lives in fear of him finding her. Now the registration comes out and says where she lives and that she has a gun or, worse yet, where she lives and that she does not have a gun. Think about prosecutors and our judges. I know many of them who put bad people away, and many of them have concealed carry. Many of them travel to work. The security meets them in the parking lot. They go to work, but they worry. We have had sherifs and we have had prosecutors killed in Kentucky because the criminals were angry that they were locked up. We do not want all of our records by the government to be put out there in public for everybody to know where we live and whether we have a gun. You can see the issue of privacy is not a small issue. It is a big issue. It was incredibly important to our Founding Fathers. Some have said it is too late to even get this back. There have been articles written in the last few weeks that say that whether or not the PATRIOT Act expires, the government will just keep on doing what they are doing. In fact, there is a provision in the PATRIOT Act that says any investigation already begun before the deadline can go on in perpetuity. The other thing is that there are people now writing--John Napier Tye, who was the Internet watchdog for this program, wrote that he believes that Executive Order 12333 is really allowing all this bulk collection under what the President says are article II authorities. Article II gives the President and the executive branch different powers, but these are not unlimited powers. Some think they are. Some say the President has the absolute power when it comes to war. Article II actually comes after article I. In article I, section 8, the President was told he does not get to initiate war. The most basic of powers with regard to war were not actually given to the President; they were given to Congress. What is sad about this, what is going on now is that Congress has not shown sufficient interest in what the executive branch does on a host of things, whether it be regulation, whether it be the enormous bureaucracy, but really so much power has shifted and gone from Congress and wound up in the executive. It is the same way with intelligence. We have intelligence committees, but the question is, Are they asking sufficient questions? There are some. Senator Wyden has been a leader in this. He and I have worked together. He really has been the leader because he has been on the Intelligence Committee. He has more information, really, than the rest of us do, but he at times has been hamstrung because once you know information, if it is told to you in a classified setting, you are not allowed to talk about it. Sometimes it actually makes sense, if you want to speak out, not to actually learn through the official channels but to read on the Internet because if you learn about it through official channels, you cannot say anything about it even if the government is lying about it. We are talking about an enormous amount of information. We are talking about all of your phone records all of the time. Recently, there were some complaints by people in the newspaper. They said: Well, the government is really only getting one-third of your records; they are not getting enough of your records. Some want them to get more of your records. The objective evidence shows, though, that we really have never gotten anyone independently; we have not found any terrorist independently of this. But still some people are so fearful, they are like: How can we get terrorists? We will be overrun with terrorists, and ISIS will be in every drugstore and in every house in America if we do not get rid of the Constitution, if we do not let the Fourth Amendment lapse, and if we do not just let everybody pass out warrants. That is what we do under the PATRIOT Act. The PATRIOT Act allows the police to write their own warrants. This is one of the fundamental separations we did with the Fourth Amendment. This was probably the most important thing we did, to separate police power from the judiciary, to have a check and a balance so you would never get systemic bias, so you would never get political or religious or racial bias in your judicial system. We separated these powers. We now let the police write their own warrants. It is a special form of police. It is the FBI, but they are domestic police. The FBI is allowed to write their own warrants. These are called national security letters. They do not have to be signed by a judge. There is no probable cause. If they come into your house, there is no ability for you to complain. In fact, sometimes they are now coming into our houses without us knowing about it. This is called a sneak-and-peek warrant. Like everything else, the government says we will be overrun with terrorists if we do not let the government quietly sneak into our house when we are gone and put in listening devices, search through our papers and read all of our stuff while we are gone. They do not have to have probable cause necessarily for these. It is a lower standard. But we are letting the FBI write this without a judge reviewing it. I have a friend who is an FBI agent. I play golf with him. He is like: Don't you trust me? I do trust him. I do not trust everybody. Madison said that if government was comprised of angels, we would not need restrictions, we would not need laws. Patrick Henry said that the Constitution is about restraining the power of government. It is not about the vast majority of good people who work in government. It is about preventing the bad apple. It is about preventing the one bad person who might get into government and decide to abuse the rights of individuals. Some say: Well, the NSA has never abused anyone's rights. That may or may not be true. They are giving us the information. We do not get to independently look at the information. They are telling us. It is the same group who says they were not doing any bulk collection of data at all. But even if we presume they are telling us the truth, it is not really the end of the story because the story should be that we do not want to allow the abuse of power to happen. As the debate unfolded the first time for the PATRIOT Act, something occurred that happens frequently around here. There is not enough time. Hurry up, hurry up, there is not enough time. It is kind of like the debate right now. Unless we insert ourselves at this moment, I am not sure we will have any debate on the PATRIOT Act. It has been set to expire for 3 years. We have known it was coming, and the question is, Do we not have enough time because we just don't care enough? Are we going to relinquish our rights or constrict our rights to the Bill of Rights, even though we know it is coming up and that we have to do something else that occupies all of our time? Senator Wyden and I have a series of amendments. Our amendments would try to reform some of this. Our amendments would say that NSLs, national security letters, cannot just be signed by the police, that they would have to go to a judge. People argue: Well, how would we catch terrorists? The same way we catch other people who are dangerous, such as murderers and rapists, anybody in our society. In fact, when you look at the criminal process for criminal warrants, warrants are almost never turned down. But just that simple check and balance of having the police call a judge is one of the fundamental aspects of our jurisprudence, and we gave it up so quickly on the heels of 9/11 because of the fear. The thing is, when the PATRIOT Act came forward, most people didn't even read it. There was a committee bill and this and that and there was a last-minute substitution. It was given hours, and it was simply passed in a spate of fear. As we look at what happened at that time, I think we now have the ability to look backward and say: Is there another way? When we start with the doctrine that a man's house or a woman's house is their castle, it was a very old notion, maybe even dating back to the times of Magna Carta. Our castle and our papers are a little bit different now, and the Supreme Court has not quite caught up to where we are technologically. They are getting there, but this really needs to be debated and discussed at the Supreme Court level because the thing is we don't keep our papers in our house anymore. In fact, we have gone to such a paperless society that 90 percent of your paper--or if you are under 30 years old, 100 percent of your paper--is held somewhere else. The question we have to ask is: Do you retain a privacy interest in your records? When the phone company holds your records, do they have an obligation to keep them private? Do you retain a privacy interest? If the government wants the records from the phone company, should they be allowed to write the name Verizon and get all of the records from Verizon? I, frankly, think that if John Smith has his phone service with Verizon and he is a terrorist, the warrant should say John Smith and go to Verizon, but it is an individualized warrant. I don't think we should have generalized warrants. There are some who want to replace the bulk collection of records with a different system where the government doesn't hold the records, but the phone companies hold the records. I am also concerned about this for one big reason: The recent court case has now said the PATRIOT Act does not justify the collection of records, that it is actually illegal. I am concerned that since the court is now saying section 215 doesn't allow a bulk collection, that in trying to reform this, what is called the USA FREEDOM Act, we will actually be granting new power to section 215 that the court says is not there. The court is saying that it stands logic on its head to say relevance means nothing, that everybody's records in the whole country could be relevant. We have even changed, over time, the investigations and whether there is a full-blown investigation at the beginning of an investigation. Who gets to decide or define what an investigation is? The bottom line is that we look at this, and as we move forward, we have to decide whether our fear is going to get the better of us. Once upon a time, we had a standard in our country that was innocent until proven guilty. We have given up on so much. Now people are talking about a standard that is: If you have nothing to hide, you have nothing to fear. Think about it. Is that the standard we are willing to live under? Think about whether you believe you still have a privacy interest in the records that are held by the credit card companies, your bank or the phone company. In the PATRIOT Act, they did something to make it easier to collect records and to override your privacy agreement. If you read the nitty- gritty of any of these agreements that you have when you use a search engine or when you are on the Internet, you do voluntarily say that your information will be shared in an anonymous way, but they promise they will not give your name to somebody. The phone company has the same sort of privacy agreement, but what has happened through the PATRIOT Act is that we have given them liability protection. At first blush, you might say we have too many damn lawsuits. I am kind of that way. I am a physician. We have way too many lawsuits. I am for cutting back on lawsuits. But at the same time, if you give the phone, Internet or credit card company immunity to ignore your privacy agreement, they will. Instead of the government storing billions and billions of records in Utah, the new system is still going to store billions and billions of records in the phone company, but still the question is: Will we access them in a general way? It says we are going to look at a specific person, but if you look at the way ``person'' is defined, a person could be a corporation. I don't think you should have a warrant that says Verizon and gets all the records for all of their customers. The other thing that has been going on that they have not been completely honest with, and we may have some data on, is that the government is going inside of the software. They are asking companies such as Facebook or demanding that companies such as Facebook give them access through their source code so the government can get in. Now, to Facebook's credit, they are fighting them, and I think more companies are now standing up and trying to fight against this. But in a nefarious way, the government is going into the code of Facebook and then inserting malware into other people's Facebook and spreading it throughout the Internet. The government is also looking at communications between two nodes. Let's say you communicate with Google and it is encrypted, but then when Google has a data center that talks to another data center which is nonencrypted, the government just hooks up to a cable and siphons off records. There is a danger that you will have no privacy left at the end of this. The Fourth Amendment is very specific. The Fourth Amendment says you have to individualize a warrant and put a name on the warrant. You have to say specifically what records you want, you have to say where they are located, and then you have to ask a judge for permission. The sneak-and-peek warrant I was talking about before is section 213. It is now permanent law. We don't even get a chance to talk about it. We could repeal it, and I will have an amendment to repeal it. This is where the government goes in secretly and says: Well, we need this lower standard because terrorists will get us if we don't. Well, we have now had it on the books for a decade and do you know who they are getting? Drug people--people who are buying, selling or using drugs. That is a domestic problem, which also leads me to something else about the PATRIOT Act that really bothers me. When we first started talking about the standards of the PATRIOT Act and going from probable cause, which is what the Constitution has, to articulable suspicion, down to relevance, we said: Well, we are going to lower standards because we are going after foreigners. They are not Americans and they are not here. We are going to lower the standard, and really there could be some debate in favor of that. When we first did it, we said we could not use that information for a domestic crime. I will give an example. I asked one of the intelligence folks at one time to answer a question and was dissatisfied with the response. Let's say the government comes in through a sneak-and-peek warrant. They don't tell you that they are in your house. Guess what. They find out you are not a terrorist, but you have paint in your house which you bought through your office business expense, and you are painting your house, which is a tax violation. It is a domestic crime, but they got into your house through false pretenses. They said you were a terrorist, but they were wrong. However, they found out you were not being perfectly honest with your taxes. They have gotten in through a lower standard. Ultimately, if we let them collect all of your records and we let a domestic crime be prosecuted by this, we could have the government sifting through your credit card records because they say the Fourth Amendment doesn't protect records, including your phone records--not the content, just all of this data. After they put it together and mesh it, they decide, by looking at your digital footprint, that maybe you are somebody who runs traffic lights. Now we are taking something that was intended to capture foreigners and we will capture people domestically and prosecute them for domestic crimes, the specific thing they promised us they would never do. So things morph and get bigger and bigger. We could have a valid debate about whether we have gone too far, but we should at least have a debate. Shouldn't we get together and say: Let's have a debate. Let's devote all week to this. For a while, I have asked to have a full day and have five or six amendments that Senator Wyden and I could put forward and have a full- fledged debate over whether the bulk collection of our records is something we should continue to do. I think if you look at this and say: Where are the American people on this, well, there has been poll after poll. Well over half the people-- maybe well over 60 percent of the people--think the government has gone too far. But if you want an example of why the Senate or Congress doesn't represent the people very well or why we are maybe a decade behind, I would bet that 20 percent of the people here would vote to just stop this--to truly just stop it--at the most; whereas, 60 to 70 percent of the public would stop these things. You are not well represented. What has happened is that I think the Congress is maybe a decade behind the people. I think this is an argument for why we should limit terms. I think it is an argument for why we should have more turnover in office because we get up here and stay too long and get separated from the people. The people don't want the bulk collection of their records, and if we were listening, we would hear that. The vote in the House, while I don't think the bill is perfect, and I think it may well continue bulk collection, was over 300 votes to end this program and to say we are no longer going to have bulk collection. Yet it looks like the majority in this body says we still need bulk collection. In fact, the biggest complaint from the majority of this body is that we are not collecting enough records and that we need to collect more records. Can we have security and liberty at the same time? I had breakfast with a high-ranking official from our intelligence community maybe 6 months ago, and I asked him: How much information do you get from metadata and how much do you end up getting from a warrant? He said, without question, you get more from a warrant. People talk about whether we can go one hop or two hops. That means if you are suspected of terrorism and you called 100 people--if we look at your records, that is one hop. If we look at the next 100 records, that is a second hop. As you go in, this pyramid gets bigger and bigger until you are talking about tens of thousands of people. As you get further and further away from the suspect, I see no reason you couldn't keep getting warrants. If they say that warrants are slow and laborious and there is not a judge, put more judges on the court. If they say they need them at 3 in the morning, put the judges on 24- hour alert and you can call them at 3 in the morning. We call judges for a warrant in the middle of the night all across America. I see no reason why you can't have security and the Constitution at the same time. The President instituted the Privacy and Civil Rights Board. They went through a lot of this, and some of the things they came up with, I think, were truly astounding. The amount of information, I think, is mindboggling--of what is being sucked up in this. There is something called section 702 of FISA, and this has allowed them to collect information on Americans who might have been communicating with a foreigner. You say: Well, that American is probably suspicious. Well, it goes out in ripples and it becomes this enormous amount of--cache of information. When they looked at some of this recently--the Washington Post looked at this--they found that 9 of 10 intercepted conversations were not the intended target. So I think there was one estimate that in the last year we had 89,000 targets. If you multiply that and say it is only one-tenth of what we actually take, you are now looking at 900,000 records of people who had nothing to do with terrorism. They didn't even really talk to the person. They incidentally talked to a person who talked to the person. It could be the terrorist called Papa John's and you called Papa John's, so now you are in the same phone tree network. That can ripple out in waves. That information should not be collected, it should not be put in a database, and it should not be stored. Ultimately, we are collecting so much information that it is all of your information. One thing that should concern us about simply going from a system where the government collects all of these records and stores them in Utah to one where the phone company does it--actually some people in the NSA are acquiescing and saying it is not so bad. That concerns me that the NSA is saying ``not so bad.'' It concerns me that we are still going to have bulk collection. The debate we really need to have is whether, if someone else is holding your records, if you still have any kind of privacy interest in your records. I personally think your phone records are still partially yours, in a way, or that you have a privacy interest in them. This is going to become very important because your records ultimately--there probably will not even be any records in your house, they will be on your phone, and then your phone records are connected to the company. Who owns them? Do you have a right to privacy in those records? I think you can have security and freedom at the same time, but I think if we are not careful, this is going to get away from us. When they found out that 9 out of 10 intercepts were actually not the intended target, just ancillary information they picked up, they also found that 50 percent contained email addresses that were U.S. citizens. So let's say you collect a million pieces of information and you are just gathering this up and you are intending to go after foreign targets who might be terrorists, but over half of this information, much of it incidentally gained, is actually U.S. citizens. So this is sort of an end run--they call it backdoor searches--but it is sort of an end run that has gone around the Constitution, gone around the Fourth Amendment, to collect information that we have actually said should be illegal to be collected that way, but we are doing it because we have done an end run around. Also realize you can send an email from Virginia to South Carolina and it might go over a server in Brazil. If your email goes over a foreign server, all of a sudden, boom, everything is done. The Constitution is out the door. They can collect that, even the content. It is never revealed to you; nothing is ever presented to you. It is all done within the executive branch, with no advocate on your side. There are several programs that came out through this that are being collected. It is not just the bulk collection. There is a program called PRISM that has been out there for a while and there is another one called Upstream. In PRISM, it is a surveillance program that collects Internet communications of foreign nationals from at least nine major Internet companies. I think this wouldn't have happened if the Internet companies were not given liability protection. I think what would have happened is they would have said we are violating our obligation to our customers and we are going to fight against this. But the PATRIOT Act even made it worse. The PATRIOT Act made it a crime to reveal that you had been served with a warrant. So we have gone way beyond any typical constitutional mechanisms. In the Upstream Program, a similar thing happened, but this is when the data is collected as it moves across U.S. junctions. The problem is not so much going after foreign communications but going after incidental and collecting incidental communications that involve American citizens. John Napier Tye was a section chief for Internet freedom in the State Department's Bureau of Democracy. He was going to give a speech--and I think this is very telling. This is reported in the Washington Post. He had written out his speech and he sent it for review. In his speech, he said: If U.S. citizens disagree with congressional and executive determinations about the proper scope of intelligence activities, they have the opportunity to change policy through democratic process. And we think, Who could object to that? What would his censors say? How could he possibly say we don't have the right through democratic process to change policies? They had him strike ``through intelligence processes'' because I guess they apparently think we don't have the democratic ability to change these things. The sad truth is it may be true because a lot of this is being done by Executive order. Executive Order No. 12333 has no congressional oversight. In fact, the question was asked recently of one of the Senate leaders, Will you investigate this? Now, there may well be a secret investigation going on, but there was some indication it was really outside of our purview. I don't think anything the executive branch does should be outside of our purview. The whole idea of having coequal branches was to have checks and balances. One of the biggest problems I find in Washington is that sometimes the opposition party--if we have a Democratic President and a Republican Congress, you will get a little bit of adversity and a little bit of pitting ambition against ambition and check and balance. But the party that is the same party as the President just doesn't tend to push back, probably for partisan reasons. Now, it is not just the other party; it happens when Republicans are in power also. What happens is the political party that is the same power as the President tends to sort of be open to letting things move on, just letting the President accumulate more power. But I think this should be telling that when he said we could change things through democratic action, President Obama's White House Counsel told him that, no, that wasn't true. He was instructed to amend the line and make a general reference to our laws and policies but to leave out intelligence policies as if we don't really get a say in what they do as far as what information they collect on us. John Napier Tye goes on to warn us. He says: Unlike section 215, Executive Order No. 12333 authorizes collection of the content of communications, not just metadata, even for U.S. citizens. So quite often we are told--we were told for years--don't worry, they are not collecting your data; they are just collecting the data of foreigners. It turns out that wasn't true. Now, the big thing they tell us is, Well, we are not collecting the content, we are just collecting the numbers. But when we read John Napier Tye, he says the Executive order authorizes collection of the content of the communications also, not just metadata, and also for U.S. persons. So the question is, If we get rid of bulk collection, will the Executive continue to do it anyway? The other question is, Why doesn't the Executive stop this? It was started by Executive action and can be ended by Executive action at any time. Where is the Executive? How come the press gives him a free pass just to say Congress needs to fix this? Sure, I messed it up, I broke it; I am doing something that the second appeals court said is illegal, and I am going to keep on doing it until Congress does something. Why don't we see any questions from the press? Why don't we see anybody from the media saying, Mr. President, it is illegal. You started it. You were performing a program that is collecting all of the phone records from all Americans. It has been declared illegal from the second highest court in the land. Why don't you stop? I have not ever heard the question asked of him. With the Executive order, apparently because this, they say, is article II, and then article II to them means they can do whatever they want without any oversight by Congress, the conclusion by John Napier Tye is that there is nothing to prevent the NSA from collecting and storing all communications. This concerns me. The President instituted or brought together a group called the Review Group on Intelligence and Communication Technologies. In it, they came forward with some recommendations. Recommendation No. 12 was that all of this data--all of this incidental data that is becoming part of these databases that is collected under these authorities--the Executive order--should be immediately purged unless there is a foreign intelligence component to it. The Review Group further recommended that a U.S. person's incidentally collected data should never be used in a criminal proceeding against that person. So now we are back to what I was talking about earlier. If you are going to go away from the Constitution, if you are going to say to catch bad guys we can't really have the Constitution, we are going to have to have a bar that is a lot easier to cross that allows us to do kind of what we want, wouldn't you want to exclude American citizens from being convicted or put in jail for a crime under a lower standard? It is kind of like this: The question is, If the government can come in without a valid search warrant, without announcing they are in your house, collect all of your data, would you want them to have hours and hours in your house without any probable cause and then start arresting you for this? There are rumors we are doing this. There are rumors that intelligence warrants, which are nonconstitutional, which are a lower standard, are being used to get regular criminals. What they do is collect information through data, metadata analysis, all of this, they get enough to be convinced that you are a drug dealer, and then they arrest you by getting a traditional warrant, but they are using information they got illegally to get to you. Section 213, this whole sneak-and-peak, where they go in without announcing that they have been in your house, 99.5 percent of the people arrested are actually people who committed a domestic crime. They are not terrorists. So we are told you have to have a PATRIOT Act to get terrorists. Yet what we really find is that they are using it in a way that is not honest. They are using a lower standard--a standard less than the Constitution--and they are using that standard then to arrest people for basic domestic crime. The President's Review Commission in recommendation No. 12 recommended that this incidentally collected data not be used criminally against anybody. They gave their recommendations to the White House. The White House stated that the adoption of these recommendations they requested would require significant changes and indicated it had no plans to make any changes. So the President's own review commission says there is great danger in using a lower, less- than-constitutional standard to collect great amounts of information that can be searched. There is great danger to privacy. There is also great danger to using information collected outside of the Constitution. There is great danger in then using that for domestic prosecution, and the President said he has no intention of any changes. When I think of this President, it is probably what disappoints me most. There were fleeting times when this President was in the U.S. Senate that he stood up for the Constitution. In fact, there is a quote from the President when he was running for office--there are many quotes--but there was one quote saying that the warrants that are issued by police--national security letters--should be signed by a judge. The very amendment that I will try to get a vote on he seemed to have supported, but now his administration is issuing hundreds of thousands--it starts out with a few, then 47, then a couple hundred, and now it is in the thousands. Any time you give power to government, they love it and they will accumulate more. Any time you give power to government and expect them to live within the confines of the power, they will not live within the confines of power unless you watch them like a hawk. You have to watch them. You have to have oversight. We are at a point now where we have enormous bulk collection, enormous collection of American citizens' data; one program we know almost nothing about. Yet it goes on with no debate. The Executive order from 1981 has been transformed into a monster with tentacles that reach into every home in our country. The collection of records that is going on is beyond your imagination, and we need to know about it. There needs to be a public debate. It has become even more pressing that we have this public debate because the problem is that we have the President and we have the Congress and we have the intelligence community not being honest with us. So the fact that the Director of National Intelligence would come to Congress and lie and say they are not collecting this information, and then when they do admit to it say: Oh, by the way, it is working really well. We are capturing all kinds of terrorists--but they hold all the information, and we rely on them to be honest and to present truthful information to us. This is a big problem. Currently, the courts haven't brought their rulings up to date. The debate has been going on for a long time. In 1928 there was the Olmstead case. The Olmstead case went against those of us who believe in privacy. I believe that case still lingers on, even though it has been reversed. In the Olmstead case, Ray Olmstead was a bootlegger, and the government decided to eavesdrop on his conversations, but they didn't have a warrant. They could have gotten a warrant. Who knows why they didn't get the warrant, but they didn't get a warrant. But the Court ended up ruling that phone conversations were not protected by the Fourth Amendment. This was a sad day in our history when this happened in 1928. The dissent in that case was Justice Brandeis. As so often occurs in our history, sometimes the dissent becomes the majority opinion and becomes profound because it was there at the time. Harlan's opinion, the dissent in Plessy v. Ferguson, is what everybody refers to. Nobody refers to the majority in saying that separate is equal. They were wrong--the same as in the Olmstead case. People remember Justice Brandeis. It is probably one of the most famous quotes in jurisprudence: ``The right to be let alone is the most cherished of rights.'' It is ``the [right] most valued among civilized men.'' We have this debate still sometimes, though, because some conservatives say: There is no right to privacy. I don't see it in the Constitution. And conservatives who argue that there is no right to privacy aren't remembering the 9th and 10th Amendments very well, particularly the 9th Amendment. The Ninth Amendment says that all the rights aren't listed, but those that aren't listed are not to be disparaged. Even our Founding Fathers worried about this. Our Founding Fathers came forward and they at first thought we would just do the Constitution without the Bill of Rights. Some of them worried. They said: If we do the Bill of Rights, people will think that is all we have. If we list ten different amendments, they will think that is all of our rights. So they finally convinced everybody to go along with it by saying: We will put in the 9th and 10th amendment, with the 10th Amendment limiting the powers, saying only the powers enumerated are given to the Federal Government and everything else is left to the States and the people, respectively. But the Ninth Amendment, which is in many ways sort of the stepchild of our amendments, hasn't been adequately, I think, adhered to or recognized. It says that those rights not listed are not to be disparaged. Sometimes we have this discussion because some people say it has to be enumerated. I agree completely if we are talking that the powers given to government should be enumerated. They are few--few and limited, the powers given to the government. But it is the opposite with your rights. Your rights are many and infinite. Your rights are unenumerated, and you do have a right to privacy. So while the word ``privacy'' is not in the Constitution, in the Fourth Amendment, though, they do talk a lot about your privacy. It is about your home, that your home is your castle. The exact words of the Fourth Amendment are: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized. The reason why we should worry about whether a warrant is individualized is we have had some tragic times in our history. During World War II we didn't individualize the arrests of Japanese Americans. We didn't say: That is so-and-so who lives in California, and we think they are communicating with Japan and telling our secrets. We indiscriminately rounded up all of the Japanese and incarcerated them. There have been times in our history when we haven't acted in an individualized manner. It happened throughout the South in the old Jim Crow South. We told people that we were going to relegate them to a certain status based on a general category. So when we talk about individualizing warrants, we are talking about trying to prevent bias from occurring. Now, bias can occur for a lot of different reasons. I tell people that you can be a minority because of the color of your skin or the shade of your ideology. You can be a minority because of your religion. You can be a minority because you are home-schooled. But the thing is, if you are a minority, if you are a dissenter, if you dissent from the majority, you need to be very, very aware of your constitutional rights. Be very, very aware of the Bill of Rights. The Bill of Rights isn't so much for the prom queen. The Bill of Rights isn't so much for the high school quarterback. Many people in life always seem to be treated fairly. The Bill of Rights is for those who are less fortunate, for those who might be a minority of thought, deed or race. We have to be concerned about the individualization of our policies or we run the risk and the danger of people being treated in categories. Right now we are treating every American in one category. There is a general veil of suspicion that is placed on every American now. Every American is somehow said to be under suspicion, because we are collecting the records of every American. We talk about metadata and whether or how much it means or what the government thinks it can determine from metadata. There are some people who say: Don't worry. It is just your phone logs. It is no big deal. It is just boring old business records. We should be a little bit concerned by the words of one former intelligence officer who said, that ``we kill people based on metadata.'' He wasn't referring to Americans. He was talking about terrorists. But we should be concerned that they are so confident of metadata that they would kill someone. Instead of our believing that metadata is no big deal and it just should be public information and anybody can have it, realize that your government is so certain of metadata that they would kill an individual over it. That seems to me to make the point that metadata is incredibly important, if we would make a decision to kill someone based on their metadata. The Electronic Frontier Foundation has done a lot of work for privacy and deserves a lot of credit. Mark Jaycox writes in an issue from last year that ``it is likely that the NSA conducts much more of its spying power under the President's claimed `inherent' powers and only governed by a document originally approved by Executive order.'' So while we are superficially having a debate over the bulk collection of records that some claim are authorized under the PATRIOT Act, section 215, there is a whole other section that some privacy advocates are worried about that is even bigger. I had a meeting recently with one of the founders of one of the huge social communication companies, and he told me that he thinks we are missing some of the debate here, because he says everybody is talking about bulk collection of your phone records. He is convinced that there is ever so much more being collected through backdoor channels. These backdoor channels can occur in two ways. They can occur one way by going and looking at foreigners' information and then coming through the backdoor back into our country and looking at Americans' information. That American's information has tentacles and spreads and it becomes this enormous grouping of incidental information. In fact, some have said 9 out of 10 pieces of data pulled in aren't about terrorists; they are just incidental stuff. What the President's review commission says is we should delete that once we find it is not relevant to an investigation. The amazing thing to me is that even people who support the PATRIOT Act--and I don't; I think the PATRIOT Act lowers the constitutional standards and risks all freedom and our liberty. But even for those who think the PATRIOT Act is fine, they said that the PATRIOT Act never was intended to do this. So if you want to ask yourself is the government overstepping, even the authors of the PATRIOT Act are now telling us that the overstepping is to such a degree that they think the PATRIOT Act doesn't justify it. In fact, that is really what the court ruled recently. I had hoped the court would rule that the bulk collection--the grabbing up of all your records--was unconstitutional, but they actually simply ruled that the PATRIOT Act does not sanction it. The PATRIOT Act does not give authority to the government to do this. It is a pretty amazing sort of set of circumstances--that the government has taken something that was intended in one way, completely transformed it, and then when they are rebuked by the court, they are not chastened at all. I wonder why no one has had the guts or the wherewithal to ask the President why he doesn't stop this now. The President could today listen to this speech on the floor of the Senate, and he could change his mind. He could, this afternoon, with his pen--he says he has his pen and his cell phone--he can immediately stop the bulk collection of data. In fact, all of the alternatives he could continue and he could probably do now. He could also say he is going to collect the data with a warrant. He has all of that power. Someone should ask the President: Mr. President, why do you keep doing something the court has said is illegal? Why do you continue doing this, and why won't you stop? And how could we possibly think that it is a responsible answer to say: Oh, I will stop when they make me. His own privacy commission says that what he is doing is illegal and should stop. One of the things that people are worried about is that the government is forcing its way into the code source of different Facebook, Google, and different Internet companies. There are a couple of things that are occurring because of this. If you live in Europe, if you are Angela Merkel or if you are anybody in Europe, you might not want American stuff anymore. There are already rumors in discussion that billions of dollars-- there has been some estimating of over $100 billion--have been lost to where we have been a dynamic leader in software, in hardware, in the Internet. People don't want our stuff because they don't trust us anymore. One of the reasons they don't trust us is this. We have a group called the Tailored Access Operations that targets system administrators and installs malware while masquerading as Facebook servers. That is a little scary--that if you go on Facebook, somehow malware is getting into your computer and then searching and allowing them to know everything you are doing on your computer. If you have a warrant, to my mind you can do a host of these things, but do it to someone you have suspicion of. I think we have made the haystack so big that no one is ever getting through the haystack to find the needle. What we really need to do is isolate the haystack into a group of suspicious people and spend enormous resources looking at suspicious people--people for whom we have probable cause. If you think of almost every instance--I mean, go back to 9/11. You will have people come forward with a ridiculous assumption that if we had the PATRIOT Act, we wouldn't have had 9/11. We would have caught those two terrorists in San Diego. And I am like, you mean the two terrorists that were living with a confidential informant for a year? We knew who these people were. These people were talking to each other. It wasn't a lack of gathering information. All of these incidentals and all of this grabbing up of bulk records isn't what we needed. We needed the CIA to call the FBI. We needed further that FBI call Washington and for somebody to listen to them. The 20th hijacker, a guy named Moussaoui, was captured a month in advance. We got him in Minnesota. We got his computer. He was captured because people said--he was from a foreign country, and he was attempting to learn to take off planes but not land them. The FBI agent there ought to be given a Medal of Honor. Instead of giving the Medal of Honor to the head of the FBI, we should have fired the head of the FBI and this FBI agent should have been made the head of the FBI. He wrote 70 letters to his superiors. He caught the 20th hijacker. He should be a well-known name to every American and a hero. He caught the 20th hijacker. He saved lives. But his superior got 70 letters and did squat. I have no idea what happened to his superior, but nobody was fired for 9/11. Instead of firing the people who did not do a good job, we gave them medals. The guy who did a good job, I don't know what happened to him. (Mr. SCOTT assumed the Chair.) What we did is we decided we would just collect everybody's information, that we would sort of scrap the Bill of Rights. I have met a lot of our wounded soldiers. I have met young men who have lost two, three arms, two, three limbs, sometimes four limbs. I have met people who are paralyzed. And to a person, when I ask them ``What were you fighting for?'' they tell me ``The Constitution.'' They tell me ``Our way of life'' or ``Our Bill of Rights.'' Don't you think they would be disappointed to find out that they went over there and they risked life and limb and gave up part of their bodies and they came home, and while they were gone we gutted the Bill of Rights? Not only did we get it--we can have a difference of opinion on this, but not only did we gut it, we don't have time to debate it. We just willy-nilly say: That is fine. We are not even going to have time to debate it. We have known for 3 years that this debate was coming up. Yet, we squashed a bunch of bills in the last week, and we have no time for debate, no time for amendments, no time to discuss whether we are willing to trade our liberty for security. Franklin said that those who trade their liberty for security may wind up with neither. This is a very important debate that we need to have in the public, in the open. We worry about--or some of us worry that just in discussion of bulk records, we may not get to other programs the government just simply will not tell us about. A lot of them are written about, though. In another episode of the Electronic Frontier Foundation's newsletter, they talk about a program called Muscular. Muscular is a program that is siphoning off the data between different data centers. Yahoo and Google sometimes have--at least did have communication between them that was not encrypted. Your information was encrypted going to the data center, but then between data centers, it was not encrypted, and the government is simply siphoning all this off through Executive order. I do not whether it is foreign. I do not know whether there is incidental American. I do not know what is being collected. We have no oversight, no ability to vote on whether we continue this program or discontinue this program. The companies are sometimes not notified of the warrants or if they are notified of the warrants are told they cannot talk about them; they are gagged. This is the kind of stuff we need to have in the open. Some of the information people are talking about that the NSA collects on Americans is contacts from your address book, buddy lists, calling records, phone records, emails, and then they put it all into a data--I think the program is called SNAC. They put it all into this data program, and they develop a network of who you are and who your friends are through all of the interconnection of all of your contacts and friends. If you ask them ``Is any of this protected by the Fourth Amendment,'' the answer you will get is ``The Fourth Amendment does not protect third-party records.'' So, really, we are going to have this go to the Supreme Court. I said earlier that in the Olmstead case in 1928, Justice Brandeis was in the dissent. The vote was 6 to 3, I believe. The Court ruled that phone conversations have no protection. So we started out with a bad history. The phone was just coming around and becoming commonplace. The Supreme Court said: Your conversations do not have any protection. This went on for 40-some-odd years until we hit the late 1960s--I think 1968--and the Katz case. Then they say there is an expectation of privacy. So that was a big blow for those of us who believe in privacy, that we finally decided your phone conversations are private and that you have an expectation of privacy and that it should take a warrant with your name on it, individualized, with probable cause. But we go another dozen years, 10, 12 years, and we get another court case called Maryland v. Smith. Here, though, the Court ruled that your conversation are protected from the government, that the government has to have a valid warrant, but they end up saying that your records don't and that the government is allowed to eavesdrop and pick up and accumulate records about your phone calls without a warrant. I think that was a big mistake. The case in Maryland v. Smith, though, is one sort of petty criminal and a few records over a few-day period. The question that I would like to see before the Supreme Court would be, is that equivalent to all Americans' phone records all the time? There was at least some kind of investigation going on of this person. They did not do it the right way. I think they should have gotten a warrant. But in this case, what the government is arguing is that every one of you is somehow relevant to an investigation for terrorism. That is absurd. Finally, we get to the appellate court last week, and the appellate court says that. They say that, frankly, it is absurd to say that everybody in America is relevant to an investigation. Not only is it absurd, not only is it trifling with your privacy and your right to be left alone, but it takes our eye off the prize. Why do you think it is that there are not enough human analysts to know that Tsarnaev, the Boston Bomber, was plotting to bomb the Boston Marathon? Why did we not know he got on a plane to go to Chechnya? One of the things that we were told at least in the newspaper was that he had an alternate spelling of his name. So we have been 15 years and we cannot figure out that sometimes these names are spelled a little differently and we did not know he flew back and was radicalized in another country. I am for spending more money and more time on analysts to investigate and look at the data connected to people of suspicion. But I do not want to spend a penny on collecting all of the information from all of the innocent Americans and giving up who we are in the process. We have to fight against terrorism. We have to protect ourselves. But if we give up who we are in the process, has it been worth it? Are you really willing to give up your liberty for security? What if the security you are getting is not even real? They said the 52 people who were caught through the bulk collection program--the President's own privacy group investigated and said not one person was captured. There is a possibility of one, but they already had information on him from some other source. Under the Executive order, we are still not talking about the PATRIOT Act, we are talking about something that nobody knows much about at all. No common Member has been, to my knowledge, informed of what is going on in this program; none of those not on the Intelligence Committee. But they have something with this information called the special procedures governing communications metadata analysis. This is allowing the NSA to use your metadata--phone records, et cetera, who you call, how long you speak--under the PATRIOT Act and section 702 to create social networks of Americans. So not only are we collecting your data because the government says--and realize this; many of your elected officials are saying this: that you have no right to privacy and the Constitution does not protect your records. They are collecting all of your records, some of it incidental, but they are creating these enormous databanks, but then they are connecting metadata to other metadata to create social networks of who you are. You should be alarmed. We should be in open rebellion saying: Enough is enough. We are not going to take it anymore. We should be in rebellion saying to our government that the Constitution that protects our freedoms must be obeyed. Where is the outrage? I tend to think young people get it. Young people--you see them-- their lives revolve around their cell phone. They realize that if I want to know about their lives, if I collect the data from their phones--not the content of their phone calls but the data from their phones--that I can know virtually everything about them. Do we want to live in a world where the government knows everything about us? Do we want to live in a world where the government has us under constant surveillance? They will say: We are not looking at it; we are just keeping it in case we want to look at it. The danger is too great to let the government collect your information. I think there is a valid question as to whether simply the collecting of your information is something that goes against the Constitution. One of the other areas where we are seeing collection of data--I mean, it would just boggle your mind. We are not just talking about one program; we are talking about dozens of programs the government has instituted to look at your stuff. There is another group called EPIC, the Electronic Privacy Information Center. They talk about suspicious activity reports. Those are reports your bank has to file whenever you deal in cash at the bank. There are certain dollar limits. They think, well, gosh, someone is probably a bad person if they are putting $9,500 in cash in the bank. Well, it turns out that a lot of honest, law-abiding people do that. Not too long ago, there was a Korean husband and wife. They owned a grocery store. They dealt with a lot of cash. They were very successful. Three times a day, they deposited over $9,000, $8 to $10,000. They tried to stay under $10,000 because there were all kinds of extra paperwork if you were over $10,000. So what the government said is, you are structuring your deposits to evade people. You must be guilty of something. The government then can accuse people of a crime and take their stuff. There is something called civil asset forfeiture. It does not require that you be convicted, does not even require that you be accused of something. There was a story not too long ago in Philadelphia--Christos Sourovelis. The teenager was selling drugs out of the back of the parents' house. So they caught the kid and they were punishing him, but they decided they would punish the parents, too. They confiscated the parents' house and evicted the family. So the teenager makes a mistake by selling drugs, and what does the government do? They take the parents' house. So you think that is going to help the kid or help anything get better in this situation by taking the house? But here is the rub: The kid did not even have to be convicted of anything. The kid did not own the house; he was just their kid. If we allow all kinds of data to be out there to catch people and then we are not even going to require that you are convicted of a crime before we take your stuff--you can see the danger of allowing so much data to be collected. But we are currently convicting and taking people's stuff or their money simply based on what they are using it for. The Washington Post did a series of articles on this. Turns out that most people having their stuff taken are poor, often African American, often Hispanic, but for the most part poor. One guy was here in Washington and had $10,000. He was going to buy equipment, such as a refrigerator or a commercial oven or something, for his restaurant. They just stopped him and took his money. It took him years to get it back. He only got it back because the Institute for Justice defended him in getting it back. But it turns justice on its head because he was basically considered to be guilty until he could prove himself innocent. Realize, then, that people like this are sometimes being picked up because of something called suspicious activity reports. Suspicious activity reports make your bank into a policeman or policewoman. When you deposit things, they are obligated to report you to the government. Does it sound something like ``1984''? Does it sound like you have informants out there everywhere--see something, say something; that your banker is going to call the government if you put cash into the bank? The burden should always be on the government to prove you are guilty of something. You should never be convicted and you should never be punished without there first being a trial, without there first being evidence, without there first being a trial with a lawyer, with a verdict. Some of this has gone into the war on drugs. The war on drugs has a lot of problems. But part of it has been the abuse of our civil liberties. Also, part of the war on drugs is that there has been a disparate racial outcome. What do I mean by that? There have been instances where--if you look at the statistics, three out of four people in prison are Black or Brown and are there for nonviolent drug use. But if you look at the surveys and you ask yourselves: Are White kids using drugs the same as Black kids, it is equal. White kids are 80 percent of the public. How do we get the reverse for 80 percent of the population in jail is Black and Brown? It is a problem. If we can't figure it out, you are going to have to continue to realize why people are unhappy. If you want to know why there is unhappiness in some of our cities, you should read The New Yorker. About 3 or 4 months ago they did a story about Kalief Browder. Kalief Browder was a 16-year-old Black kid from the Bronx. He lives in a poor situation. His family had no money, and he had been in trouble before. But he was arrested, and he was sent to Rikers Island--16 years old, arrested, sent to Rikers Island. His bail was $3,000. His family couldn't come up with $3,000. He was kept for 3 years without a trial. At least some of it was in solitary confinement. He tried to commit suicide. Can you imagine how he must feel? Can you imagine how his parents must feel? Can you imagine how his friends feel, the kids he went to high school with. Do you think they think justice is occurring in our country? We have to be careful we don't let slip away who we are in the process of all of this fight against terrorism, all of this fight against drugs, because what happens is people take things that are bad. Terrorism is bad, drugs are bad. But we take this fight about something that is bad, we forget about the process of law, we forget about the rule of law, and we forget who we are in the process. But if you want to know why people are unhappy in some of our big cities, you want to see that unhappiness in the street, it is because some people don't think they are getting justice. I, frankly, agree with them. I think there isn't justice in our country when this occurs. Originally, we had the Constitution. Then after 9/11 we got the PATRIOT Act. The biggest change between the Constitution, which provided protection for us from people, bad people, for 200 years or more--the biggest difference is we changed the standard on how we would arrest people or how we would give out warrants. I remember having this debate about 3 years ago when we talked about the PATRIOT Act. I was walking along talking to another Senator, and he was alarmed that the PATRIOT Act would expire at midnight. What would we do? And I was like: Couldn't we, for just a couple of hours, you know, live under the Constitution? I mean we did for 200 years, for goodness' sake. We have all kinds of tools. There is almost no judge in the land that is going to turn down a warrant. The FISA warrants, the ones they give for security, 99.9 percent of them are approved. Couldn't we give out warrants? They said it takes too long. Computers work in the blink of an eye. In the blink of an eye, if John Smith is thought to be a terrorist and he called 100 people, in the blink of an eye, I can look at the 100 on the list and I can say: What is the evidence that some on the list look suspicious or any of them from a foreign country or any of them on another list from somebody calling from a foreign country. There are ways to look at this where we would simply then get a warrant for the next hop and the next hop and the next hop. There is no reason we can't catch terrorists the same way we catch other bad people in society by using the Constitution. Initially, the government had to show evidence that you were an agent of a foreign power, but this is no longer true. Now all you have to do is make a broad assertion that the arrest is related to an ongoing terrorism investigation. The problem in the FISA Court is that when they take you to this court, it is secret. You don't get your own lawyer, and basically the government says to the FISA Court judge: Oh, yes, it is related to an investigation--but I don't believe they are forced to show that it is relating to an investigation. In some ways, I think we have gone too far because what you end up having is you have people who are saying it is related, but the question is, Is there any evidence that there is a relation to it and how could there be a relationship of everybody in America to an investigation? We also often have given gag orders, and this is one of the big complaints of the Internet companies. They get order after order after order, a national security letter. They get all of these suspicionless warrants, and then they are told they can't talk about it or they will go to jail. There are some people who got gag warrants who were librarians and for a decade or more were not allowed to talk to anybody to say that they had received this warrant. The American Civil Liberties Union has written that the PATRIOT Act ``violates the Fourth Amendment,'' which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that a person has committed or will commit a crime. The ACLU goes on to say that it ``violates the First Amendment's guarantee of free speech by prohibiting the recipients of search orders from telling others [these are the gag orders] about those orders, even where there is no real need for secrecy.'' These are the gag orders. They also say that it ``violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.'' Now, they went back in and they wrote the rules and said: Oh, you are not supposed to do it if it violates someone's freedom of speech. But the bottom line is that the opening we have given to the intelligence community is so wide that there are, for all practical purposes, no limitations on the gathering of your information. In the Maryland v. Smith case, we kind of get to the point where we have said that telephone conversations are protected, but we have said trace-and-trap and pen register, where they collect your data by phone calls, is not. The problem is--and this is a problem that needs to be corrected by the courts--at this point they are essentially nonexistent. There are no protections in the court for any kind of warrant that has to be gotten for any kind of metadata. The FBI need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge, without having to prove it, that such a warrant would be relevant to an ongoing investigation. Also, typically in the past, when we gave warrants for wiretaps, they were sorted to entities. You kind of had to name the entities. But now we are giving the ability to collect data, pen register, trace-and-trap data on your phone calls nationwide. This is a severe departure from what we had had in the past because typically warrants were given under a judge's jurisdiction, so within a region. But now we have a blanket order that says we can collect any of your phone records, anywhere, anytime, across the whole country. This goes against the history of the way we have had juris prudence. We talk a lot about phone data but your emails are in there too. Interestingly, your emails, after 6 months, have no protection at all. So any email you have on your computer, after 6 months, has no protection at all. Up to 6 months, there is a little bit of protection, but the government is allowed to look at--without a probable cause warrant--is able to look at whom you are communicating with and the header on the subject line. The government is also able to look at, through metadata, the Web sites you visit. You can see how various groups would say that might be an infringement of their First Amendment because let's say the government now knows I go to Electronic Frontier Foundation or I go to EPIC or I go to ACLU. I am concerned with civil liberties. Am I a potential problem to the government? I am concerned and I am a critic of the government. Is it a problem the government now knows what Web sites I go to and that I am concerned with this? Now, if the government would hear--they would say: No, that is not what we are doing. But the other part of the question is maybe not yet, maybe not now, but you can also squelch and severely restrict First Amendment practices if just simply the fear of the government looking at it might change my behavior. There is all the evidence, there have been surveys, saying that 20, 25 percent of people doing things online are changing their behavior because they are afraid of the government. The government argues that the list of Web sites and Web site addresses is simply transactional data, but I think there is much more you can garner from this data. The PATRIOT Act that is due to expire is just three sections. Interestingly, the complaints that I have are a lot over section 215, which the government claims is their justification for collecting all of your phone records. Now, the courts have said otherwise. The appeals court said last week that the business records do not give them the authority to collect your records. In fact, the courts have been very specific that it is illegal. The President is currently ignoring the court, and the President continues to collect your phone data, all of your phone data, all of the time, as much as they can get. They have not changed any of their behavior, that I know of, since it was declared to be illegal. Some of the changes--I would repeal the whole thing. I would repeal the whole PATRIOT Act. But some of the changes that I would favor, if we were allowed to change it, if we could get a consensus in this body that would mirror the consensus that I think is in America--once you get outside the beltway of Washington and you go back into America and you ask people are they for this, the vast majority of people think the government shouldn't collect all of their phone records all of the time. But there are some changes we could make. I think the first thing we ought to do is not replace this system but basically say we are not going to collect data in bulk, that we are not going to collect your phone records, your credit card information, your emails, and where you go on the Web. We are not going to collect that in bulk. I think we could change the PATRIOT Act to say we are only going to collect data that has to do with someone who is suspicious, that we have presented some suspicion to a judge, and that the judge said: This is probable cause. The standard is not that hard. It is hard for me to imagine, in fact, a judge saying no. Judges always say yes. If at 3 in the morning there is a murder somewhere inside a house in DC, what do you think the odds are that when the police call for the warrant that the judge will say no? Odds are most of us want the judge to give permission. But it is the checks and balances that we want so we don't have police who operate on bias or bigotry or religious discrimination. We want the people to be bound by the rule of law. It is kind of interesting, because you will hear Republicans sometimes give lip service to the rule of law. But in giving lip service to the rule of law, what happens is they seem to forget the whole idea of privacy. They are for it in economic transactions but not so much with regard to personal liberty. The New York Times has written and talked about some of the economic effects of this. In an article by Scott Shane a couple of years ago, he talks about the idea that foreign citizens, many of whom rely on American companies for email Internet services, are concerned about their privacy. Now you can say you don't care about foreigners, and they don't get the same standard as we get, so you can understand maybe there is going to be a lower standard. But realize, if we are going to say the standard is quite a bit different and that there is no protection for anybody's data on the Internet, realize that standard is going to scare people in other countries away from our stuff. It is going to scare people away from our email companies. It is going to scare people away from our search engines. I think if you would talk to any of these companies out there--and some of these companies are some of the greatest success stories in our country--if you think of the Internet revolution and you think of how America has really led, America has been the leader. We have created hundreds of thousands of jobs, billions of dollars of profit. In our zealousness to grab up every bit of information and in our zealousness to ignore, basically, the Constitution, we are grabbing up so much stuff we are scaring people to death. There has already been billions of dollars lost to North American companies because of this, because Europeans, Asians, they don't want our stuff anymore. They don't want things with our hardware. They don't want to deal with our services because they are fearful the U.S. Government is looking at all of their transactions. The government is pretty clueless over this. Recently, one of the members of President Obama's administration came out--in fact, several members--complaining about encryption. They are like: Well, you know, we are going to maybe have some laws to prevent these companies from encrypting things. It is like: Don't you get it? Don't you get why companies--the encryption is a response to government. The encryption is a response to a government that has run amok basically collecting our information, collecting all of our information. So if you are an American Internet company, if you are an American search engine or an American email company, what do you think you are saying? You are saying: The only way I am getting Europeans back, the only way I am getting Asians back is to say I am going to protect them from my government. Isn't that a sad state of affairs? People say: Well, how will you get terrorists if everything is encrypted? Edward Snowden was using an encrypted email server, and the company that was housing him--that was specifically the genre of their business. They had a business that was encrypted because some people want to be private for a lot of different reasons, many of them legitimate--business, legal, personal reasons. But, anyway, when they came to get Edward Snowden's email, they didn't ask just to get his email; they said they wanted the encryption keys for the entire business. See, this is the problem. You have to realize there are zealots who don't seem too concerned with your privacy rights. Imagine what they are going to do if they say to Apple: We don't want just the encryption for you to let us in one time to see John Smith, who we think is a terrorist; we want you to let us in all of your products. If they force a good company like Apple to do that, who in the world would want anything from Apple anywhere in the world? There is a danger that we will destroy great American companies by forcing this surveillance into their products. (Mr. TOOMEY assumed the Chair.) Senator Wyden has also made a good point. If the government is going to mandate backdoor access to the code source and the government is going to say that Facebook or Google has to let them in a backdoor, that is a window, that is a breach of the wall, it is a breach of protection. Senator Wyden and others have made a good point. He said: If you do that, you will be actually weakening these companies to attacks of cyber security because if somebody can get in, somebody else who is smart can get in as well. So there is a danger to letting the government in. There are dozens and dozens of these programs. The NSA has something called the Dishfire database. It stores years and years of text messages from around the world. That might be fine except for it ends up trapping people who are also American citizens as well. It ends up tracking and trapping purely domestic texts that are retransmitted outside the country. They have a program called Tracfin that collects and accumulates gigabytes of credit card purchases. I don't know--for some reason, I am more appalled by the credit card purchases than I am the phone because I think of all the stuff you can buy with your credit card and what it indicates about you. With phones--you can find out a lot with people's phone records. When the Stanford students looked at phone records, they found that 85 percent of the time they could tell your religion. The vast majority of the time, they could tell your doctors. The vast majority of the time, they could tell what disease you had. The vast majority of the time, the government can then also connect you through social networking and tell an extraordinary amount about you. With a credit card, it is even more explicit than that. They can tell if you drink, if you smoke, and how much, what magazines you buy, what books you read, what medicines you take. All that is on your credit card. And we are more and more that type of society. We are less and less a society of cash and more and more a society where everything is on paper. That should worry us. It should worry us that the government has access to all of our records all of the time. It should concern us that the government also says, when you ask them--and this is an important point--that your records, when held by a third party, are not protected at all. It is debatable whether that is true. I think it needs to be looked at again by the court, and I think there are those who will, in the court, say your third-party records are. The Maryland decision was 6 to 3. Justice Marshall felt your third-party records should be protected. He specifically mentioned that there was a potential stifling effect for association, there was a potential stifling effect for speech, and he was quite concerned that the government really should have a warrant to look at your records. My hope is that someday the Maryland v. Smith case will be relegated to the dustbin of history, into the same dustbin in which we put Olmstead. In Olmstead, they said you couldn't have any protection for your phone records. It went on for 40 years. I think we still live with some of that because we have trained and taught the phone companies not to be great advocates for our privacy, and there doesn't appear to be seen a great deal of fighting on the part of the phone companies in advocating for us. Some of the Internet companies have begun to step up. But I would like to see both phone companies and Internet companies stand up and say: We are not going to do it. We are not going to give you access to us, and you will have to take us all the way to the Supreme Court. If they did, if there was unified resistance among the consumer and among the companies to say ``We are not going to let you have our data without a fight, and you are going to have to prove suspicion, and that you are going to have to get a specific warrant,'' I think then we might be able to get back to a more constitutional scenario. Within the NSA, there has also been evidence of installing filters in the facilities of Internet and telecommunication companies, serving them with court orders, and building backdoors into their software and acquiring keys to break their encryption. If this becomes the norm, you can see how people will flee American products, and people will say: I am not going to use American things. There is an enormous, beyond- imagination economic punishment to our country that is occurring now and going to continue and worsen if we don't wise up and send a signal. So for those in this body who say: We need to collect more information. We are not getting enough information. Warrants be damned. I don't care what they do. Take all my information, get as much as you want--those people will have to explain why they are destroying an American industry and why people around the world are going to say: We are alarmed at that, and we want some protection. If we are going to use American products, if we are going to use American email, we want to know there is not going to be indiscriminate collection of our information. Bill Binney was probably or is probably one of the highest ranking whistleblowers from the NSA. The things he has to say should disturb us because he probably knows more about this than any of us will ever know. Bill Binney said that without new leadership--this is in our intelligence agencies--new laws and top-to-bottom reform, the NSA will represent a threat of turnkey totalitarianism. The capability to turn its awesome power--now directed mainly against other countries--will now be turned on the American public. Originally, all of these intelligence forays were to get foreigners. We lowered the standard, saying: Well, they do not live here. These are potentially terrorists, and so we are going to have a lower standard. They started out as foreign searches. In fact, the NSA was originally intended to search for foreigners and to search the information of foreigners. And I am not opposed to that. In fact, I was on one of the Sunday morning programs this week, and they asked: Well, are you for eliminating the NSA? I said: Of course not. I am for the NSA. I want the NSA to do surveillance that will help to protect us from attack. Not only am I for surveillance, I am for looking as deep as it takes. But I want some suspicion. I want suspicion that this person--that there is some evidence against this John Doe. You don't have to prove they are guilty; you just have to have something that points toward them being suspicious. You then go to the judge, and the judge says: Here is a warrant. And if there is evidence the people he called is suspicious, go back to the judge and get another warrant. Go deeper and deeper. There is no reason why this couldn't be done nearly instantaneously. There is no reason why it couldn't be done 24 hours a day. And there is no reason why we can't have security and the constitution as well. This battle has not been just about records; it has also been about another key part of the Bill of Rights, which is the right to a trial by jury, the right to due process, the right of habeas corpus. The Fifth and Sixth Amendments I see together as sort of the amendments that are with regard to your person and with regard to whether you are treated justly by your government. As we became fearful of terrorists, we said: Well, we are just going to capture people and we will just hold them indefinitely. It is one thing to catch someone on a battlefield in a foreign land shooting at us--and I have said repeatedly that people in battle don't get due process, but people outside of battle, particularly American citizens, should. In some of these cases, we are talking about American citizens accused of a crime--perhaps terrorism--who are caught in our country. Yet, we are going to say: Well, they do not really deserve trials. They do not deserve lawyers. In fact, and I find this really hard to believe, one Senator said recently: Well, when they ask you for a judge, just drone them. Ha-ha. The same guy said: Well, when they ask you for a lawyer, you just tell them to shut up. About 10 years ago, Richard Jewell was thought to be the Olympic Bomber. Everybody said he did it. The TV convicted him within minutes. Everybody said he was the Olympic Bomber. He fit the profile: He wore glasses, he was an introvert, he had a backpack, and he seemed very helpful. Somehow, that was the profile. Everybody said he did it. The only problem is, he didn't do it. So here he was accused of being a terrorist, of exploding something, doing something terrible and killing innocent people. And I think to myself, if he had been a Black man in the South in 1920, what would have happened to him? Or if he had been any American in this century if the people who believe in no jurisprudence were really in charge. We should be afraid of ever letting these people get in charge of our government, because the thing is that Richard Jewell was innocent. People say: Well, these aren't just American citizens, they are enemy combatants, and we don't give any kind of jurisprudence--no judges or lawyers for these people. They are enemy combatants. Well, it kind of begs the question, doesn't it? Who gets to decide who is an enemy combatant and who is an American citizen? Are we really so frightened and so easily frightened that we would give up a thousand-year history, the Magna Carta, even before we had juries--even in the Greek and Roman times, we had juries. Are we really willing to give that up and give people a classification that the government assesses them that cannot be challenged, where people don't get a lawyer, they do not get presented to a judge and told why they are being held, and we would hold them forever? This was the debate over indefinite detention. The response I got during the debate was: Well, yeah, we would keep them. We would send them to Guantanamo Bay. An American citizen? Sure, if they are dangerous. Kind of begs the question, doesn't it? Who gets to decide who is dangerous and who is not? When this finally made it to the Supreme Court, though, whether you could hold an American citizen, the Supreme Court rejected the administration's claim that those labeled ``enemy combatants'' were not entitled to judicial review. It took years and years to finally have the Supreme Court tell people that the Bill of Rights was still in effect, that if you are an American citizen accused of a crime in our country, no matter how heinous, you do have a right to a trial by jury, you do have a right to a lawyer, you do have the right of habeas corpus, you do have all of the rights of an American citizen. And no one can arbitrarily take those away from you. And if you don't think that is potentially a problem, think of the South in the 1920s. Think of what would have happened if Richard Jewell were a Black man in the 1920s. He might not have lived the day. Think if Richard Jewell had been a Japanese American during World War II, when we decided that the right of habeas corpus didn't apply to you if your parents were from Japan or if your grandparents were from Japan. There was an experiment I remember, I think in college--a psychology experiment. They put a person in a room, and they said: This person has information, and we are going to shock them just a little bit. Here is the dial. You get to decide. They wanted to ask how high people would turn up the dial. It was pretty scary--a good amount of people you would imagine are normal, respectable people--how high they would turn the dial to shock somebody or to torture somebody. So we think that wouldn't happen, but it does. Any time we make an analogy to horrific people in history--to Mussolini or Hitler--people say: You are exaggerating; it is a hyperbole. Maybe it is. Particularly, to accuse anybody of that is a horrific analogy, and I am not doing that. But what I would say is that if you are not concerned that democracy could produce bad people, I don't think you are really thinking this through too much. And if you are not concerned about procedural protections--procedural protections are how evidence is gathered, how evidence is taken from your house, what rules the police have to obey. People don't quite get this. We don't have a mature discussion on this. Any time we try to say that this should stop and that someone could be a bad policeman, the media dumb it down and say that we are saying policemen are bad. No, it is the opposite. Some 98 or 99 percent of the police are good. In fact, in the general public it is pretty close to that. The thing is that we have the rules in place for the exception to the rule. We have these procedures in place because maybe it isn't tomorrow that we decide that we are going to round up all the Japanese Americans again and put them in internment camps, but maybe next time it is Arab Americans. So we have to be concerned with this because we don't know who the next group is that is unpopular. The Bill of Rights isn't for the prom queen. The Bill of Rights isn't for the high school quarterback. The Bill of Rights is for the least among us. The Bill of Rights is for minorities. The Bill of Rights is for those who have minority opinions. The Bill of Rights is for those who are oddballs, those who aren't accepted, those who have unconventional thinking. If we are so frightened that we are going to throw all the rules out and we are just going to say that here is my liberty, take it, and here are my records; I didn't do anything wrong, so I don't mind if you look at all my records; if you say the standard will now be that if I have nothing to hide, I have nothing to fear and look at everything I do, then there will be a time and there will be a danger that, in giving up your freedom, in giving up your privacy, you will find that the world you live in is not the world you intended. There have been good folks within the National Security Agency who have talked about and have pointed out that we have gone too far. Bill Binney was one of those. He was a high-ranking NSA official who decided that they had gone too far. There was an interview--it has probably been 1 year or 2 years ago-- with Bill Binney that was in ``Frontline.'' One of the first questions was: What a lot of people in government will say is that you don't understand; we're still at war. Remember we lost 3,000 people in 9/11. This is a very important program. They talk about the warrantless collection of all records: It has saved thousands of lives, as Cheney said at one point. There are multiple plots that have been stopped because of this program. You've got to be very careful about what you wish for, because if you do, you might have another attack, and you might have blood on your hands. Fear. What is your reaction to this question about the effectiveness of what all this has been? Binney replied: First of all, they like to lump it in as one program and say you can't cancel the program. In fact, Binney was famous because he had been working on a program that did investigate terrorists but protected American information and deleted American information from incidental collection. So he said: That's false to begin with. It's multiple programs. The one program that dealt with domestic spying was called Stellar Wind. Stellar Wind was one that was also created by Executive order and was done without the permission of Congress before the PATRIOT Act. They had the other foreign ones; you mentioned the names. There were other names that were listed in the PRISM program that was dealing with foreign intelligence. There were a whole bunch of those programs, not just one. So the point is you stop the intelligence, the domestic intelligence program, period. So Binney's opinion was--this is the guy who wrote a lot of the original programs. Bill Binney said he would continue gathering information on foreigners. This is a guy who worked for 30 years for the NSA. He is not some dove who doesn't want to do anything about terrorists. Bill Binney worked for 30 years to develop the programs to help us catch terrorists, but he felt it wasn't proper or constitutional to collect Americans' records without a warrant. He said if we get incidental records, destroy them; don't collect them. He says: Eliminate them. [The records of Americans are] irrelevant to anything that-- The incidental collection-- is going on. All the terrorists would have been caught by the process that we put in place for ThinThread-- ThinThread was a program they had before they went to the unconstitutional program-- which was looking and focusing in on the groups of individuals that we already had identified and anybody in close proximity to them in the social graph, plus anybody-- the other simple rules like anybody that was looking at jihadi advocating sites. . . . Et cetera. That would get them all, and you didn't have to do the collection of all this other data that requires all that storage, transport of information to the storage, maintenance of it, interrogation programs, all of that added expense that they are incurring as a part of it over the last 10 years. You wouldn't have any of that. . . . Frontline then asks: This problem of haystacks, how big a problem is that? Is that what we've done, is we've created a situation where the haystacks are bigger, and it's almost impossible to find? This was Frontline's question. It is a question I have been asking, also. If you collect all of Americans' records all of the time, if we collect all of your phone records, can we possibly look at them? Now, computers are getting better, but still there has to be a human involved. I think we are overwhelmed with data. At one time about a year ago, I remember an article where I think they collected millions and millions of audio hours. They had just been collecting. They were vacuuming up everything. And I think they had only been able to listen to about 25 percent of it. So the thing is that there is information that we need to get and we should get. When the Tsarnaev boy--the Boston Bomber--went to Chechnya, we needed to know that. We needed to continue to see if there was evidence that we could take to a judge to continue to investigate him. So we do need surveillance. But what we don't need is indiscriminate surveillance, and we don't need the haystack to get so big that we can never find the terrorist in the stack. Binney responds: Well, what it simply means is if you use the traditional argument they say we're trying to find a needle in a haystack, it doesn't help to make the haystack orders of magnitude larger, because it makes it orders of magnitude more difficult to find that needle in the haystack. Frontline: And is that what they've done? Have we made that haystack so large that we are actually having more trouble catching terrorists because we're scooping up and swooping up all of America's data? Binney: That's what they've done. And now they're looking at things like game playing and things like people doing that. I mean, this is ridiculous. How relevant is that to anything? Frontline: But they say there're computers, and in Utah they're going to be able to take all this stored data, and they're going to be able to go through all of it, and they're going to be able to connect the dots. Connect the dots--that's what everybody wanted them to do after 9/11. Bill Binney, former senior NSA: See, that's always been possible. Before 9/11 we were doing that. That was already happening. We already had that program. That wasn't an issue at all. That's why we should have picked this out from the beginning. We should have implemented it, the ThinThread [program that they'd already been working, the] connect-the-dots program on everything in the world, but we didn't. That's why we failed. It wasn't a matter of not having the program; it was a matter of not implementing the program we had. When 9/11 came, we gave medals to the heads of our intelligence agencies. No one was ever fired. Yet the 20th hijacker was caught a month in advance. Moussaoui was caught in Minnesota for trying to take off in planes but not land them. The FBI agent there wrote 70 letters to his superior trying to get a warrant. It wasn't that we had to dumb down and take away the procedural protections of warrants. The warrant wasn't denied. They would have a much stronger argument if they could say: We tried to catch the terrorists, but the judges kept saying no to warrants. It is absolutely not true. They didn't ask the judge for warrants. So the 70 requests in Washington sat at FBI Headquarters and weren't requested. We also had another hijacker in Arizona training to take planes off. Once again, the FBI agent there was doing a great job in sending the information to Washington, and but people were not talking to each other. It had nothing to do with saying the Constitution is too strong, and we have to weaken the Constitution or we will never catch terrorists. It had nothing to do with that. But that is precisely the argument we have. In the aftermath of 9/11, the PATRIOT Act was rushed to the floor-- several hundred pages--and nobody read it. It didn't come out of--there was one out of the committee. They didn't use that. They rushed a substitute to the floor, and no one had time to read it. But people voted because they were fearful, and people said there could be another attack and Americans will blame me if I don't vote on this. But we are now at a stage where we should say: Are we willing to give up our liberty for security? Can you not have both? Can you not have the Constitution and your security? I think you can. Several agents other than Bill Binney have also said--several national security officials--that the powers granted the NSA go far beyond the expanded counterterrorism powers granted by Congress under the PATRIOT Act. The court now agrees with that. Any time someone tries to tell you that metadata is meaningless, don't worry. It is just whom you call. It is just your phone records. It is not a big deal. Realize that we kill people based on metadata. So they must be pretty darned certain that they think they know something based on metadata. So these are ostensibly or presumably terrorists that are being killed. But what I would say is that if they are killing people based on metadata, I would think you would want your own metadata pretty well protected. To give you an example of how Representatives are sometimes getting it right, in the House of Representatives, they have seen and responded to the people. Thomas Massie and Representative Lofgren introduced an amendment to the Defense appropriation bill last year. This amendment would have defunded the warrantless backdoor searches--what they are doing through 702, which is an amendment to the FISA Act. This is where we say we are investigating a foreigner, but the foreigner talks to an American who talks to other Americans, and it ripples out into enormous amounts of incidental information. The information from 702, when you analyze it--9 out of 10 bits of information that are collected--is not about the person we have targeted. They are incidentally collected about other individuals. But when Representative Massie and Representative Lofgren introduced their amendment to defund the backdoor searches and to tell the CIA and NSA that they cannot mandate that companies give a backdoor entry into their product, the amendment passed 293 to 123. But just to show you that no good deed goes unpunished and just to show you the arrogance of the body--the vast majority of people do not want their phone records collected without warrant--what did they do when this passed 293 to 123? They stripped it out in secret in conference committee and it was gone. The reason it was gone is like everything else around here. You wonder why your government is completely broken. We lurch from deadline to deadline, and it is on purpose really. We do deadline to deadline because we have to go. It is spring break. We are going to be late for spring break. We have to go, so we have to finish this up before we go. It is how the budget is done. No one ever votes on whether we are going spend X or Y. They put the whole budget into 2,000 pages. Nobody reads it. It is placed on our desk that day. Nobody has any idea what is in it. None of your concerns about your Government are ever addressed. We just pass, boom, the whole thing and it is out the door. It is the same way with these kinds of things. Because there is a deadline--and this amendment was passed 293 to 123, saying that we shouldn't fund these illegal searches and that we should stop the bulk collection records--it is passed overwhelmingly. Yet, in secret, somehow it is taken back out of the bill and never becomes law. Now, while I don't agree completely or really at all with the reform that has come forward out of the House, it is at least evident they are listening. They have a bill that would end the bulk collection of records to replace it with, I think, maybe another form of bulk collection, but it still passed overwhelmingly, 330-some-odd votes. But do you know what you hear when it gets over here? They say the Senate is distanced more from the people and not as responsive--absolutely true and sometimes to the detriment of the public. Because the thing is that while it is overwhelmingly popular with the American people that we should not be collecting your phone records without a warrant-- without a warrant with your name on it, and the House has recognized this and passed something overwhelmingly to try to fix it--the first thing I hear over here from people is, Well, we are not collecting enough of your phone records. They are disappointed that the government isn't getting--they have access and they claim they can get it, they gain access to everything, but the Government really is not collecting all of it, so people are very disappointed; they want to collect more. The American people say: Enough is enough. We want our privacy protected. We want the Government to take less of our records. Congress recognizes that--the House of Representatives. Then it comes over to the Senate, and the Senate says: Oh, my goodness. We want to collect more of your records. We do not think we are getting enough into your privacy. We do not think we have completely trashed the Bill of Rights enough; let's try to gain more of your records. One of the other things the Massie-Lofgren amendment did--that did pass over there--was to get rid of and say that no funds would go to mandate or request that a person alter his product or service to permit electronic surveillance. This is what is going on. What is pretty nefarious and antithetical to freedom is that our Government is telling companies like Facebook and Google and these other companies--they are forcing them to let the government have access into their products. Everybody knows this is going on. It is no secret, and it is killing these companies in their worldwide market because non-Americans don't want to use their email. They are afraid the government has forced their way into all their transmissions. There is currently another bill in the House put in by Representative Pocan, Representative Massie, Representative Grayson, and Representative McGovern that would repeal the entire thing. It repeals the PATRIOT Act and FISA amendments of 2008, permits the courts to appoint experts, permits the courts to have appeal. It basically tries to make our intelligence courts more like an American court or American jurisprudence. EPIC is the Electronic Privacy Information Center. They talk some about these national security letters I mentioned earlier. There are now hundreds of thousands of national security letters. These are letters that are warrants. They are not signed by judges. They are actually signed by the police. This goes against the fundamental precept of our jurisprudence. The fundamental aspect was that we divided police from the judiciary. It is supposed to be a check and balance. In case the local policemen had some sort of bias, they always had to call somebody else. It is not perfect, but it is a lot better than not having a check and balance. When we got to NSL--this comes out of the PATRIOT Act--they start out with a few thousand, and they grow and grow. Now there are hundreds of thousands of them. But realize that the national security letter is similar to what we fought the Revolution over. We fought the Revolution over writs of assistance, which are basically generalized warrants, but they were also written by British soldiers. We were offended that a soldier would come into our house with a self-written permit. A lot of the reaction and the reason we wrote the Bill of Rights the way we did is that we were concerned with British abuses. We were concerned with the idea of general warrants. So when we wrote the Fourth Amendment, we said that it had to be specific to an individual. We said you had to name the individual. That is one of the real problems with the bulk collection of records. They are not really based on suspicion of an individual because basically the government is collecting all of your records, indiscriminately. The government is not even obeying the loose restrictions they put in place. The Constitution says you have to have probable cause. You have to present some evidence to a judge. You don't have to prove that they are guilty, but you have to have enough evidence that the judge says it looks like that person could be guilty of a crime. So with the PATRIOT Act we lowered that standard and then lowered it again. For collecting information under the PATRIOT Act, all you have to do is say that the information you want is relevant to an investigation. When this got to the court, the court basically said this is absurd. So 2 weeks ago, the court just below the Supreme Court said it is absurd to say that every American's phone record is somehow relevant to a terrorist investigation. They said it takes the meaning of the word ``relevant'' and basically destroys any concept that the word has meaning at all. The PATRIOT Act went to a much lower standard, not probable cause but just that it might be relevant to an investigation. And even with that lower standard, the court said that is absurd. How does the President respond? The President responds by doing nothing. The President could end this program tomorrow. Every one of your phone records is being collected without suspicion, without relevance. In contradiction to even what the PATRIOT Act says, your records are being collected. The second highest court in the land has said this is illegal, and the President does nothing. The President said to Congress, Oh, yes; I will do it if Congress will do it. It is a bit disingenuous. We did not start the program. The authors of the PATRIOT Act had no idea this was going on. The PATRIOT Act, according to the court, does not even justify this. We are looking at telephone records. We are looking at email records. EPIC, the Electronic Privacy Information Center, has another big complaint about this; that people were put forward and then told that they could not even talk about the fact that they had been given a warrant. They were threatened with 5 years in prison for even mentioning that they had been served a warrant. This, I think, is an obvious contradiction of the First Amendment. We have legislation that contradicts the Fourth and the First Amendments. The national security letters in 3 years, from 2003 to 2005--these are the warrants that are written by FBI agents, not written by a judge--there were 143,000 warrants given out in our country to Americans with a warrant written by the police. The New York Times has talked about this, and Charlie Savage in a report last year reported that the Justice Department had to apologize to a Federal appeals court for providing inaccurate information about a central case challenging the unconstitutionality. Now, what is truth and what isn't truth. When you go to a court, it is like when your kids fight; there are two sides to everything. One child has one argument, and the other child has the other argument. The truth is listening to both sides and trying to figure out what the truth is. The court is no different. But in these courts, you are only hearing one side and only the government represents their case. The government says that we want all the phone records because they are relevant. No one stands up on the other side and says: I object. That is one of the reforms Senator Wyden and I have talked about, having somebody represent the accused, somebody to stand up and say maybe all the phone records in the country are not relevant, maybe they are not relevant to an investigation. It would be absurd to say every American's records would be relevant. Probably no one in America knows more about this subject than Senator Wyden, who I see has come to the floor. Senator Wyden knows more about this because he has been on the Intelligence Committee for several years. There are two tiers within Congress. There is a great deal of information that I have never been told. Even though I was elected to represent Kentucky, I am not allowed to know a lot of things that happen in the Intelligence Committee. The downside for Senator Wyden is he is allowed to know more but then he is not allowed to talk about it, which makes it a problem. It is hard to have dissent in our country. If I am not given information, how can I complain about it? And if the Senator from Oregon is given information, he is not allowed to complain about it. These are the things we struggle with in trying to find truth.

Mr. PAUL. I want to thank the Senator from Texas for joining in the battle to defend the Bill of Rights and the Fourth Amendment. I know he is sincere in that approach. There is absolutely no excuse, no excuse not to debate this and no excuse not to vote on a sufficient amount of amendments, to try to make this better, to try to make the bulk collection of records go away. That is what the American people want. It is what the Constitution demands. My voice is rapidly leaving. My bedtime has long since passed. I think it is time we summarize why we are here today and what my hope is for the future with this issue. We have had a dozen Senators come down from both parties, from right, left, conservative, liberal, progressive, and Libertarian. We have had several friends come over from the House as well. There is a hunger in America for somebody to stand up, for all of us to stand up, for somebody to do the right thing, to say that the Bill of Rights needs to be defended, that the Bill of Rights is important. When I think of the Bill of Rights, I think it is not so much for the popular person, it is not so much for the high school quarterback or the prom queen; the Bill of Rights is for the least among us and the Bill of Rights is to try to prevent any kind of systemic bias from entering into the law for the way we treat people. People say: Well, we collect all this data, but we are not abusing anyone. We are doing it perfectly in order. I agree with Senator Lee that just the collection of the data is the infringement in itself. The whole idea that we could put one name on a warrant and collect 100 million records goes against everything we believe in. It goes against everything we fought for in the Revolution when we fought to be left alone. I think Justice Brandeis put it best when he said that the right to be left alone is the most cherished of rights, the most prized among civilized men, to be left alone in our castle, or in today's world, to be left alone in our cloud--the time has long since passed where we are going to have paper records--and that is going to be our exact home or exact castle that we are protecting. The time is now in the digital age that we need to protect our privacy when we loan out our records, and it is different to loan out your records and allow them to be held by a telephone company or by an Internet provider or in the cloud. It doesn't mean you give up your right to privacy. I think you have an expectation of privacy with or without a contract, but often we have an explicit privacy agreement, an explicit privacy contract that we actually have with the phone company and Internet provider. They are supposed to protect our interests. It sends exactly the wrong signal to give liability protection to these companies and say to them that they can run roughshod with us and that they can give their information out. The bulk collection must end, and I think we have the votes to do it now. We need to end the bulk collection of records, but that is not where this battle ends. There is still a question as to whether the Executive is gathering a great deal of information through Executive order. I think that has to be reviewed, and it has to be reviewed in public. I agree with my friend Senator Wyden that the specifics of intelligence--who the agents are, how we break code, how we technologically gather information--by all means does not need to be discussed in public, but whether we should collect all Americans' phone records all the time should be discussed in public. It should have been revealed in an honest way. The fact that the Director of our National Intelligence lied to us and said the program didn't even exist I think is unforgivable and makes him unsuitable to lead our intelligence agency. We have to have trust. Because of this great and enormous power we allow our intelligence agencies to have, we have to have trust, and you cannot have trust when Congress is lied to. I think, as we move forward today, we have made great strides in presenting arguments in the debate for how we would make things better, how we would better circumscribe this great and ominous power, and how we would better make this power conducive to the Constitution. The ultimate success will be that we can actually change things, but part of the success will be that we have debated them today, and my hope is that the debate today will let the American public, as well as our leadership in the Senate, know that we are serious about this and that we want to vote on reforms and that we want to vote on several different ways we can fix this issue. If this issue comes up every 3 years, for goodness' sake, can't we spend a couple of days trying to amend this and make it better? I thank the Senate staff for coming in and staying. I don't think they had much choice in the matter, but I thank them for staying and not throwing things. We will try not to do this but every couple of years or so. I thank my staff for their help in a long day, and I thank the American people for considering the arguments and for helping us to hopefully push this toward the reform where we all respect the Fourth Amendment and the Bill of Rights once again. I thank the Presiding Officer, and I relinquish the floor. I suggest the absence of a quorum.

Mr. PAUL. I think the Senator from Utah asked a great question, and I think he framed the debate over the Fourth Amendment very well. I think if we asked to put the bill on the floor at this hour, we may not be able to find anybody awake to ask permission to have the bill this evening. We haven't been able to locate anyone to get the bill this evening, so I am afraid we will have to say no. But we have been asking for a full and open debate. Your solution, as well as mine, as well as Wyden's, as well as other's, is to have a full debate on the floor for this. There were a couple of things you said that I thought were particularly worth commenting on. People say that because there is no evidence that the program is being abused, there is no evidence that we are searching the records of certain people of certain race or religion or abusing people for some reason, that is proof somehow that no abuse is occurring. But I agree with you that the collection alone is an abuse in and of itself. To me, the basic point and the biggest part of the point is that what we are dealing with is something that is a generalized warrant. There is nothing specific about collecting all of the records from all Americans all of the time. There is nothing specific about the name ``Verizon.'' I tell people that I don't know anybody named Mr. Verizon. So that can't be a specific individualized warrant. That is a general warrant. That is what we fought the Revolution over--to individualize warrants, to individualize what we were requesting, and, above all, probable cause. We accepted a lower standard to go after foreigners, to go after terrorists. And part of me says that maybe we could do that just for terrorists. But now we are using it for domestic crime. One of the biggest things I would like to change is that nothing within the PATRIOT Act or any of this could be used to convict somebody in a domestic court. Section 213--sneak-and-peak--99.5 percent of the time is used for domestic drug crime now. We have the NSA sharing data that is supposed to be collected on foreigners with the domestic DEA and then making up another scenario where they might have heard about this. But they didn't really hear about this from the NSA. I think the public at large thinks we have gone way too far--way too far with the bulk collection records. It is not only what we have done, but it is just that there is absolutely--even in the PATRIOT Act, which I object to--no justification for collecting the records. The idea that records could be relevant to an investigation that has not yet occurred puts logic on its head, puts it topsy-turvy to where words don't mean anything. I am very concerned that there is a lot of surveillance that we don't know about, not only through the PATRIOT Act justification but through Executive order justification. It concerns me that there are still people who are arguing that article II gives unlimited authority to the President, that there is no congressional check and balance to the President with regard to surveillance. There are people making that argument--that there is no limitation to Presidential power. I think one of the best things our Founding Fathers gave us was this check and balance so we had coequal branches. I think it is a great thing with the Fourth Amendment that a warrant had to be signed by somebody who wasn't a policeman, who wasn't a soldier. This is one of the additional things I would like to do because we don't get to talk about this very much. We have the ability, and we are talking about the bulk collection of records, but we should also talk about whether we should have hundreds of thousands of warrants written by policemen, by FBI agents. I think warrants should have a check and balance where you have a judge. There is something that is so civilizing and something that levels the playing field and keeps abuse from happening when a policeman tonight in DC, in front of a house, who wants to go in, is calling someone who is not in hot pursuit and who hasn't just had a physical altercation with the people they are chasing--someone who is dispassionate and unconnected to the heat of the crime--who is going to give permission for this policeman to go into a house. We say that a man's house is his castle, and he can defend it. That was the whole idea--that things within the castle were the man's or woman's, we would say now. But it is not only that your records are in the castle anymore. They are in the cloud. And records are virtual. We have whole households that have no paper records. The amazing thing about records is they are now saying that with metadata records, they can discover more than we could have discovered in a lifetime of looking at your personal letters in your house, because so much information is there, so much can be connected between the dots between all of these things. I am still not convinced that we aren't collecting data on credit cards, on emails. I think some of this is done through the Executive order that most of us are not privy to. The only people that know anything about Executive Order 12333 and what they are doing on it are people on the Intelligence Committee. I am not convinced we aren't collecting email data. They currently say that your email--this is the bill you promoted-- after 6 months, your email has no protection. Before 6 months, I think the only protection is to the content, not to the header, not to the addressee. We currently have the opinion. We desperately need the Supreme Court to rule on this. We have the Smith v. Maryland decision, which was in the premodern age, as far as data goes and as far as your papers being held. We desperately need a decision. My hope was that the appellate court decision would go to the Supreme Court. But my understanding--being just a doctor--is it went the other way. It has been remanded lower and may never make it to the Supreme Court. I don't know that. But I think we do need something at the Supreme Court level. There have been many who are now arguing that the appellate court-- this again from a physician, not a lawyer--is really binding and that there could eventually be some legal injunction against what the government is doing. But for goodness sake, it perplexes me that the President says: Oh, yes, we need a balanced approach, and I am listening to my privacy commission. I am listening to the review board. Yet I created this out of whole cloth as an Executive order, and I am unwilling to stop it even though the appellate court has told me it is illegal. He is unwilling to stop it. I think that sort of defines disingenuous--that he is going to stop it as soon as Congress stops it. It is so hard to get anything done here. We have had vast majorities--not only for the USA Freedom Act but for Thomas Massey's act. We had a vast majority over there to defund it--for Justin Amash, for defunding things that we were doing--big majorities. It is another evidence that the Senate is further distanced from the people, that the House is closer. They are hearing the message stronger. I think the message is a strong one, and the message is that nobody-- I mean, really, the vast majority of Americans are very unhappy with having all of their records collected. That really to me gets back to the whole idea of whether we should accept or validate general warrants. It is still part of my concern, a little bit, with the reform. I want the reform--it could go a long way if we no longer have the ability to put the word ``corporate'' in there and if it were specifically individuals. And I think we have a chance to go maybe even a little further than we have gone in the reform that is being offered to say that we shouldn't be able to request all of the records from a corporation, because there is some retained privacy and there is some retained property interest even in your records. And I think there always has been. They talk about an expectation of privacy. I would think that if you have a contract, when you sign the agreement, you are agreeing to a privacy contract with an Internet provider or a search provider or a telephone company. I think that is indicating, as they talk about in the cases, an expectation of privacy. Well, I have signed an agreement with the company, and they promised me and I promised them. I would think that for certain is an expectation of privacy in the eyes of the court. (Mr. RUBIO assumed the Chair.) So I don't understand how they can argue we have completely given up our records, and that we have no ability at all to retain an interest in our records. I am very much convinced this is an important debate--that the Bill of Rights is something that we shouldn't look at lightly; that we should, as we move forward, make sure we do protect the things that are important. We shouldn't hurry up and have deadlines, and then say we are not going to have time to debate it. I see the Senator from Texas, who is also a defender of the Fourth Amendment, is here, and I would be happy to take a question without losing the floor.

Mr. PAUL. Thank you. I think the American public is ready to end bulk collection. I think there is a bipartisan, across-the-aisle approach that people want to end bulk collection. The time is now. We cannot keep extending this. I think probably the biggest deal is that the PATRIOT Act does not even justify this. This is a program that needs to end because even those who read the PATRIOT Act, even those who love the PATRIOT ACT, acknowledge that the PATRIOT Act does not even give permission for this. This is something we are doing that there is no permission for. It has to end. I think the American people will be very disappointed in us as a body if it does not end. This is the time to do it. I agree with the Senator. We are going to do everything we can to stop it. I see the Senator from Utah. Does the Senator from Utah have a question?

Mr. PAUL

Mr. PAUL. I ask for the yeas and nays.

Mr. PAUL

Mr. PAUL. Pursuant to section 904 of the Congressional Budget Act of 1974 and the waiver provisions of applicable budget resolutions, I move to waive all applicable sections of that act and applicable budget resolutions for purposes of my amendment, and I ask for the yeas and nays.

Mr. PAUL. Mr. President, national defense is the No. 1 priority of the Federal Government. My amendment increases defense spending, but pays for it with spending cuts. It is irresponsible and dangerous to continue to put America further into debt, even for something we need. We need national defense, but we should pay for it. America does not project power from bankruptcy court. We need a strong national defense, but we should be honest with the American people and pay for it.

Mr. PAUL

Mr. PAUL. Mr. President, I ask unanimous consent to set aside the pending amendment and call up my amendment No. 940.

Mr. PAUL. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. PAUL

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

Mr. PAUL. Mr. President, I ask unanimous consent that when the Senate resumes the motion to proceed to H.R. 240 following morning business today, that Senators be permitted to speak for up to 10 minutes each.

Mr. PAUL

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

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

Mr. PAUL

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

Mr. PAUL

Mr. PAUL. Madam President, if there is a theme that connects the dots in the Middle East, it is that chaos breeds terrorism. What much of the foreign policy elite fail to grasp, though, is that intervention to topple secular dictators has been the prime source of the chaos. From Hussein to Assad to Qadhafi, it is the same history--intervention to topple the secular dictator. Chaos ensues and radical jihads emerge. The pattern has been repeated time and time again. Yet what we have here is a failure to understand, a failure to reflect on the outcome of our involvement in Arab civil wars. They say nature abhors a vacuum. Radical jihadists have again and again filled the chaotic vacuum of the Middle East. Secular dictators, despots who, frankly, do terrorize their own people, are replaced by radical jihadists, who seek terror not only at home but abroad. Intervention, when both choices are bad, is a mistake. Intervention, when both sides are evil, is a mistake. Intervention that destabilizes the Middle East is a mistake. Yet here we are again, wading into a civil war. I warned a year ago that involving us in Syria's civil war was a mistake, that the inescapable irony is that some day the arms we supply would be used against us or Israel. That day is now. ISIS has grabbed up from the United States, from the Saudis, and from the Qataris weapons by the truckload. We are now forced to fight against our own weapons, and this body wants to throw more weapons into the mix. Even those of us who have been reluctant to get involved in Middle Eastern wars feel, now that American interests are threatened, that our consulate and our embassy are threatened. We feel that if ISIS is left to its own devices maybe they will fulfill what they have boasted of and attack our homeland. So, yes, we must now defend ourselves from these barbarous jihadists. But let's not compound the problem by arming feckless rebels in Syria who seem to be merely a pit stop for weapons that are really on their way to ISIS. Remember clearly that the President and his Republican allies have been clamoring for over a year for airstrikes against Assad. Assad was our enemy last year. This year he is our friend. Had all of those air strikes, though, occurred last year in Syria, today ISIS might be in Damascus. Realize that the unintended consequences of involving ourselves in these complicated, thousand-year-long civil wars lead to unintended consequences. Had we bombed Assad last year, ISIS would be more of a threat this year. ISIS may well be in Damascus had we bombed Assad last year. Had the hawks been successful last year, we would be facing a stronger ISIS, likely in charge of all Syria and most of Iraq. Intervention is not always the answer and often leads to unintended consequences. But some will argue no, no, it is not intervention that led to this chaos, we didn't have enough intervention. They say if we had only given the rebels more arms, ISIS wouldn't be as strong now. The only problem is the facts argue otherwise. We did give arms and assistance to the rebels through secret CIA operations, through our allies, through our erstwhile allies. We gave 600 tons--let me repeat that--we gave 600 tons of weapons to the Syrian rebels in 2013 alone. We gave 600 tons of weapons and they cry out and say we haven't done enough? Perhaps they are giving them to people who don't want to fight. Perhaps the fighters from ISIS are taking the weapons we give to the so-called moderate rebels. It is a mistake to send more arms to the Syrians. According to the U.N. records, Turkey alone, in the space of a 4- month period, sent 47 tons in addition to the 600 tons of weapons. They sent 29 tons in 1 month. But there are rumors that the Turks are not quite that discriminating, that many of these weapons either went directly or indirectly to the very radical jihadists who are now threatening us. If you want to know are there any weapons over there, are there enough weapons, is it a lack of weapons that causes the moderate Syrian rebels to be not very good at fighting, well, there are videos online of the Free Syrian Army, the army our government wants to give more arms to. We see them with Mi-8 helicopters, we see them with shoulder-launched missiles, and yet we see them lose battle after battle. We see American-made TOW anti-tank weapons in the hands of Harakat al-Hazm, a so-called moderate group. The Wall Street Journal reported that Saudi Arabia has been providing weapons such as this to the rebels. It also detailed millions of dollars in direct U.S. aid to the rebels. We have not been sitting around doing nothing. Six hundred tons of weapons have already been given to the Syrian rebels. What happened during the period of time we gave 600 tons of weapons to the moderate rebels in Syria? ISIS grew stronger. They say the definition of insanity is doing the same thing over and over, expecting a different result. We gave 600 tons of weapons to the rebels and they got weaker and weaker and ISIS grew stronger. Perhaps by throwing all of these weapons into the civil war, we actually degraded Assad's ability to counter them. So perhaps Assad might well have taken care of the radical jihadists and he can't because of the weapons. Perhaps we have created a safe haven. The other night the President said in his speech that it will be a policy of his administration to leave no safe haven for anyone who threatens America. It sounds good, except for the past 3 years we have been creating a safe haven for ISIS. ISIS has grown stronger because we have been arming the resistance that ISIS is part of. A New York Times article reports that Qatar has used a shadowy arms network to move shoulder-fired missiles to the rebels. According to Gulf News, Saudi Arabia has also partnered with Pakistan to provide a Pakistan version of a Chinese shoulder-launched missile. It doesn't sound like a dearth of weapons, it sounds like an abundance of weapons. Iraqi officials have accused Saudi Arabia and Qatar of also funding and arming ISIS at the same time. Kuwaitis--a Sunni majority country bordering Iraq--have funneled hundreds of millions of dollars to a wide range of opposition forces throughout Iraq and Syria, according to the Brookings Institute. According to the New York Times, over 1 year ago the CIA began training Syrian rebels in nearby Jordan, thousands of them, delivering arms and ammunition. Over this period of time, what has happened? ISIS has grown stronger. Perhaps sending more weapons into the Syrian civil war is not working. The New York Times also reports huge arms and financial transfers from Qatar to the Syrian rebels beginning as early as 3 years ago. No one really knows where this is all going to end, where are these arms going to wind up. Jane's Terrorism and Insurgency Center noted that the transfer of Qatari weapons to targeted troops has the same practical effect of transferring the weapons to al-Nusra, a violent jihadist group. Let me repeat. Jane's defense analysts say that if you give the weapons to moderate--the so-called moderate rebels--it is the same as giving it to al-Nusra. The New York Times further detailed that even Sudan has been sending anti-tank missiles and other arms to Syria. It is hard to argue there are not enough weapons floating around over there. So the idea that these rebels haven't been armed is ludicrous. It is also ludicrous to believe that we know where all the money and all the arms and all the ammunition will wind up or who will benefit from these arms. Why? Because we don't even know who these groups are, even if we think we do. The loyalty shifts on a daily basis. The groups have become amorphous with alleged moderates lining up side-by-side with jihadists, not to mention that, guess what, some of these people don't tell the truth. Finally, moderates have been now found to sell their weapons. In fact, there are accusations by the family of Steve Sotloff--who was recently killed by the barbarians--that he was sold by the moderate rebels to the jihadists. The Carnegie Endowment says there are no neat, clean, secular rebel groups. They don't exist. They reiterate that this is a very dirty war with no clear good guys on either side. The German Ambassador to the United States has acknowledged this. The Germans are arming the Kurds. They are not sending anything into Syria. It is a mess, and they are concerned that the weapons they send into Syria will wind up in the wrong hands. Many former officials are very forthright with their criticism. According to the former ambassador to Iraq and Syria, our ambassador says: We need to do everything we can to figure out who the non-ISIS opposition is because, frankly, we don't have a clue. Think about this. We are voting or obscuring a vote in a spending bill to send $500 million worth of arms to Syria, to people who we say are the vetted moderate Syrian rebels. Guess what. One of the men with the most knowledge on the ground, who has been our ambassador to Syria, says we don't have a clue who the moderates are and who the jihadists are. And even if they tell you they are the moderates, they say: Oh, we love Thomas Jefferson. Give us a shoulder-fired missile. We love Thomas Jefferson. Can you trust these people? The rebels are all over the map. There are said to be 1,500 groups. It is chaos over there. We will be sending arms into chaos. The largest coalition is the Free Syrian Army. I say largest coalition--really, all the Islamic fronts, al-Nusra, ISIS, Al Qaeda are all much bigger than the Free Syrian Army--but the biggest group that we give to is the Free Syrian Army, which currently has three different people who claim to lead the Free Syrian Army. We don't even know who is in charge of the Free Syrian Army. They voted out one guy, in another guy, and he didn't even know they were voting. There are estimates that half of the Free Syrian Army has defected, many to al-Nusra, Al Qaeda, and to ISIS. These are the people your representatives are going to vote to send arms to. Half of them have defected. Half of them are now fighting with the jihadists. We have proven time and again that we don't know how to vet these leaders. Two groups that were initially provided U.S. aid and help last year are good examples. A top official of Ahrar al-Sham, one of the largest rebel groups at the time, announced publicly that he now considers himself to be allied with Al Qaeda. Just yesterday, our most recent ambassador to Syria, Robert Ford, said the moderate forces have and will tactically ally with Al Qaeda, with Al Qaeda-linked al-Nusra. Listen carefully. Your representatives are sending $500 billion to people who will tactically ally with Al Qaeda. I asked Secretary Kerry: Where do you get the authority to wage this war? He says: From 2001. Some of the people fighting weren't born in 2001. Many of the people who voted in 2001 are no longer living. We voted to go to war in Afghanistan--and I supported going into that war because we were attacked and we had to do something about it. But the thing is, that vote had nothing to do with this--absolutely nothing to do with this. You are a dishonest person if you say otherwise. That sounds pretty mean-spirited. Hear it again. You are intellectually dishonest if you argue that something passed in 2001, to deal with the people who attacked us in 9/11, has anything to do with sending arms into Syria. It is intellectually dishonest--and to say otherwise, you are an intellectually dishonest person. I said it yesterday: Mr. President, what you are doing is illegal and unconstitutional. The response from Secretary Kerry was: We have article II authority to do whatever we want. It is absolutely incorrect. We give power to the Commander in Chief to execute the war, but we were explicit that the wars were to be initiated by Congress. There was debate over this. There were reports of Thomas Jefferson's opinion about how this was the legislative function. There were letters in the Federalist Papers from Madison talking how they precisely took this power from the Executive and gave it to the legislative body. We hear: Oh, we will do something in December. What happens between now and December? An election. The people of this body are petrified, not of ISIS, but of the American voter. They are afraid to come forward and vote on war now. We should have a full-throated discussion of going to war, but we shouldn't put it off until December. Secretary Kerry was asked: Will there be Sunni allies in this war on the ground, fighting to overturn ISIS? The ones, precisely--maybe who may have been funding it, which is Saudi Arabia--who should be the first troops in line, receiving the first volley, should not be U.S. GIs, they should be Saudi Arabians, Qataris, Kuwaitis, and Iraqis--but they should not be Americans. According to the Washington Free Beacon, some of the people we have been supplying and some of the people we continue to supply arms to aren't so excited about Israel. Surprise. One of them remarked: Their goal is to topple Assad, but when they are done with Assad, their goal is to return all Syrian land occupied by Israel. Mark my words. I said the great irony here would be that someday our dollars and our weapons would be used against us and Israel. They will. We will be fighting--if we get over there with troops on the ground-- against arms that we supplied to feckless rebels, that were immediately snatched and taken by ISIS. We will be fighting our own weapons. Mark my own words, if these people get a chance, they will attack Israel next. These are among the many problems I have in arming the Syrian opposition. Who are we really arming? What would be the result? Where will the arms end? There are too many here who believe the answers to these questions when all indicators are otherwise--or maybe even when it is unknowable--they continue to believe something that frankly is not provable and not true. I am a skeptic of this administration's policies, but this is a bipartisan problem. This is not a Republican or a Democratic problem, this is a bipartisan problem. I do share the administration's belief that the radical jihadists in this region are a threat to America, but they need to think through how we got here. Radical jihad has run amok in the Middle East because intervention has toppled secular dictators. There weren't radical jihadists doing much of anything in Libya until Gadhafi was gone. He kept them in check. Was Gadhafi a great humanitarian? No. He was an awful despot. But his terror was on his own people, not the United States. The people in charge--if we can say anybody is in charge in Libya-- their terror is to be exported. Some of them are fighting in Syria. Where I differ with this administration is whether to arm the same side as the jihadists. We will be in a war on the same side as the jihadists. They said: Oh, no. We can make it a three-way war. War is very confusing, but imagine: We will be in the middle of a three-way war where many analysts say when you are in the trenches with the so-called moderates that our money is going to buy arms for--when they are in the trenches, they are side by side with al-Nusra; they are side by side with Al Qaeda. Do we want our money and arms being sent to support troops that are fighting alongside Al Qaeda? Here is the great irony. The use of force resolution they predicate this whole thing upon from 2001 says that we can fight terrorism. They have interpreted that to be Al Qaeda and associated forces. Guess what. The moderate rebels are fighting with Al Qaeda. We could use the 2001 use of force authorization, as Secretary Kerry understands it, to attack the same people we are giving the weapons to. Think about the insanity of it. We are giving weapons to people fighting in trenches with Al Qaeda. If we interpret the use of force resolution as Secretary Kerry does, under that formulation we could attack the very people we are giving the weapons to. It is absurd. We shouldn't be fighting alongside jihadists. This administration and its allies have really been on both sides of this civil war. It is messy; it is unclear. There are bad people on both sides. We need to stay the heck out of their civil war. I have opposed them for reasons that I think are becoming clear and I think the American people will understand. It is not that I am against all intervention. I do see ISIS as a problem. ISIS is now a threat to us. But I see our previous policy as having made it worse. I supported the decision to go into Afghanistan after 9/11. There are valid reasons for war, but they should be few and far between. They should be very importantly debated and not shuffled into a 2,000-page bill and shoved under the rug. When we go to war, it is the most important vote any Senator will ever take. Many on the other side have been better on this issue. When there was a Republican in office, there were loud voices on the other side. I see an empty Chamber. There will be no voices against war because this is a Democratic President's war. The hypocrisy of that should resound in this nearly empty Chamber. Where are the voices on the other side who were so hard on George Bush who, by the way, actually did come to Congress? And we voted on an authorization of force. Agree or disagree, but we did the right thing. But now we are going to fight the war for 3 or 4 months, see how it is going, see how the election goes, and then we are going to come back and maybe we will talk about the use of authorization of force, maybe we will have amendments. Colin Powell wrote in his autobiography: War should be the politics of last resort. And when we go to war, we should have a purpose that our people understand and support. I think that is well thought out. I think he had it right. America should only go to war to win. We shouldn't go to war sort of meandering our way through a spending bill. War should only occur when America is attacked, when it is threatened or when our American interests are threatened or attacked. I spent about a year--and I will probably spend a couple more years-- trying to explain to the American people why Secretary Clinton made terrible decisions in Benghazi not defending the consulate--not the night of, not the day after, not the talking points--the 6 months in advance when security was requested. This is one of the reasons it persuades me that, as reluctant as I am to be involved in Middle Eastern wars, we have to do something about it. We either have to leave Iraq or we have to protect our embassy and protect our consulate. I think there are valid reasons for being involved, and I think we are doing the right thing but just in the wrong way. If we want to have less partisan sniping about war, if we want to unify the country, think back to December 8, 1941. FDR came before a joint session of Congress and he said, this day ``which will live in infamy,'' and he united the country. People who had previously been opposed to war came forward and said: We can't stand this attack. We will respond. We will be at war with Japan. He didn't wait around for months. He didn't wait and say: Let's wait until the midterm elections, and then we will come back maybe in a lame-duck--if there is a lame-duck--and maybe we will discuss whether the Japanese should be responded to. War is a serious business, but we make it less serious by making it political, hiding and tucking war around. By tucking war away into a spending bill we make it less serious. We don't unify the public. Then, as ISIS grows stronger or they are not quelled by sending arms to feckless allies in Syria, what happens? Then they come back again and again. There is already the drumbeat. There are already those in both parties who insist that we must have American GIs on the ground. I am not sending American soldiers--I am not sending your son, your daughter or mine--over to the middle of that chaos. The people who live there need to stand up and fight. The Kurds are fighting. They seem to be the only people who are really capable of or willing to fight for their homeland. The Iraqis need to step up and fight. It is their country. If they are not going to fight for it, I don't think we need to be in the middle of their fight. Am I willing to provide air support? Am I willing to provide intelligence and drones and everything we can to help them? Yes. We have been helping them for 10 years. We have a lot invested. So I am not for giving up, but it is their war and they need to fight. And I expect the Saudis to fight, and the Qataris and the Kuwaitis. Even our own State Department says there is no military solution here that is good for the Syrian people and that the best path forward is a political solution. Is someone going to ultimately surrender? Is one side going to wipe out the other? Part of the solution here is that civilized Islam needs to crush radical Islam. Civilized Islam needs to say to radical Islam: This does not represent our religion. The beheading of civilians, the rape and killing of women does not represent Islam. The voices aren't loud enough. I want to see civilized Islam on the front page of the newspaper and international TV saying what they will do to wipe out radical Islam. I want to see them on the frontlines fighting. I don't want to see them sipping tea or in the discotheque in Cairo. I want to see them on the frontlines fighting a war to show the Americans and to show the world that there is a form of civilized Islam that doesn't believe in this barbarity. The United States should not fight a war to save face. I won't vote to send our young men and women to sacrifice life and limb for a stalemate. I won't vote to send our Nation's best and brightest to fight for anything less than victory. When American interests are at stake, it is incumbent upon those advocating for military action to convince Congress and the American people of that threat. Too often the debate begins and ends with a conclusion. They say: Well, our national interest is at stake. That is the conclusion. The debate is: Is the national interest at stake? Is what we are going to do going to work? I would think we would debate for days and this Chamber would be full. Before I came here, I imagined that when war was discussed, everybody would be at their desk and there would be a discussion for hours on end on whether we would go to war. Now it seems to be some sort of geopolitical chess game or checkers: Let's throw some money. What is $500 million? Which is yet another problem around here. But when we go to war, the burden of proof lies with those who wish to engage in war. They must convince the American people and convince Congress. Instead of being on television, the President should have been before a joint session of Congress--and I would have voted to authorize force. But it needs to be done according to the Constitution. Not only is it constitutional, but there is a pragmatic or a practical reason why the President should have come to us. It galvanizes people, it brings people together. Both sides vote for the war, and it is a war of the American people--not a war of one man. Until there is a vote--if there ever is one--this is one man's war. Our Founding Fathers would be offended, would be appalled to know that one man can create a war. We were very fearful of that. We came from Europe with constant war, where brothers fought cousins and fathers fought sons, where everybody was related and they fought continuously. We didn't want a king. We wanted the people, through the Congress, to determine when we went to war. This President was largely elected on that concept. I didn't vote for the President, but I did admire, when he ran first for office that he said no President should unilaterally take a country to war without the authority of Congress. That is what President Obama said. He was running against the wars of the previous administration. People voted for him for that very reason, but he became part of the problem. He now does everything that he criticized. It is what the American people despise about politics. When they say we have a 10-percent approval rating--Republicans or Democrats--it is because of this hypocrisy, because we don't obey the law, because we don't engage in important debate, and because we stuff war and shuffle war into a spending bill. Bashar al-Assad is clearly not an American ally. He is an evil dictator. But the question is: Will his ouster encourage stability or will it make the Middle East less stable? With his ouster, will that mean ISIS replaces him? What are the odds that the moderate rebels, who have lost every battle they have ever engaged in, will be the rulers in Damascus? If we succeed in degrading Assad where someone can get to him, we will have ISIS. We will have ISIS in charge of Syria. It will be worse. We have to ask: Are these Islamic rebels our allies? I am reminded of the story of Sarkis Al-Zajim. He lived in a city called Maaloula, Syria. They speak Aramaic there. It is one of the few remaining villages in the Middle East where they speak the language that Jesus spoke. As the marauding Islamic rebels came into town on the same side of the war--who knows who funded them or where they got the arms--but when the Islamic rebels came and marauded into town, Sarkis Al-Zajim stood up. He is a Christian. He lives and sides with Assad. Most of the Christians side with Assad. So Sarkis Al-Zajim lives in Maaloula, speaks Aramaic, stands up, and says: ``I am a Christian, and if you must kill me for this, I do not object to it!'' And these were his last words. I don't know who these rebels were, but they are fighting on the same side that we are arming and we don't know who they are. Our former Ambassador to Iraq and Syria says we have no clue who the non-ISIS rebels are. So for all we know, the rebels that killed Sarkis Al-Zajim could well be part of the so-called vetted opposition. When they win, will they defend American interests? Will they recognize Israel? If we want to have a good question, why don't we ask the vetted moderate Syrians how many will recognize Israel. I am guessing it is going to be a big goose egg. There is not one of those jihadists--there is not one of those so-called moderate rebels that will recognize Israel. And if they win, they will attack Israel next. Several of the leaders have already said they would. Will they acknowledge Israel's right to exist? Will they impose Sharia law? Sharia law has the death penalty for interfaith marriage, death penalty for conversion--apostasy--and death penalty for blasphemy. In Pakistan right now--a country that billions of our dollars flow to, that the vast majority of the Senate loves and will send billions more of our dollars to if they can get it from us--in Pakistan, Asia Bibi sits on death row. She is a Christian. Do you know what her crime was? They say blasphemy. She went to drink from a well and the well was owned by Muslims. As she was drawing water from the well they began hurling insults. Then they began hurling stones. They were stoning her and beating her to death with sticks. The police came, and she said, thank God. They arrested her and put her in jail because the Muslims said that she was saying something about their religion. Heresy is life in prison, death. These are the countries we are sending money to. The other side up here will argue: Well, we are only sending it to the moderates in Pakistan; otherwise, the radicals will take over. Well, the moderates are the ones with Asia Bibi on death row. I wouldn't send a penny to these people. Why would we send money to people who hate us? Maybe we should just have a rule: No money to countries that hate us. Will these rebels, whom we are going to vote to give money to, tolerate Christians or will they pillage and destroy ancient villages such as Sarkis Al-Zajim's church and village? The President and his administration haven't provided good answers because they don't exist. As the former Ambassador said: They don't have a clue. Shooting first and aiming later has not worked for us in the past. The recent history of the Middle East has not been a good one. Our previous decisions have given results that should cause us to be quite wary of trying to do the same again. I would like President Obama to reread the speeches of Candidate Obama. There is a great disagreement between the two, and Candidate Obama really seemed to be someone who was going to protect the right of Congress to declare war, but it hasn't been so. Our Founding Fathers understood that the executive branch was the branch most prone to war, and so with due deliberation our Founding Fathers took the power to declare war and they gave it to Congress exclusively. President Obama's new position as President, which differs from his position as candidate, is that he is fine to get some input when it is convenient for us--maybe after the election--but he is not really interested enough to say that it would bind him or that he would say we need attacks now and come to us tomorrow and ask for permission. He thinks ``maybe whenever it is convenient and you guys get around to it.'' Secretary Kerry stated explicitly that his understanding of the Constitution is that no congressional authorization is necessary. I say, why even bother coming back in December? They kind of like it. They like the show of it. They understand it might have some practical benefit. But it is theater and show. If you are going to commit war without permission, it is theater and show to ask for permission. The President said basically article II grants him the power to do whatever he wants. If so, why have a Congress? Why don't we just recess the whole thing? Oh, that is right, that is what we are getting ready to do. It is election season. The President and his administration view this vote just as a courtesy but not as a requirement. Even if Congress votes against it, he said he would do it anyway. He already has authority; why would it stop him? Article I, section 8, clause 11 gives Congress and Congress alone the power to declare war. If Congress does not approve this military action, the President must abide by the decision. But it worries me. This President worries me, and it is not because of ObamaCare or Dodd-Frank or these horrific pieces of legislation. As I travel around the country, when people ask me ``What has the President done? What is the worst thing he has done?'' it is the usurpation of power, the idea that there is no separation of powers or that he is above that separation. If you want to tremble and worry about the future of our Republic, listen to the President when he says: Well, Congress won't act; therefore, I must. Think about the implications of that. Democracy is messy. It is hard to get everybody to agree to something. But the interesting thing is that had he asked, had he come forward and done the honorable thing, we would have approved--I would have approved an authorization of force. It would have been overwhelming had he done the right thing, but he didn't come forward and ask. He didn't come forward and ask when he amended the Affordable Care Act. He didn't come forward and ask when he amended immigration law. And he is not coming forward to ask on the most important decision we face in our country; that is, a decision to go to war. Our Founders understood this and debated this. This is not a new debate. Thomas Jefferson said the Constitution gave ``one effectual check to the dog of war by transferring the power to declare war from the Executive to the Legislative body.'' Madison wrote even more clearly: The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature. There was no debate. Our Founding Fathers were unanimous. This was our power. To do it when it is convenient after the election is to abdicate our responsibility and is to make a serious discussion a travesty. There is no debate more significant than this, and we are going to stuff it in a bill. We are going to stuff it in a 2,000-page bill and not talk about it, not vote on it individually. Our leaders must be held accountable. If we don't, there will be no end to the war. The ridiculous and the absurd must be laid to rest. We have all heard it before. Toppling Qadhafi led to a jihadist wonderland in Libya. Toppling Hussein led to chaos in Iraq with which we are still involved. Toppling Assad will lead to more chaos and greater danger to America from the jihadists. The moss-covered, too-long-in-Washington crowd cannot help themselves: War, war, what we need is more war. But they never pay attention to the results of the last war. Their policies and the combination of feckless disinterest, fraudulent redlines, and selective combativeness have led us to this point. Yes, we must confront ISIS, in part for penance for the President's role in their rise. But while we do so to protect our interests here and abroad, what we need is someone to shout: War, war, what are we fighting for? Amidst the interventionists' disjointed and frankly incoherent rhetoric, amidst the gathering gloom that sees enemies behind every friend and friends behind every enemy, the only consistent theme is war. These barnacled enablers have never met a war they didn't like. They beat their chests in rhythmic ode to failed policies. Their drums beat to policies that display their outrage but fail to find a cure. Unintended consequences drown and smother the possibility of good intentions. Must we act to check and destroy ISIS? Yes--and again yes--because of the foolishness of the interventionists. But let's not mistake what we must do. We shouldn't give a free pass to forever intervene in the civil wars of the Middle East. Intervention created this chaos. Intervention aided and abetted the rise of radical Islam. Intervention has made us less safe in Libya and in Syria and in Iraq. To those who wish unlimited intervention and boots on the ground everywhere, remember the smiling poses of politicians pontificating about so-called freedom fighters and heroes in Libya, in Syria, and in Iraq, unaware that the so-called freedom fighters may well have been allied with kidnapers and killers and jihadists. Are these so-called moderate Islamic rebels in Syria friends or foes? Do we know who they really are? As the interventionists clamor for boots on the ground, we should remember that they were wrong about Iraq, they were wrong about Libya, and they were wrong about Syria. When will we quit listening to the advocates who have been wrong about every foreign policy position of the last two decades? When does a track record of being consistently wrong stop you from being a so-called expert when the next crisis comes up? We should remember that they were wrong, that there were no WMDs, that Hussein, Qadhafi, and Assad were not a threat to us. It doesn't make them good, but they were not a threat to us. We should remember that radical Islam now roams the countryside in Libya and in Syria and in Iraq. We should remember that those who believe war is the answer for every problem are wrong. We should remember that the war against Hussein, the war against Qadhafi, and the war against Assad have all led to chaos. That intervention enhanced the rise of radical Islam and ultimately led to more danger for Americans. Before we arm the so-called moderate Muslims in Syria, remember what I said a year ago: The ultimate irony you will not be able to overcome is that someday these weapons will be used to fight against Americans. If we are forced onto the ground, we will be fighting against those same weapons that I voted not to send a year ago. We will fight ISIS, a war that I accept as necessary largely because our own arms and the arms of our allies--Saudi Arabia, Kuwait, Qatar-- have enabled our new enemy ISIS. Will we ever learn? President Obama now wishes to bomb ISIS and arm the Islamic rebels' allies at the same time. We are on both sides of a civil war. The emperor has no clothes. Let's just admit it. The truth is sometimes painful. We must protect ourselves from radical Islam, but we should never ever have armed radical Islam, and we should not continue to arm radical Islam. To those who will say, ``Oh, we are just giving to the moderates, not to the radicals,'' it is going and stopping temporarily with the moderates and then on to ISIS. That is what has been going on for a year. Somehow they predict that something different will occur. We have enabled the enemy we must now confront. Sending arms to so-called moderate Islamic rebels in Syria is a fool's errand and will only make ISIS stronger. ISIS grew as the United States and her allies were arming the opposition. So, as we have sent 600 tons of weapons, ISIS has grown stronger. You are going to tell me that 600 tons of more weapons will defeat ISIS? The barnacled purveyors of war should admit their mistakes and not compound them. ISIS is now a threat. Let's get on with destroying them. But make no mistake--arming Islamic rebels in Syria will only make it harder to destroy ISIS. Thank you. I yield back my time.

Mr. PAUL. Madam President, we have before us one of the most important duties of the Senate and the Congress; that is, to decide whether we will be involved in war. I think it is inexcusable that the debate over whether we involve the country in war--another country's civil war--that this would be debated as part of a spending bill and not as part of an independent free-standing bill. It was debated as a free-standing bill yesterday in the House. There was a free-standing amendment. It takes 15 extra minutes. One might wonder why the Senate--the most deliberative body of the world--does not have 15 minutes to debate separately a question of war. It will be thrown into an amendment or a bill over spending. Instead of having a debate over war, we will have a debate over spending. I think this is a sad day for the Senate. It goes against our history. It goes against the history of the country. Therefore, I have asked that the amendment that I will set before the Senate will separate the votes so we will have a debate over war and then we will have a debate over spending. I have an amendment at the desk that would cue up the two separate votes on this legislation and allow the Senate to vote on the inclusion of the Syria language as a separate question. I ask unanimous consent that it be in order for me to call up my amendment No. 3856.

Mr. PAUL

Mr. PAUL. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. PAUL

Mr. PAUL. Madam President, I rise to say that I think it is abhorrent and I think most American people would be greatly distressed to know that some of their money could be sent to terrorist organizations, that some of their money could be sent to Hamas. Hamas has now joined a unity government with the Palestinian Authority. We give several hundred million dollars a year to the Palestinian Authority. I am appalled to think we could be somehow indirectly paying for missiles that Hamas is launching on Israel. I support the resolution that will shortly come forward condemning Hamas's activities. I want more teeth in this. I would like to see legislation that says: You know what. If Hamas wants to come out of the cold, they want to recognize Israel and renounce terror, maybe. But if they are going to continue to say, as one of their leaders said recently, that our path is resistance and a rifle, our choice is jihad, if Hamas is going to continue to laugh and to cheer with glee with the killing of three teenage Israeli citizens, one of whom was an American citizen, Hamas should not--and we should guarantee that Hamas should not--get any of our money. So I will ask for unanimous consent to pass a bill to guarantee that Hamas will not receive any of our foreign aid. I ask unanimous consent that the Committee on Foreign Relations be discharged from further consideration of S. 2265 and that the Senate proceed to its immediate consideration. I further ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be made and laid upon the table.

Mr. PAUL

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

Mr. PAUL

Mr. PAUL. Mr. President, I don't believe that foreign aid should go to countries that persecute Christians. I also don't believe that foreign aid should go to countries that host terrorists within their government. I have had this belief for some time, but I have met with a great deal of resistance in the Senate. Last week, in the Senate Foreign Relations Committee, I introduced an amendment which said that any country that persecutes Christians by law--Pakistan has a Christian woman named Asia Bibi; she is on death row for the crime, some say, of blasphemy. Others say she never said a word. She is really on death row for being a Christian. She has been there for 5 years. I say Pakistan shouldn't get any American money and that no taxpayer money should go to countries that are persecuting Christians. In the Sudan, another country that receives money from the American taxpayer, Meriam Ibrahim is on death row for the crime of changing religion. She married a man who is a Christian. She is now being detained. She tried to escape recently. She was redetained. The only thing that is consistent about foreign aid is that it continues to flow, regardless of restriction, regardless of window dressing to say, Oh, if a country does this, we will take it back. It never happens. Our foreign aid, our hard-earned American tax dollars continue to flow to these countries, no matter what their behavior is. So two weeks ago I came to the floor and I said, in Israel Hamas is now joining with the Palestinian Authority. Hamas is a terrorist group that does not recognize Israel and attacks Israel on a routine basis. Now that they will be part of a unity government, they will be receiving foreign aid from America. So I said, for goodness sakes, would we not want restrictions on this aid? Would we not want to say that our money shouldn't flow to Hamas? They should have to recognize Israel's right to exist. They should have to renounce violence. On a daily basis they lob missiles from Gaza into Israel. Yet in the Foreign Relations Committee only one other Member had the guts to vote against this foreign aid, because foreign aid is so entrenched in our national psyche that it goes on regardless of the behavior. Now, some will say: There are rules. If Hamas becomes a big part of this government, they won't get any money. Guess what. Hamas can read. They have read our legislation. They are purposely setting up their unity government to evade our restrictions. There are already people who say the President has a waiver. So in my legislation, the Stand With Israel Act, we would get rid of the Presidential waiver and say that if Hamas joins a government with the Palestinian Authority, they should get no American taxpayer money. I said this two weeks ago. The Democrats said: No, President Obama doesn't want to give up the authority to continue sending money to these countries. A week ago we had another disaster. In Israel three young teenagers were killed: Gilad Shaar, Eyal Yifrah, and Naftali Fraenkel, who was also an American citizen as well--killed in cold blood. Do you know what the response of Hamas was? To stand up and cheer. In fact, I can give you the direct response of Hamas. Khaled Meshal, their political director, said: ``Blessed be the hands that capture them.'' They stood with glee and cheered when these three teenage boys were killed in cold blood. These were not soldiers, these were civilians. The news reports are that Hamas has joined this unity government precisely because they are bankrupt. They want to get our money. That is why they are joining the unity government. What is ours? Ours is the tepid ``oh, please don't behave that way.'' But we have no teeth. The same thing has happened in Egypt, the same thing in Pakistan, country after country. The only consistent is the money never stops and the behavior never changes. Some will argue that foreign aid is a way to project American power. Well, if it is, we ought to be projecting American values. We should project what America stands for. We should not be saying: Here is some money. Do with it what you will. So this has real teeth. This act is called the Stand with Israel Act. It says: No money to terrorists, no money to Hamas unless they are willing to give up the war and begin to find peaceful means of coexisting. So this evening I ask unanimous consent that the Committee on Foreign Relations be discharged from further consideration of S. 2265 and the Senate proceed to its immediate consideration. I further ask consent that the bill be read a third time and passed, the motion to reconsider be considered made and laid upon the table.