Ron Wyden

Mr. WYDEN

Mr. WYDEN. Yes, of course.

Mr. WYDEN. Mr. President, just to respond to the points made by the distinguished chair of the committee--and, by the way, I think the chair's reference to being willing in the next intelligence authorization bill to work with those of us--and Senator Merkley has made good points this afternoon to try to include language in the next intelligence authorization bill to deal with secret law--I think that would be very constructive. I appreciate the chair making that suggestion. Colleagues may know that under the leadership of the chair of the committee and the distinguished Senator from Georgia, the vice chair of the committee, Mr. Chambliss, we were able, late last week, to work out the disagreements with respect to the intelligence authorization bill this year. I wish to thank the chair for those efforts. I think we have a good bill. I think all of us are against leaks. That is what was at issue. I think we have now dealt with the issue in a fashion so as to protect the first amendment and the public's right to know, and I appreciate the chair working with this Senator on it. I think we have a good intelligence authorization bill now for this year. I think the chair's suggestion that we look at dealing with this issue of secret law--in addition, I hope, to adopting the Merkley amendment--that we deal with it in the next intelligence authorization bill is constructive. I do want to respond to one point on the merits with respect to comments made by the distinguished chair on this issue. The distinguished chair of the committee essentially said the law is public because the text of the statute is public. That is true. That is not in dispute. It is true that the text of the law is public. But the secret interpretations of that law and the fourth amendment from the FISA Court are not public. The administration pledged 3 years ago to do something about that. They pledged it in writing in various kinds of communications, and that still has not been done. That is why this is an important issue with respect to transparency and accountability. The distinguished chair of the committee is absolutely correct that the law is public. The text of the law is public. Nobody disputes that. But the secret interpretations of the law and the fourth amendment--the interpretations of the FISA Court are not public, and we have received pledges now for years that this would change. I remember--perhaps before the distinguished chair of the committee was in the Chamber--talking about how Senator Rockefeller and I got a letter indicating that this was going to be changed and that we were very hopeful we were going to again get more information with respect to legal interpretations, matters that ought to be public that do not threaten sources and methods and operations. We still have not gotten that. That is the reason why Senator Merkley's work is so important. I see my friend and colleague. I say to Senator Merkley, the distinguished chair of the committee has made the point--I think while the Senator had to be out of the Chamber--that the law is public because the text of it is public. But what the Senator has so eloquently described as being our concern is that the opinions of the FISA Court--their opinions and views about the fourth amendment--are what has been secret, and the administration has said for years now they would do something about it. So the Senator's amendment seeks to give this the strongest possible push. I think that is why the Senator's amendment is so important. The Senator is obviously making a lot of headway because the distinguished chair of the committee has also said this issue of secret law is something that can be addressed as well in the intelligence authorization bill. If we can adopt the Senator's amendment and then move on to the intelligence authorization bill, that will be a very constructive way to proceed, very much in the public interest. The Senator is obviously making headway.

Mr. WYDEN. I thank my friend. Just one last point with respect to this technology conference where so many people walked away and thought their privacy was being protected by strong legal protections. General Alexander made additional confusing remarks that were in response to that same question with respect to the protections of law-abiding people. General Alexander said, `` . . . the story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.'' Now, I have indicated this morning as well, having served on the Intelligence Committee for a long time, I do not have the faintest idea of what anybody is talking about with respect to a dossier. So Senator Udall and I followed that up as well. We asked the Director to clarify that statement. We asked, ``Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?'' So that, too, is a pretty straightforward question. The question Senators have been asking about this are not very complicated. If you are asking whether the National Security Agency is addressing these privacy issues, I think it is one of the most basic questions you can ask. Does the National Security Agency collect any type of data at all on millions or hundreds of millions of Americans? If the Agency saw fit, they could simply answer that with a yes or no. Instead, the Director of the Agency replied that while he appreciated our desire to have responses to those questions on the public record, there would not be a public response forthcoming. So to go over the exchange again, the Director of National Security Agency states that `` . . . the story that we have millions or hundreds of millions of dossiers on people is absolutely false.'' Senator Udall and I then asked: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans? The Agency is unwilling to answer the question. So that is what this debate is all about, is reforming the FISA Amendments Act and, in particular, getting enough information so that it is possible for the Senate to say to our constituents: We are doing oversight over this program. I think right now, based on what we have outlined over the last 3 or more hours, it is clear that on so many of the central questions--the gap, for example, between the secret interpretation of the law and the public interpretation of the law, our inability to find out whether Americans in their wholly domestic communications have had their rights violated, how many law-abiding Americans have had their e-mails and phone calls swept up under FISA authorities, responses to these questions that stem from public remarks made by intelligence officials at public conferences--the inability to get answers to these questions means that this Senate cannot conduct the vigorous oversight that is our charge. I expect we will have colleagues coming in. With the weather, it is a special challenge to get here from our part of the country. I have a parliamentary inquiry. The distinguished chair of the committee already, I believe, got unanimous consent that the time in quorum calls be allocated to both sides. That was my understanding. Is that correct?

Mr. WYDEN. Mr. President, first, I strongly support your amendment, given how little most Members of Congress know about the actual impact of the law. The shorter extension period as envisioned by the distinguished chairman of the Judiciary Committee makes a lot of sense. I also think it makes sense to have the intelligence community inspector general conduct an audit on how FISA Amendment Act authority has been used. Once again, we have had this discussion about how much everybody already knows about how the FISA Amendments Act affects the operations of this program on law-abiding Americans. I would have to respectfully disagree. I asked Senators, as we touched on this in the course of the afternoon, whether they know if anyone has ever estimated how many U.S. phone calls and e-mails have been warrantlessly collected under this statute? Senator Udall and I have asked this very simple question: Has there been an estimate--not whether there is going to be new work, whether they are going to be difficult assignments. We have asked whether there has ever been an estimate of how many U.S. phone calls have been warrantlessly collected under the statute. We were told in writing we were not going to be able to get that information. I think Senators ought to also ask themselves whether they know if any domestic phone calls and e-mails, what are wholly domestic communications, have been conducted under this statute. I think they will also find they do not know the answer to this question. I think Senators also would want to know whether the Government has ever conducted any warrantless backdoor searches for Americans' communications. So when we have the argument that has now been advanced several times in the course of the day that we already know so much, we do not need all these amendments, it is just going to delay passage of the legislation, I urge people--go to my Web site, in particular--to look at what we have learned from the intelligence community, which is the response to request after request, particularly requests of a tripartisan group of Senators asking yes or no questions: Has there been an estimate? For example, how many law abiding Americans have had their communications swept up into these FISA authorities? Our inability to get that answer makes it clear that when one talks about robust oversight under this legislation, the reality is that there is enormous lack of specifics with respect to how this legislation actually works. I would only say in response to the amendment offered by the Presiding Officer, Senator Leahy, the chairman of the Judiciary Committee, I think his amendment is very appropriate. Given how little is known, to me it is one of the fundamental pillars of good oversight that we do not grant open-ended kind of authorizations when we lack so much fundamental information about how this program works, particularly how it would affect law-abiding Americans. With that, I yield back.

Mr. WYDEN. My colleague is asking a particularly important question because the Director of the National Security Agency, General Alexander, recently spoke at a large technology conference, and he said that with respect to communications from a good guy, which we obviously interpret as a law-abiding American, and someone overseas, the NSA has ``requirements from the FISA Court and the Attorney General to minimize that''--to find procedures to protect the individual, the law-abiding American's rights, essentially meaning, in the words of General Alexander, ``nobody else can see it unless there's a crime that's been committed.'' If people hear that answer to my colleague's question--which, frankly, General Alexander responded to directly--they pretty much say that is what they were hoping to hear; that nobody is going to get access to their communications unless a crime has been committed. The only problem, I would say to my friend, is Senator Udall and I have found out that is not true. It is simply not true. The privacy protections provided by this minimization approach are not as strong as General Alexander made them out to be. Senator Udall and I wrote to General Alexander, and he said--and I put this up on my Web site so all Americans can see the response--the general said: That is not really how the minimization procedures work--these minimization procedures that have been described in such a glowing way--and that the privacy protections are not as strong as we have been led to believe. He may have misspoken and may have just been mistaken, but I am not sure the record would be correct even now had not Senator Udall and I tried to make an effort to follow it up. I can tell the Senator that at this very large technology conference--this was not something that was classified--at a very large technology conference recently in Nevada, what the head of the National Security Agency said was taking place with respect to protecting people, in response to my colleague's questions: Were their e-mails and phone calls protected, the general said to a big group: They are, unless a crime has been committed. The real answer is that is not correct.

Mr. WYDEN. I ask unanimous consent.

Mr. WYDEN. Mr. President, I think this is acceptable, yes.

Mr. WYDEN. I thank my colleague. He is making an important point. I have sat next to Senator Feinstein in the Intelligence Committee now for 12 years, and I think all of us--and we have had chairs on both sides of the aisle--understand how important the work of the intelligence community is. This is what prevents so many threats to our country from actually becoming realities--tragic realities. What my friend and colleague from Oregon has hammered home this afternoon is that if a law is secret and there is a big gap between the secret interpretation of a law and what the public thinks the law means--my friend and I represent people who, for example, could be using their laptop at home in Coos Bay. If they look up a law and they see what the public interpretation is and they later find out that the public interpretation is real different than what the government secretly says it is, when people learn that, they are going to be very unhappy. I see my colleague would like some additional time to address this issue. I am happy to yield to him.

Mr. WYDEN. Absent the information we are seeking to get under the amendment I am going to offer, I do not think it is possible for a Senator to respond to the question. The issue for an individual Senator would be: Do you know whether anyone has ever estimated how many U.S. phone calls and e-mails have been warrantlessly collected under the statute? Do you know whether any wholly domestic phone calls and e-mails have been collected under this statute, which I believe is the exact question my colleague from Oregon has asked. I do not believe a Member of the Senate can answer that question. Being unable to answer that question means that oversight, which is so often trumpeted on both sides of the aisle, is toothless when it comes to the specifics. I hope that responds to my colleague's question.

Mr. WYDEN. Mr. President, I thank Leader Reid for the honor of being able to open this morning's debate. I also wish to particularly identify with a point the leader made. There is an old saying that most of life is just showing up. I think what the American people want--I heard this at checkout lines in our local stores, for example, this week--they want everybody back in Washington and going to work on this issue, just as the leader suggested. I think Senators know I am a charter member of what I guess you could call the optimist caucus in the Senate. As improbable as some of these talking heads say on TV that it is, I still think we ought to be here, just as the leader said, working on this issue because of the consequences.

Mr. WYDEN. I would be happy to yield to the majority leader.

Mr. WYDEN. Mr. President, parliamentary inquiry: Can I yield to Senator Merkley time from general debate in order to let him complete his remarks?

Mr. WYDEN. I do. The leader is being logical, and Heaven forbid that sometimes logic break out on some of these matters. I remember when we started out--and I joked that I had a full head of hair and rugged good looks--the majority leader and I used to work with people on both sides of the aisle. We would try to show up early, go home late, and, as the leader said, focus on getting some results. I thank the leader for his point and again for the honor of being able to start this discussion. As I indicated, what I heard at home is that we are supposed to be here and try to find some common ground. I know the talking heads on TV say this is impossible and it cannot be done. First of all, as the majority leader said, this has been done in the past. When there are big issues and big challenges, historically the Congress will come together and deal with it. I am particularly concerned about some of the effects going over the cliff will have on vulnerable senior citizens. As the Presiding Officer knows, that is my background. We have often talked about health care and seniors. My background was serving as codirector of the Oregon Gray Panthers. If the reimbursement system for Medicare, in effect, goes over this cliff, that is going to reduce access to health care for senior citizens across the country, and I don't believe there are Democrats and Republicans who want that to happen. As the majority leader indicated, finding some common ground on this issue and backing our country away from the fiscal cliff is hugely important and crucial to the well-being of our country. I just wanted to start with those remarks. Also crucial to our country is the legislation before the Senate right now. Its name is a real mouthful. Mr. President, I think you will recall this legislation from your days serving on the Senate Select Committee on Intelligence. The name of this is the Foreign Intelligence Surveillance Act Amendments Act. It also expires in a few days. Our job is to find a way to strike the best possible balance between protecting our country from threats from overseas and safeguarding the individual liberties of the law-abiding Americans we have cherished in this country for literally hundreds of years. This task of balancing security and liberty was one of the most important tasks defined by the Founding Fathers years and years ago, and it is no less important for the Congress today. As I indicated earlier, the majority leader, Leader Reid, has accorded me the honor of beginning this debate. I will open with a very short explanation of what the FISA Amendments Act is all about. Of course, this is an extension of the law that was passed in 2008. It is a major surveillance law, and it is the successor to the warrantless wiretapping program that operated under the Bush administration, which gave the government new authorities to collect the communications of foreigners outside the United States. The bill before the Senate today would extend this law for another 5 years. There is going to be a discussion of various issues, but all of them go to what I call the constitutional teeter-totter, which is basically balancing security, protecting our country at a dangerous time, and the individual liberties that are so important to all of us. I expect there will be amendments to strengthen protections for the privacy of law- abiding Americans. I want to say to my colleagues and those who are listening that this is likely to be the only floor debate the Senate has on this law encompassing literally a 9-year period--from 2008 to 2017. So if we are talking about surveillance authority that essentially looks to a 9-year period, we ought to have an important discussion about it, and that is why I am grateful to the majority leader for making today's discussion possible. I have served on the Senate Intelligence Committee for 12 years now, and I can tell every Member of this body that those who work in the intelligence community are hard-working and patriotic men and women. They give up an awful lot of evenings, weekends, and vacations to try to protect the well-being and security of our country. For example, we hear a lot about a well-publicized event, such as their enormously valuable role in apprehending bin Laden. What we don't hear about is the incredible work they do day in and day out. They work hard to gather intelligence, and I commend them for it as we begin this discussion. The job of those who work in the intelligence community is to follow whatever laws Congress lays down as those hard-working men and women collect intelligence. Our job here in the Congress is to make sure the laws we pass are in line with the vision of the Founding Fathers, which was to protect national security as well as the rights of individual Americans. We all remember the wonderful comment by Ben Franklin. I will paraphrase it, but essentially Ben Franklin said: If you give up your liberty to have security, you really don't deserve either. We owe it to the hard-working men and women in the intelligence community to work closely with them. We need to find the balance Ben Franklin was talking about, and we can help them by conducting robust oversight over the work that is being done there so members of the public can have confidence in the men and women of the intelligence community. This will give the public the confidence to know that as we protect our security at a dangerous time, we are also protecting the individual liberties of our people. The story with respect to this debate really begins in early America when the colonists were famously subjected to a lot of taxes by the British Government. The American colonists thought this was unfair because they were not represented in the British Parliament. They argued that if they were not allowed to vote for their own government, then they should not have to pay taxes. We all remember the renowned rallying cry of the colonists. It was ``no taxation without representation.'' Early revolutionaries engaged in protests against these taxes all over the country. Of course, the most famous of these protests was the Boston Tea Party in which colonists threw shiploads of tea into the Boston Harbor in protest of the tax on tea. As we recall from our history books, there were a lot of taxes on items such as tea, sugar, paint, and paper. Because so many colonists believed these taxes were unjust, there was a lot of smuggling going on in the American Colonies. People would import things, such as sugar, and simply avoid paying the tax on them. We all remember that the King of England didn't like this very much. He wanted the colonists to pay taxes whether they were allowed to vote or not. So the English authority began issuing what were essentially general warrants. They were called writs of assistance, and they authorized government officials to enter into any house or building they wanted in order to search for smuggled goods. These officials were not limited to only searching in certain houses, and they were not required to show any evidence that the place they were searching had any smuggled goods in it. Basically, government officials were allowed to say they were looking for smuggled goods and then would search any house they were interested in to see if the house had some of those smuggled goods. An English authority's goal is to find smuggled goods. Letting constables and customs officers search any house or building is a pretty effective way to go out and find something. If they keep searching enough houses, eventually they will find some smuggled goods in one of them and seize those goods and arrest whoever lives in that house for smuggling. Of course, the problem is that if government officials can search any house they want, they are going to search through the houses of a lot of people who have not broken any laws. Mr. President, it is almost as if you decided you were going to search everybody in your State of Rhode Island. You could go in and turn them all upside down, shake them, and see if anything fell out. Obviously, you would find some people who had some things in their possession that they should not have, but that is not the way we do it in America. In America, there has to be probable cause in order to do something like that. The American colonists had a huge problem with the idea that everybody's house was going to be checked for smuggled goods on the prospect that maybe somebody somewhere had engaged in smuggling. The colonists said it is not OK to go around invading people's privacy unless there is some specific evidence that they have done something wrong. That is how people in Rhode Island and Oregon feel today. One cannot just go out and check everybody in sight on the prospect that maybe there is someone who has done something wrong. Back in the colonists' time, the law said that these writs of assistance were good until the King died. So when King George II died and the authorities had to get new writs, many colonists tried to challenge them in court. In Boston, James Otis denounced this mass invasion of privacy by reminding the court that--and we remember this wonderful comment--a man's house is his castle. Mr. Otis described the writs of assistance as the power that places the liberty of every man in the hands of every petty officer. Unfortunately, the court ruled that these general orders permitting mass searches without individual suspicion were legal, and English authorities continued to use them. The fact that English officials went around invading people's privacy without any specific evidence against them was one of the fundamental complaints the American colonists had against the British Government. So naturally our Founding Fathers, with the wisdom they showed on so many matters, made it clear they wanted to address this particular complaint when they wrote the Bill of Rights. The Bill of Rights ensures that strong protections of individual freedom would be included within our Constitution itself, and the Founding Fathers included strong protections for personal privacy in the fourth amendment. The fourth amendment states: 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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be searched. This was a direct rejection of the authority the British had claimed to have when they ruled the American Colonies. The Founding Fathers said our government does not have the right to search any house that government officials want to search even if it helps them to do their job. Government officials may only search someone's house if they have evidence that someone is breaking the law and they show the evidence to a judge to get an individual warrant. For more than 200 years, this fundamental principle has protected Americans' privacy while still allowing our government to enforce the law and to protect public safety. As time passed and we entered the 20th century, advances in technology--a whole host of technologies--gave government officials the power to invade individual privacy in a whole host of new ways--new ways the Founding Fathers never dreamed of--and all through those days, the Congress and the courts struggled to keep up. Time and time again Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment. It is striking. If we look at a lot of the debates we are having today about the Internet--and the Presiding Officer has a great interest in this; we have talked often about it--certainly the Founding Fathers could never have envisioned tweeting and Twitter and the Internet and all of these extraordinary technologies. But what we have seen as technology has continued to bring us this treasure trove of information with all of these spectacular opportunities the Founding Fathers never envisioned is that time and time again the Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment. For example, in 1928 the Supreme Court considered a famous case about whether the fourth amendment made it illegal for the government to listen to an individual's phone conversations without a warrant. Once again, dating almost to the precedent about the colonists and smuggling, the 1928 case was about smuggling--specifically, bootlegging. The government argued then that as long as it did the wiretapping remotely without entering an individual's house, the fourth amendment would not apply. Now, Justice Louis Brandeis wrote what has come to be seen in history as an extraordinary dissent, a brilliant dissent, and he argued that this was all wrong; that the fourth amendment was about preventing the government from invading Americans' privacy regardless of how the government did it. I am just going to spend a couple of minutes making sure people see how brilliant and farsighted Justice Brandeis was in how his principles--the principles he talked about in 1928--are as valid now as they were then. Justice Brandeis said: When the Fourth and Fifth Amendments were adopted . . . force and violence were then the only means known to man by which a Government could directly effect self-incrimination. . . . Subtler and more far-reaching means of invading privacy have [in effect] now become available to the Government. Discovery and invention have made it possible for the Government . . . to obtain disclosure in court of what is whispered in the closet. Justice Brandeis goes on to say: In the application of a Constitution, our contemplation cannot be only of what has been but of what may be. The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ``That places the liberty of every man in the hands of every petty officer'' was said by James Otis of much less intrusions than these. Justice Brandeis goes on to say: The principles-- The principles, literally-- [behind the Fourth Amendment] affect the very essence of constitutional liberty and security. They . . . apply to all invasions on the part of the Government and its employees of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where the right has never been forfeited by his conviction of some public offense. Justice Brandeis closes this remarkable dissent saying: . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved with tampering with the mails. . . . As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping. The protection guaranteed by the amendments Justice Brandeis was referring to--the fourth and fifth amendments--is broad in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans and their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government on the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Because I have outlined Justice Brandeis's dissent on several issues, I want to make sure those last two sentences are clear. Justice Brandeis said that the right of the people to be left alone by their government is ``the most comprehensive of rights''--the most comprehensive of rights, said Justice Brandeis--and, he said, ``the right most valued by civilized men.'' And the Justice said that intrusions on individual privacy, ``whatever the means employed, must be deemed a violation of the Fourth Amendment.'' The reason I have outlined Justice Brandeis's views on this issue is that Justice Brandeis's views didn't prevail in 1928. Back in 1928 they thought they were dealing with high-tech surveillance. But suffice it to say that his views were eventually adopted by the full Supreme Court. That is why I believe it is so important that as we look to today's debate--really an opportunity to update the way in which that careful balance, the constitutional teeter-totter: security, well-being of all of us on this side and individual liberties on this side--it is so important to recognize what Justice Brandeis said about the value of getting it right when it comes to liberty, when it comes to individual freedom. One of the reasons there are amendments being offered by Senators to this legislation at a time when we are dealing with these crucial issues about the fiscal cliff, the question of the budget, taxes, and, as I mentioned, senior citizens being able to see a doctor--those are crucial issues, but this legislation, the FISA Amendments Act, is also a crucial piece of legislation, and that is why Senators will be offering amendments in order to strike the best possible balance between security and liberty. When the Foreign Intelligence Surveillance Act, which is often known as FISA--Senators and those listening will hear that discussion almost interchangeably; the abbreviated name is FISA--when it was written in 1978, Congress applied Justice Brandeis's principles to intelligence gathering. The Congress, when they wrote the original FISA legislation in 1978, really said that Justice Brandeis got it right with respect to how we ought to gather intelligence. So the original FISA statute stated that if the government wants to collect an American's communications for intelligence purposes, the government must go to a court, show evidence that the American is a terrorist or a spy, and get an individual warrant. This upheld the same principle the Founding Fathers fought for in the revolution, it is the same principle enshrined in the Bill of Rights, and it said that government officials are not allowed to invade Americans' privacy unless they have specific evidence and an individual warrant. After 9/11, the Bush administration decided it would seek additional surveillance authorities beyond what was in the original Foreign Intelligence Surveillance Act statute. To our great regret, instead of asking the Congress to change the law, the Bush administration developed a warrantless wiretapping program--let me repeat that, a warrantless wiretapping program--that operated in secret for a number of years. When this became public--as I have said on this floor before, these matters always do become public at some point--when it became clear that the Bush administration had developed this warrantless wiretapping program, there was a huge uproar across the land. I remember how angry many of my constituents were when they learned about the warrantless wiretapping program, and I and a lot of other Senators were very angry as well. As has the Presiding Officer, I have been on the Intelligence Committee, and I have been a member for 12 years, but the first time I heard about the warrantless wiretapping program--the first time I heard about it--was when I read about it in the newspapers. It was in the New York Times before I, as a member of the Senate Select Committee on Intelligence, knew about it. There was a very heated debate. Congress passed the FISA Amendments Act of 2008, and that was to replace the warrantless wiretapping program with new authorities for the government to collect the phone calls and e-mails of those believed to be foreigners outside the United States. The centerpiece of the FISA Amendments Act is a provision that is now section 702 of the FISA statute. Section 702 is the provision that gave the government new authorities to collect the communications of people who are believed to be foreigners outside the United States. This was different than the original FISA statute. Unlike the traditional FISA authorities and unlike law enforcement wiretapping authorities, section 702 of the FISA Amendments Act does not involve obtaining individual warrants. Instead, it allows the government to get what is called a programmatic warrant. It lasts for an entire year and authorizes the government to collect a potentially large number of phone calls and e- mails, with no requirement that the senders or recipients be connected to terrorism, espionage--the threats we are concerned about. If that sounds familiar, it certainly should. General warrants that allowed government officials to decide whose privacy to invade were the exact sort of abuse that the American colonists protested over and led the Founding Fathers to adopt the fourth amendment in the first place. For this reason, section 702 of the FISA law contains language that is specifically intended to limit the government's ability to use these new authorities to spy on Americans. Let me emphasize that because that is crucial to this discussion and the amendments that will be offered. It is never OK--never OK--for government officials to use a general warrant to deliberately invade the privacy of a law-abiding American. It was not OK for constables and Customs officials to do it in colonial days, and it is not OK for the National Security Agency to do it today. So if the government is going to use general warrants to collect people's phone calls and e-mails, it is extremely important to ensure that this authority is only used against foreigners overseas and not against law-abiding Americans. Despite what the Acting President pro tempore and the Senate may have heard, this law does not actually prohibit the government from collecting Americans' phone calls and e-mails without a warrant. The FISA Amendments Act states--and I wish to quote because there have been a lot of inaccuracies and misrepresentations on this--the FISA Amendments Act states that acquisitions made under section 702 may not ``intentionally target'' a specific American and may not ``intentionally acquire'' communications that are ``known at the time of acquisition'' to be wholly domestic. But the problem with that is, it still leaves a lot of room for circumstances under which Americans' phone calls and e-mails--including purely domestic phone calls and e-mails--could be swept up and reviewed without a warrant. This can happen if the government did not know someone is American or if the government made a technical error or if the American was talking to a foreigner, even if that conversation was entirely legitimate. I am not talking about some hypothetical situation. The FISA Court, in response to a concern I and others have had, has already ruled at least once that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. Senate rules regarding classified information prevent me from discussing the details of that ruling or how many Americans were affected, over what period of time, but this fact alone clearly demonstrates the impact of this law on Americans' privacy has been real and it is not hypothetical. When the Congress passed the FISA Amendments Act 4 years ago, it included an expiration date. The point of the expiration date was to ensure that Congress could review these authorities closely and the Congress could decide whether protections for Americans' privacy are adequate or whether they need to be modified. Again, go back to what I have described as the constitutional teeter- totter--our job: balance the need of the government to collect information, particularly with respect to what can be threats coming from overseas, with the right of individual Americans to be left alone. It is that balance we are discussing. If the Congress finds it is unbalanced, the Congress has a responsibility to step up and figure out how to make the appropriate changes in the law to ensure that both security and privacy are being protected simultaneously. Unfortunately, the Congress and the public--the American people--do not currently have enough information to adequately evaluate the impact of the law we are debating on Americans' privacy. There are a host of important issues about the law's impact that intelligence officials have simply refused to answer publicly. I am going to now spend a few minutes outlining the big questions I believe Americans deserve answers to. Certainly, the Congress has to have answers to these questions in order to do our job--our job of doing robust oversight over this law and over intelligence, which, as I said a bit ago, is exactly what the hard-working men and women in the intelligence community need and deserve in order to do their job in a way that will generate confidence among the American people. First, if we want to know what kind of impact this law has had on Americans' privacy, we probably want to know roughly how many phone calls and e-mails that are to and from Americans have been swept up by the government under this authority. Senator Mark Udall, our distinguished colleague from Colorado and a great addition to the Intelligence Committee--he and I began the task of trying to ferret out this information some time ago. Over a year and a half ago, Senator Mark Udall and I asked the Director of National Intelligence how many Americans have had their communications collected under this law; in effect, swept up by the government under these authorities. The response was it is ``not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the'' FISA Amendments Act. That is how the government responded to Senator Udall and me. If you are a person who does not like the idea of government officials secretly reviewing your phone calls and e-mails, you probably do not find that answer particularly reassuring. But suffice it to say, the situation got worse from there. In July of this year, I and a tripartisan group of 12 other Senators, including Senator Mark Udall, our colleague from Utah, Senator Mike Lee, Senator Durbin--I am pleased to be joined by Senator Merkley, who has been vital in this coalition, this tripartisan coalition to get the best possible balance between security and liberty--he was a signer of the letter; Senator Paul of Kentucky, who has also been an outspoken advocate of striking a better balance between privacy and liberty was a signer; Senator Coons, Senator Begich, Senator Bingaman, Senator Tester, Senator Sanders, Senator Tom Udall, Senator Cantwell--all of us joined in writing another letter to the Director of National Intelligence asking additional questions about the impact of this law on Americans' privacy. We asked the Director if he could give us even a rough estimate--just a rough estimate--in other words, there has been discussion both in the press and in the intelligence community: This group of Senators is asking for something impossible. This group of Senators is asking for an exact count of how many Americans are being swept up under this FISA authority, their calls and e-mails reviewed. I wish to emphasize we just said, as a tripartisan group of Senators: We would just like a rough estimate--use any approach they want in terms of giving us an assessment of how many Americans' communications have been swept up in this way. Is it hundreds? Is it hundreds of thousands? Is it millions? The tripartisan group of Senators basically was just asking for a report, the kind of information that is a prerequisite to doing good oversight. Frankly, I think when we talk about oversight and we cannot even get a rough estimate of how many law-abiding Americans have had their communications swept up under this law, if they do not have that kind of information, oversight--the idea of robust oversight--it ought to be called toothless oversight if they do not have that kind of information. The Director declined to publicly answer this question. So our tripartisan group and others continued. We asked the Director if anyone else has already done such an estimate. We did not ask about doing anything new. The intelligence community said: Oh, my goodness. It will be so hard to give even a rough estimate. So we said: OK. Just tell us if anyone else has already done such an estimate. The Director declined to publicly answer this question as well. Right at the heart of this discussion is, if we are serious about doing oversight, the Congress ought to be able to get a straightforward answer to the question: Have any estimates been done already as to whether law-abiding Americans have had their communications swept up under the FISA authority? Second, if we want to understand this law's impact on Americans' privacy, we probably want to know whether any wholly domestic communications have been collected under the FISA authorities. When we are talking about wholly domestic communications, we are talking about one person in the United States talking to another person who is also in the United States. This law contains a number of safeguards that many people thought would prevent the warrantless collection of wholly domestic U.S. communications, and I think the Congress ought to know whether these safeguards are working. So our tripartisan group of Senators dug into this issue as well, and we asked the Director back in July if he knew whether any wholly domestic U.S. communications had been collected under the FISA Amendments Act. So here we are talking about wholly domestic communications from one American, for example, in Rhode Island, to another American in the home State of Senator Merkley and myself. I am disappointed to say the Director declined to answer this question as well. Let's contemplate that for a moment. A tripartisan group of Senators--Democrats, Republicans, Independents--asked if the government knew whether any wholly domestic communications had been collected under the FISA law, and the head of the intelligence community declined to publicly provide a simple yes or no response to that question. That means the FISA Amendments Act involves the government going to a secret court on a yearly basis and getting programmatic warrants to collect people's phone calls and e-mails, with no requirement that these communications actually belong to people involved with terrorism or espionage. This authority is not supposed to be used against Americans, but, in fact, intelligence officials say they do not even know how many American communications they are actually collecting. The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans' phone calls and e-mails, there are surprisingly few rules about what can be done with it. For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity. Again, if it sounds familiar, it ought to because that is how I began this discussion, talking about these sorts of general warrants that so upset the colonists. General warrants allowing government officials to deliberately intrude on the privacy of individual Americans at their discretion was, as I have outlined this morning, the abuse that led America's Founding Fathers to rise up against the British. They are exactly what the fourth amendment was written to prevent. If government officials wanted to search an American's house or read their e-mails or listen to their phone calls, they are supposed to show evidence to a judge and get an individual warrant. But this loophole in the law allowed government officials to make an end run around traditional warrant requirements and conduct backdoor searches for American's communications. Now, let me be clear. If the government has clear evidence that an American is engaged in terrorism, espionage--serious crimes--I think the government ought to be able to read that person's e-mails and listen to that person's phone calls. I believe and have long felt that is an essential part of protecting public safety. But government officials ought to be required to get a warrant. As the Presiding Officer knows, there are even emergency provisions--and I support these strongly as well--that allow for an emergency authorization before you get the warrant, in order to protect the well-being of the American people. So what we want to know at this point, if you are trying to decide whether the constitutional teeter-totter is being properly balanced or is out of whack, you want to know whether the government has ever taken advantage of this backdoor search loophole and conducted a warrantless search for the phone calls or e-mails of specific Americans. So when the tripartisan group wrote to the Director of National Intelligence, we asked him to state whether the intelligence community has ever deliberately conducted a warrantless search of this nature. The Director declined to respond to this as well--declined to respond to a tripartisan group of Senators simply asking: Has the intelligence community ever deliberately conducted a warrantless search of this nature? If anybody is kind of keeping score on this, you will notice that the Director refused to publicly answer any of the questions that were asked in our letter. So if you are looking for reassurance that the law is being carried out in a way that respects the privacy of law-abiding American citizens, you will not find it in his response. I should note that the Director did provide additional responses in a highly classified attachment to his letter. This attachment was so highly classified that I think of the 13 Senators who signed the letter of the tripartisan group, 11 of those 13 Senators do not even have staff who have the requisite security clearance to read it. So naturally that makes it hard for those Senators, let alone the public, to gain a better understanding of the privacy impact of the law. Several Senators sent the Director a followup letter last month again urging him to provide public answers to what we felt were straightforward questions--really sort of a minimum set of responses that the Congress needs to do oversight. The Director refused that as well. Intelligence officials do not deny the facts I have outlined this morning. They still insist they are already protecting innocent Americans' privacy. There is a lot of discussion about how this program is overseen by the secret FISA Court, how the court is charged with ensuring that all of the collections carried out under this program are constitutional. To respond to those arguments, I would note that under the FISA Amendments Act, the government does not have to get the permission of the FISA Court to read particular e-mails or listen to particular phone calls. The law simply requires the court to review the government's collection and handling procedures on an annual basis. There is no requirement in the law for the court to approve the collection and review of individual communications even if government officials set out to deliberately read the e-mails of an American citizen. Even when the court reviews the government's collection and handling procedures, it is important to note that the FISA Court's ruling are made entirely in secret. It may seem hard to believe, but the court's rulings that interpret major surveillance law and even the U.S. Constitution in significant ways--these are important judgments--the public has absolutely no idea what the court is actually saying. What that means is that our country is in effect developing a secret body of law so that most Americans have no way of finding out how their laws and their Constitution are being interpreted. That is a big problem. Americans do not expect to know the details of how government agencies collect information, but Americans do expect those agencies to operate within the boundaries of publicly understood law. Americans need and have a right to know how those laws and the Constitution are interpreted so they can ratify the decisions that elected officials make on their behalf. To put it another way, I think we understand that Americans know that intelligence agencies sometimes have to conduct secret operations, but the American people do not expect these agencies to rely on secret law. I think we understand that the work of the intelligence community is so extraordinarily important. I see the distinguished chair of the committee here. Every member of our committee--every member--feels that it is absolutely critical to protect the sources and methods by which the work of the intelligence community is being done. But we do not expect the public to, in effect, just accept secret law. When you go to your laptop and you look up a law, it is public. It is public. But what I have described is a growing pattern of secret law that makes it harder for the American people to make judgments about the decisions that are being made by those in the intelligence community. I think that can undermine the confidence the public has in the important work being done by the intelligence community. If you think back to colonial times, when the British Government was issuing writs of assistance and general warrants, the colonists were at least able to challenge those warrants in open court. So when the courts upheld those writs of assistance, ordinary people could read about the decisions, and people such as James Otis and John Adams could publicly debate whether the law was adequately protecting the privacy of law-abiding individuals. But if the FISA Court were to uphold something like that today, in the age of digital communications and electronic surveillance, it could conceivably pass entirely unnoticed by the public, even by those people whose privacy was being invaded. Since 2008 other Senators and I have urged the Department of Justice and the intelligence community to establish a regular process for reviewing, redacting, and releasing the opinions of the FISA Court that contain significant interpretation of the law so that members of the public have the opportunity to understand what their government thinks their law and their Constitution actually mean. I am not talking about a need to release every single routine decision made by the court. Obviously, most of the cases that come before the court contain sensitive information about intelligence sources and methods that are appropriate to keep secret. I do not take a backseat to any Member of this body in terms of protecting the sources and methods of those in the intelligence community doing their important work, but the law itself should never be secret. What Federal courts think the law and the fourth amendment to the Constitution actually mean should never be a secret from the American people, the way it is today. I am going to wrap up. I see Senator Merkley and Senator Feinstein here. I have a couple of additional points. I was encouraged in 2009 when the Obama administration wrote to Senator Rockefeller and myself to inform us that they would be setting up a process for redacting and releasing those FISA Court opinions that contained significant interpretations of law. Unfortunately, over 3 years later, this process has produced literally zero results. Not a single redacted opinion or summary of FISA Court rulings has been released. I cannot even tell if the administration still intends to fulfill this promise. I often get the feeling they are hoping people will go away and forget that the promise was made in the first place. I should note, in fairness, that while the administration has so far failed to fulfill this promise, the intelligence community has sometimes been willing to declassify specific information about the FISA Court's rulings in response to requests from myself and other Senators. For example, in response to a request I made this past summer, the intelligence community acknowledged that on at least one occasion--this was an acknowledgement from the intelligence community. The intelligence community acknowledged that at least on one occasion, the FISA Court had ruled that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. I think that is an important point to remember when you hear people saying the law is adequately protecting Americans' privacy. I would also note that on this point, partially declassified internal reviews of the FISA amendments collection act have noted that certain types of compliance issues continue to occur--continue to occur. I have two last points. Beyond the fact that the programmatic warrants authorized by the FISA Amendments Act are approved by a secret court, the other thing that intelligence officials cite is that there are ``minimization'' procedures to deal with the issues that those of us who are concerned about privacy rights have raised. This is an odd term, but it simply refers to rules for dealing with information about Americans. Intelligence officials will tell you that these are pretty much taking care of everything, and if there are not enough privacy protections in the law itself, minimization procedures provide all of the privacy protections any reasonable person could ever want or need. These minimization procedures are classified, so most people are never going to know what they say. As someone who has access to the minimization procedures, I will make it clear that I think they are certainly better than nothing, but there is no way, colleagues, these minimization procedures ought to be a substitute for having strong privacy protections written into the law. I will close with the reason I feel so strongly about this, which is that senior intelligence officials have sometimes described these handling procedures in misleading ways and make protections for Americans' privacy sound stronger than they actually are. I was particularly disappointed when the Director of NSA did this recently at a large technology conference. In response to a question about the National Security Agency's surveillance of Americans, General Alexander referenced the FISA Amendments Act and talked in particular about the minimization procedures that applied to the collection of U.S. communications. Understand that this was at a big, open technology conference. General Alexander said that when the NSA sweeps up communications from a ``good guy,'' which I think we all assume is a law-abiding American, the NSA has ``requirements from the FISA court and the Attorney General to minimize that, which means nobody else can see it unless there is a crime that is being committed.'' Now, anybody who hears that phrase says: That is pretty good. I imagine that is what people in that technology meeting and the conference call wanted to hear. The only problem is that it is not true. It is not true at all. The privacy protections provided by these minimization procedures are simply not as strong as General Alexander made them out to be. In October, a few months after General Alexander made the comments, Senator Udall and I wrote him a letter asking him to please correct the record. The first paragraphs of the letter were: Dear General Alexander: You spoke recently at a technology convention in Nevada, at which you were asked a question about NSA collection of information about American citizens. In your response, you focused in particular on section 702 of the FISA Amendments Act of 2008, which the Senate will debate later this year. In describing the NSA's collection of communications under the FISA Amendments Act, you discussed rules for handling the communications of U.S. persons. General Alexander said: We may, incidentally, in targeting a bad guy hit on somebody [sic] from a good guy, because there's a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there's a crime that's been committed. Senator Udall and I wrote: We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA's FISA Amendments Act collection, and portrayed privacy protections for Americans' communications as being stronger than they actually are. We urge you to correct this statement, so that Congress and the public can have a debate over the renewal of this law that is informed by at least some accurate information about the impact it has had on Americans' privacy. General Alexander wrote us back a few weeks later and said that, of course, that is not exactly how minimization procedures work and, of course, the privacy protections aren't as strong as that. If anyone would like to read his letter, I put it up on my Web site. I don't know why General Alexander described the minimization procedures the way he did. It is possible he misspoke. It is possible he was mistaken. But I certainly would be more sympathetic to these arguments that all these privacy protections are being taken care of if it hadn't taken Senator Udall and I making a push to get the NSA to correct the record with respect to these minimization procedures. Frankly, I am not sure, if there hadn't been a big push by Senators who had questions about what was said at that technology conference, I am not sure the NSA would have ever corrected what they originally said about minimization. So minimization procedures are not a bad idea, but the suggestion that we don't need privacy protections written into the law because of them is a bad idea. Finally, at that conference, General Alexander stated: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.'' I have been on the Senate Intelligence Committee for 12 years, and I don't know what the term ``dossier'' means in that context. So in October, Senator Udall, a member of the committee, and I asked the Director to clarify that statement. We asked: Does the NSA collect any type of data at all on `millions or hundreds of millions of Americans'? I think that is a pretty straightforward question. If we are asking whether the NSA is doing a good job protecting Americans' privacy, it is one of the most basic questions of all. If General Alexander saw fit, and he was the one who said they don't keep millions of dossiers, General Alexander could have answered our question about whether they were keeping these dossiers with a simple yes or no. Instead, the Director of the NSA replied that while he appreciated our desire to have responses to the questions on the public record, he would not provide a public answer. Again, the Director of the NSA said: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.'' So two members of the committee asked: ``Does the NSA collect any type of data at all on `millions or hundreds of millions of Americans,' '' and the Director refused to respond. At this point, I close by way of saying I believe the FISA Amendments Act has enabled the government to collect useful intelligence information, and my goal is to reform the legislation. The two specific things I want to do are, first, require the intelligence community to provide more information about the impact of the FISA Amendments Act on Americans' privacy and, second, to make improvements to privacy protections so we can readily see where they are most needed. So there will be several amendments that will be offered. The amendment I will be offering is sponsored by 15 Members of the Senate. It simply says the Director of the National Intelligence Agency should submit a report to the Congress on the privacy impact of the FISA Amendments Act. This amendment would require the report to state whether any estimate has been done, how many U.S. communications have been collected under the authority, and to provide any estimates that exist. I wish to emphasize this amendment would not require any entity to actually conduct such an estimate. The Director would be required only to provide any estimates that have already been done and, if no estimates exist, the Director could say so. Additionally, the amendment would require the report to state whether any wholly domestic communications have been collected under the FISA Amendments Act and whether any government agencies have ever conducted any warrantless, backdoor searches. These are straightforward questions, and they are obviously relevant to understanding the scope of the law's impact on privacy. The report would address General Alexander's confusing statements by requiring the intelligence community to simply state whether the NSA has collected any personally identifiable data on more than 1 million Americans. The Congress and the country deserve an answer to this question as well. The amendment does not force the declassification of any information. The amendment gives the President full discretion to redact as much information from the public version of the report as he deems appropriate, as long as he tells the Congress why. To repeat, the amendment doesn't require the intelligence community to conduct a new estimate, and the President would have full discretion to decide whether any information should be made public. I offer this amendment because I believe every Member of Congress ought to have the answers to these questions. If your constituents are similar to mine and Senator Merkley's, they expect us to give government agencies the authority to protect our country and to gather intelligence on important topics, but they also expect us to conduct vigorous oversight on what those agencies are doing. It is, I guess, a temptation to say: I don't know what is going on, so I will let somebody else look at the privacy issues and go from there. I don't think that is good oversight. To me, at a minimum, if we don't pass a requirement that we get a rough accounting of whether there has even been an estimate done with respect to how many law-abiding Americans have been swept up under these FISA authorities, my view is that oversight becomes toothless, and that is not what our obligation over these issues is all about. There will be other important amendments as well. Senator Merkley has one that I think is particularly important because it goes to this question of secret laws. Senator Leahy seeks to promote additional accountability as well with his important amendment. My colleague Senator Paul will be offering an amendment, an important amendment as well, with respect to reasonable searches and seizures under the fourth amendment. We obviously have crucial work to do with respect to the fiscal cliff issue in the next few days. We talked earlier when the majority leader was here about the impact of the budget and taxes, senior citizens not being able to see doctors. It is crucial work, and I continue to be part of that optimists caucus in the Senate, believing we can still find some common ground in these last few days on the fiscal cliff and avoid going over the fiscal cliff. That is crucial work, but striking the right balance between protecting our country and protecting our individual liberties is also important work. For that reason, I wanted to walk through the history of the FISA Amendments Act this morning, describe why it was so important, particularly for us to get even an accounting. Remember, this doesn't disrupt any operations in the intelligence community. This is just an accounting of how many law-abiding Americans had their communications swept up under this law. That work is crucial too. For that reason, I hope that on a bipartisan basis, the amendments will be viewed favorably by the Senate when we begin voting. Thank you for your indulgence for being part of this discussion, presiding in the chair, and with special thanks to the distinguished majority leader who gave me the opportunity to open this discussion about FISA this morning. I yield the floor.

Mr. WYDEN

Mr. WYDEN. I wish to thank the distinguished leader who has been so helpful in ensuring that we have a real debate. With my colleagues' indulgence, my understanding from the leader is we would have 15 minutes on each side at some point in the morning. If we could proceed with what I thought was the direction we were going, I would very much appreciate it. But it should be limited to 15 minutes on each side, pro and con, at some point in the session tomorrow.

Mr. WYDEN. It is fine. Through the Chair, 15 minutes with respect to our side reporting the amendment, 15 minutes on the other side, it will be voted on, and then we go to final passage.

Mr. WYDEN. Madam President, I am going to be very brief in terms of responding to Senator Feinstein, the distinguished chair. First of all, there is no question the chair of the committee is correct that this is a dangerous time. That is specifically why, at page 6 of my amendment on the report, I include a redaction provision. If the President believes that public disclosure of information in the report required by the subsection could cause significant harm to national security, the President may redact such information from the report made available to the public. The bottom line: If the President believes any information that is made public would jeopardize our country at a dangerous time, the President is given full discretion with respect to redaction. Point No. 2. The chair of the committee is absolutely right; this is an important time for national security. It is also an important time for American liberties. We know the people of this country want to strike a balance between protecting our security and protecting our liberties. So under the reporting amendment all we require is, first, an estimate, just the question of an estimate and whether it has been done by any entity with respect to collecting this information--no new work, just a response to the question of whether an estimate has been done. Second, we request information on whether any wholly domestic communications have been collected under section 702, and then we ask whether there have been any backdoor searches under the legislation. Finally, we want a response with respect to what the Director of National Security meant when he said: ``The story that we have millions or hundreds of millions of dossiers on people is absolutely false.'' That is what we are talking about. I think, without that information, oversight in the intelligence field will essentially be toothless. This interrupts no operations in the intelligence field. It does not jeopardize sources and methods. It is, in my view, the fundamentals of doing real oversight. I thank my colleague from Kentucky for giving me this time, and I close by saying: No disagreement with the distinguished chair in the fact that there are real threats to this country's well-being and security, and that is why the President is given complete discretion in order to redact any information that would be made public. I yield the floor, and I thank the Senator from Kentucky for the time.

Mr. WYDEN. Madam President, I believe I control additional time. How much time does our side have remaining?

Mr. WYDEN

Mr. WYDEN. Mr. President, both sides are working to pass the intelligence authorization bill for 2013. I voted against this legislation when it was marked up in committee. I objected to it here on the floor last month. But I am able to support it at this time. The bill has a number of valuable provisions in it, and I thank Chairwoman Feinstein and Vice Chairman Chambliss for making the changes in the bill to address my concerns. The changes Senators Feinstein and Chambliss have made would remove a number of provisions that were intended to reduce unauthorized disclosures of classified information, of course, known as leaks. I objected to these provisions because, in my view, they would have harmed first amendment rights, led to less informed public debate about national security issues, and undermined the due process rights of intelligence agency employees, without actually enhancing national security. I am going to take a few minutes to explain my views on this so that those who are not on the Intelligence Committee and who have not heard this issue addressed before will understand what the debate was about and what I believe has been accomplished. I certainly agree with Senators that unauthorized disclosure of national security information, known as leaks, is a serious problem. Unauthorized disclosure of sensitive information can jeopardize legitimate military and intelligence operations, and even put lives at risk. So I do believe it is appropriate for Congress to look for ways to help the executive branch protect information that intelligence agencies want to keep secret, as long as Congress is careful not to do more harm than good. Personally, I have spent more than 4 years working on the legislation to increase the criminal penalty for those who are convicted of deliberately exposing covert agents, and I was pleased that, with the help of Senators on both sides of the aisle, that legislation was finally signed into law in 2010. So I am all for the Congress recognizing that leaks are a serious problem and for doing things to show the men and women of the U.S. intelligence community that the seriousness of this issue is recognized in this body. It is important for Congress to remember, however, that not everything that is done in the name of stopping leaks is necessarily wise policy. In particular, I think Congress ought to be extremely skeptical of any antileak legislation that threatens to encroach on the freedom of the press or that reduces access to information that the public has a right to know. A number of Senators may be aware that my father was a journalist who reported on national security issues. Among other books, he wrote what has been called the definitive account of the Bay of Pigs invasion, as well as an authoritative account of how the United States came to build and use the first atomic bomb. Accounts such as these are vital to the public's understanding of national security issues. Without transparent and informed public debate on foreign policy and national security topics, American voters are ill-equipped to elect the policymakers who make important decisions in these areas. Congress too would be much less effective in its oversight if Members did not have access to informed press accounts on foreign policy and national security topics. And while many Members of Congress do not like to admit it, Members often rely on the press to inform them about problems that congressional overseers have not discovered on their own. I have been on the Senate Intelligence Committee for 12 years now, and I can recall numerous specific instances where I found out about serious government wrongdoing--such as the NSA's warrantless wiretapping program or the CIA's coercive interrogation program--only as a result of disclosures by the press. With all of this in mind, I was particularly concerned about sections 505 and 506 of this bill because both of them would have limited the flow of unclassified information to the press and to the public. Section 505, as passed by the Intelligence Committee, would have prohibited any government employee with a top secret, compartmented security clearance from ``entering into any contract or other binding agreement'' with ``the media'' to provide ``analysis or commentary'' concerning intelligence activities for a full year after that employee left the government. That provision would clearly have led to less-informed public debate on national security issues. News organizations often rely on former government officials to help explain complex stories or events, and I think it entirely appropriate for former officials to help educate the public in this fashion. I am also concerned that prohibiting individuals from providing commentary could be an unconstitutional encroachment on free speech. For example, if a retired CIA Director wishes to publish an op-ed commenting on a public policy debate, I see no reason to ban that person from doing so even if they have been retired less than a year. This provision also would have said that retired officials who comment in the media would not be able to serve on advisory boards for the intelligence community, which I believe would have deprived the community of valuable knowledge and advice. Section 506 would also have led to a less informed debate on national security issues by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees gave their names and provided the briefings on the record. It seems to me that authorized unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving those briefings. I have seen no evidence that making it harder for the intelligence agencies to provide these briefings will benefit national security in any way. So I see no reason to limit the flow of information in this manner. The third provision I thought was troubling was section 511, which would have required the Director of National Intelligence to establish an administrative process under which he or she and the heads of the various intelligence agencies would have had the authority to take away pension rights from an intelligence agency employee or a former employee. That could be done if the DNI or the agency head determined that the employee knowingly violated his or her nondisclosure agreement and disclosed classified information. I have been concerned that the Director of National Intelligence himself said this provision would not be a significant deterrence to leaks, and that it would neither help protect national sensitive security information nor make it easier to identify and publish actual leakers. Beyond these concerns about the provision's effectiveness, I have also been concerned that giving intelligence agency heads broad new authority to take away the pensions of individuals who have not been formerly convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, particularly when the agency heads themselves have not told Congress how they would interpret and implement the authority. As many of my colleagues will guess, I was especially concerned about the rights of whistleblowers who report waste, fraud, and abuse to the Congress or the inspector general. I have outlined these due process concerns in more detail in the committee report that accompanies this bill. I would just note for a moment that I was particularly concerned that section 511 would have created a special avenue of punishment that only applied to accused leakers who worked for an intelligence agency at some point in their career. There are literally thousands of employees at the Department of Defense, State, and Justice, as well as the White House, who have access to sensitive national security information. I do not see a clear justification for singling out intelligence community employees when there is no apparent evidence these employees are responsible for a disproportionate number of leaks. For what it is worth, Robert Litt, the general counsel for the Director of National Intelligence told the American Bar Association last month that in his view these proposals, ``really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people.'' In summary, I am grateful to the chair of the Intelligence Committee, Senator Feinstein, and vice chairman, Senator Chambliss, for responding to the concerns that I have outlined by removing nearly all of the antileak provisions from this legislation. The provision that remains would require the executive branch to notify the Congress when they classify information to disclose it to the press. I believe this provision will lead to more informed public debate by making it clear to Members of Congress whether particular press reports are based on authorized but unattributed disclosures that we can respond to as we see fit, and unauthorized leaks that would not be responsible for us to confirm or deny. So I believe that particular provision is useful, and I commend the chair and vice chairman for including it. In summary, I think we all understand that in these important intelligence debates--and I remember when the Presiding Officer was on the committee and doing good work--we always understood that it came down to striking a balance. There is something of a constitutional teeter-totter where on one side we have protecting collective security, and on the other said we have the public's right to know and the individual liberties of the American people. As written, as reported by the committee, I believe that legislation would have seriously put out of balance the constitutional ``teeter.'' I think it would have harmed legitimate first amendment rights. I think it would have done damage to the public's right to know. I believe it would have discouraged the ability to ensure that we had a thorough and adequate discussion of issues that are so important for the American people, as the American people look to the Congress of the United States, and particularly this body, to strike the appropriate balance, the right balance, between protecting our country at a time when there are serious threats and, on the other hand, protecting our individual liberties and protecting the public's right to know. With the changes the Chair, Senator Feinstein, and the vice chair have accepted, I believe this legislation now strikes the right balance. With both sides working on an agreement to improve the intelligence authorization bill for 2013 by unanimous consent, it is my hope that legislation will be approved by unanimous consent shortly. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, I rise today to introduce legislation which promotes innovation and the expansion of the digital economy. Every day, each and every American grows increasingly reliant on the Internet. We use it at work, at home at school, and on the go. The Internet has changed the way we communicate, the way we share and speak, and it is transforming our economy. As the Internet becomes increasingly important to American consumers, businesses and innovators, Internet Service Providers, or ISPs, are increasingly imposing caps on the amount of data that consumers may move over the Net. Unfortunately, because of a lack of competition in Internet broadband services, the imposition of data caps raises a public policy concern. Data caps are appropriate if they are carefully constructed to manage network congestion but as the New York Times has editorialized, they ``should not just be a way for Internet providers to extract monopoly rents.'' The imposition of data caps also risks undermining online competition and innovation as the market for digital goods and services expands. In order to empower consumers to better manage their data usage and promote online innovation, I am sponsoring the Data Cap Integrity Act. This bill will give consumers the tools they need to manage their own data usage, institute industry-wide data measurement accuracy standards for ISPs, and impose disciplines to ensure that ISPs' data caps are truly designed to manage network congestion. The Data Measurement Integrity Act requires the Federal Communications Commission, or FCC, to establish standards for how ISPs measure data and make certain that data caps are designed to manage network congestion rather than monetize data in ways that undermine online innovation. Furthermore, this bill ensures that consumers are provided tools to manage their data consumption and that ISPs cannot for purposes of measuring data, discriminate against any content. Internet use is central to our lives and to our economy. Future innovation will undoubtedly require consumers to use more and more data, data caps should not impede this innovation and the jobs it creates. I look forward to working with my colleagues and stakeholders to discuss this legislation, consider improvements to it, and work toward its adoption into law.

Mr. WYDEN

Mr. WYDEN. Mr. President, I rise today to introduce legislation which promotes innovation and the expansion of the digital economy. Every day, each and every American grows increasingly reliant on the Internet. We use it at work, at home at school, and on the go. The Internet has changed the way we communicate, the way we share and speak, and it is transforming our economy. As the Internet becomes increasingly important to American consumers, businesses and innovators, Internet Service Providers, or ISPs, are increasingly imposing caps on the amount of data that consumers may move over the Net. Unfortunately, because of a lack of competition in Internet broadband services, the imposition of data caps raises a public policy concern. Data caps are appropriate if they are carefully constructed to manage network congestion but as the New York Times has editorialized, they ``should not just be a way for Internet providers to extract monopoly rents.'' The imposition of data caps also risks undermining online competition and innovation as the market for digital goods and services expands. In order to empower consumers to better manage their data usage and promote online innovation, I am sponsoring the Data Cap Integrity Act. This bill will give consumers the tools they need to manage their own data usage, institute industry-wide data measurement accuracy standards for ISPs, and impose disciplines to ensure that ISPs' data caps are truly designed to manage network congestion. The Data Measurement Integrity Act requires the Federal Communications Commission, or FCC, to establish standards for how ISPs measure data and make certain that data caps are designed to manage network congestion rather than monetize data in ways that undermine online innovation. Furthermore, this bill ensures that consumers are provided tools to manage their data consumption and that ISPs cannot for purposes of measuring data, discriminate against any content. Internet use is central to our lives and to our economy. Future innovation will undoubtedly require consumers to use more and more data, data caps should not impede this innovation and the jobs it creates. I look forward to working with my colleagues and stakeholders to discuss this legislation, consider improvements to it, and work toward its adoption into law.

Mr. WYDEN

Mr. WYDEN. Mr. President, the job of a county judge in an Oregon county is a tough one. In addition to serving as the chief elected officer and manager of the county, the county judge serves as judge of the probate court and the juvenile court. There is no other elected official in Oregon that demands so much of one person. Pat Shaw, of Gilliam County, has served in this role for 6 years and during this time she has been a superb example of what a county judge ought to be. Pat has administered the county, managing the budget with aplomb. She has gone toe to toe with State and Federal agencies and made tough decisions in juvenile and probate court. No one can claim that her plate has not been overflowing and yet she has always taken time to go the extra mile for her community. Pat has served Gilliam County for 30 years, including 16 years as county assessor. Her colleagues thought so much of her that she was chair of the Oregon Assessors Association for 7 years. She also served a stint as secretary to the Gilliam County Fair Board. Anyone who serves on a fair board knows how tough a job that can be. Pat has also been part of a three-county group, the county judges of Gilliam, Wheeler, and Sherman Counties, which have tackled problems on a regional basis. Together, these counties have been among the best in the State. Gilliam County houses a regional communications system that is the envy of the rest of Oregon. It provides 9-1-1 services and communications to law enforcement throughout eastern and central Oregon. The system, called Frontier TelNet, also provides education and broadband services for their residents. The three counties, along with their education service district, created the communications system because no one else wanted to provide services to these very rural counties. When no one else would help, they stepped up and figured out how to get it up and running. And while Pat wasn't county judge when the system was started, she has been key to keeping it running at such a high level. She has also been in the forefront of bringing wind energy to Gilliam County, and working to improve her county's economy, education and public safety. Pat is not retiring because she is tired of serving Gilliam County. Oregon requires judges to retire at age 70. As a county commissioner, she could serve as long as the voters wished her to serve, but because she has judicial duties, Oregon law requires her to step down. In this case, that is a shame. In Pat Shaw, we have the very definition of what a public servant should be. Gilliam County and I will miss her as a county judge, but I am sure Pat will find some other way to continue in public service.

Mr. WYDEN

Mr. WYDEN. Mr. President, consistent with Senate standing orders and my policy of publishing in the Congressional Record a statement whenever I place a hold on legislation, I am announcing my intention to object to any unanimous consent request to proceed to and pass S. 810, the Great Ape Protection and Cost Saving Act. Oregon is home to one of the eight National Institutes of Health, NIH-supported National Primate Research Centers, and it is already subject to strong local and national oversight to ensure the highest quality and ethical care for animals. These Centers provide outstanding research and powerful research tools that are vital to our understanding of human health and disease and hold enormous potential for finding treatments for life-threatening disorders. While ensuring the highest quality and ethical care for animals is of utmost importance, there is already significant oversight and regulation of these facilities. In addition to meeting the high standards required by NIH to obtain and retain Federal health research dollars, centers are also already responsible for meeting the lengthy, detailed and often-updated Federal requirements within the Animal Welfare Act. Facilities are subject to thorough, regular, and unannounced inspections by U.S. Department of Agriculture, USDA, Animal and Plant Health Inspection Services and are subject to regulations from the Public Health Service, PHS, and Food and Drug Administration, FDA. Experiments must also be approved by the Institutional Animal Care and Use Committee, IACUC, at the Institution where the scientist works before research can begin. While I support protecting animals from unethical and inhumane treatment, the NIH is in the process of reviewing and implementing related recommendations from the Institute of Medicine. At this stage, passing legislation would circumvent this ongoing process. For this reason, I object to the Senate taking up and passing S. 810.

Mr. WYDEN

Mr. WYDEN. Mr. President, I wish to commend Chairman Levin, who has brought his usual thoughtful approach to these issues, and to thank him for his help specifically in two areas in which I have been interested. I also see my friend Senator McCain. He and I have worked often on these and other matters, and I thank him for his wise counsel as well. Mr. President, as I indicated, I am going to talk briefly on two amendments in which I have a special interest. The first is the amendment of Senator Udall to strike section 313 of the bill. As a member of the Senate Committee on Energy and Natural Resources, I have followed closely the proposition that the Department of Defense is the single largest user of energy in the United States, with annual fuel expenditures in excess of $16 billion. This is an extraordinary thirst the Department of Defense has for energy. It creates a host of issues for the Pentagon, and fluctuations in global energy prices can have dramatic effects on defense spending. For every $10 increase in a barrel of oil, it costs the American military annually an extra $1.3 billion. Recognizing the potential instability DOD's current energy needs can cause, military experts from across the various branches of the armed services have begun looking at ways to cut energy use and find energy alternatives. I continue to hear all of this discussion about how this is somehow a ``green agenda,'' that it is a subversive plot and that it is being forced upon a resistant Pentagon. I would like to take a minute or two to say that I don't think anything could be further from the truth, and I wish to describe for a moment why I feel that way. First, those who oppose defense energy initiatives often argue that in today's fiscal environment, the country can't afford to waste money on energy programs when it is necessary to provide for our Nation's security. I don't believe it is an either/or proposition because my view is that an investment in energy efficiency and energy self- sufficiency is hugely important to protecting our country's national security in a dangerous time. I have heard some argue that military research, development, and testing of alternatives to oil-based fuels is a ``misplacement of priorities,'' but this argument is based largely on the proposition that biofuels currently cost more per gallon than petroleum. But the reality is that the makers of biofuels have not reached full-scale production, and the Department of Defense contracts include research and development costs. So any attempt at a gallon-to-gallon analysis of biofuels versus petroleum is really what I would call an apples-to- oranges comparison. The fact is that DOD investments in biofuels development have resulted in a cost-per-gallon reduction--a cost-per- gallon reduction of 94 percent in just the last 3 years. Bloomberg New Energy Finance analysts predict that some aviation biofuels will be cost-competitive with standard jet fuel by 2018, given the continuation of current rates of development. So in about 5 years, the American biofuels industry could produce fuel for our military aircraft and vehicles at a cost equal to that of foreign oil. The Truman National Security Project recently held a press call with retired generals, and one in particular was quoted as saying the following: Moving away from oil . . . ensures we remain the most capable and effective fighting force on the planet. . . . And this is what this is all about. This is not about politics or saving polar bears. It is about being effective as a fighting force. Those are not my words but the words of an important retired general. So that is what this boils down to, in my view--having the most effective fighting force and being in a position to save the lives of our servicemembers. I know there is going to be a fair amount of discussion throughout the debate on this bill about this issue, but I continue to believe that energy efficiency and energy self-sufficiency increase our national security. I hope my colleagues will support the Pentagon's alternative energy efforts and vote for Udall amendment No. 2985. Briefly, I wish to turn my attention to the other amendment I have, and I again thank Chairman Levin and Senator McCain for giving me this opportunity to speak. This morning the Associated Press reported that Iraq war contractor Kellogg Brown & Root has sued the Federal Government to pay the $85 million in damages KBR owes soldiers sickened because of KBR's negligence. This case started in 2003 when members of the Oregon National Guard were assigned to provide security for contractors from KBR in Iraq at the Qarmat Ali water treatment facility. These soldiers and others were exposed to dangerous levels of chemicals, including sodium dichromate, which contains hexavalent chromium, one of the most carcinogenic chemicals on Earth. A group of the exposed soldiers sued KBR based on the evidence indicating KBR managers were aware of the presence of the dangerous chemicals but failed to warn the soldiers working in and around the plant. A jury recently agreed that KBR was negligent and awarded the soldiers $85 million in damages, and more of the affected soldiers also have lawsuits pending, so the damage awards, in my view, are likely to increase significantly. However, a recently declassified indemnification provision in the contract between KBR and the U.S. military for work in Iraq passed all financial liability for misconduct from KBR to U.S. taxpayers, even in cases of--and I want to emphasize this--willful misconduct by KBR. These provisions also provided for unlimited reimbursement of legal costs incurred by KBR. In effect, the company--KBR--was handed a blank check drawn on the American taxpayer, and yesterday the company went to court to cash that check. My amendment would prevent DOD from putting the American taxpayer on the hook for the negligence of contractors without notifying Congress. Our soldiers know when they sign up that they are putting their lives on the line, but they expect their commanders and the contractors working beside them to not expose them to unnecessary risk. Both the DOD inspector general and a jury have confirmed what Oregon soldiers and I and other members of the Oregon congressional delegation have been saying for years--that KBR failed to protect our soldiers from a known threat. We can't know if the fact that KBR had basically a get-out-of-jail-free card caused them to be negligent, but what we do know is we shouldn't let this happen again. My amendment was debated as part of the last DOD authorization bill, and my understanding is that it was actually acceptable to both sides, but we weren't able to get it into the final bill. I hope now, especially in light of today's news right over the wire services this morning, we can agree to include this amendment before more of our brave men and women in uniform are harmed by the actions of negligent contractors who then try to pass the buck to American taxpayers. I again thank Chairman Levin and his staff for their leadership, and I look forward to working with them, particularly on this amendment here this afternoon. With that, Mr. President, I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent that LTC Matt Groves, a Department of Defense fellow assigned to my office, be granted the privilege of the floor for the remainder of debate on S. 3254, the National Defense Authorization Act.

Mr. WYDEN

Mr. WYDEN. Mr. President, at the end of this year the smallest county in Oregon is going to lose its biggest asset. Wheeler County Judge Jeanne Burch is retiring only because of Oregon law, which requires judges to retire at a certain age. In this case, the law is depriving my State of an exemplary public servant. When she was appointed county judge in 1994, Wheeler County was close to bankruptcy. Since then, thanks to her leadership and perseverance, the county has been pulled back from the brink of insolvency. The county has also renovated its beautiful and historic courthouse and built a new family services center. Judge Burch helped bring cell phone service to this remote area of Oregon. She serves on the Frontier TeleCom Network, which provides emergency communications for many counties in Central Oregon, and the Telecommunications Committee for Association of Oregon Counties. Earlier this year, she was appointed to the Oregon Commission for Women, and is now its vice chair. She is the only member of the commission from east of the Cascade Mountains. Concerned about the growing epidemic of obesity, Judge Burch joined in an effort to make Fossil ``The Biggest Loser.'' Patterned after a popular television show, 20 percent of Fossil's 450 residents collectively lost 600 pounds to a successful effort to become healthier, eat better, and be more active. On a personal note, Jeanne Burch has become a valued friend. When I first ran for the U.S. Senate in 1996, I promised the people of Oregon that I would hold a town meeting in each of the State's 36 counties every year. On a wintery day in February 1996 I began fulfilling that promise by holding my first town hall in Wheeler County. From that cold day 16 years ago when I arrived in Fossil until now, Jeanne Burch and the people of her county have always given me a warm welcome. For several years after that, I made it a practice to hold my first town meeting of each year in Wheeler County. A few years ago when snow storms made getting to Fossil impossible, Judge Burch and the other members of Wheeler County Court gave me a special dispensation by passing a resolution releasing me from my commitment to hold the year's first town meeting in Wheeler County. When I held my 500th town hall in 2009 it was in Wheeler County and Judge Burch made sure that most of the town turned out. She did the same thing last year for my 600th town hall on a warm summer night on the front lawn of the courthouse she helped restore. For 18 years, Judge Jeanne Burch has been the steady hand of county government, a good friend, a wise steward, and the gold standard for what a good elected official ought to be. We will miss her as a county judge, but I know that when I return to Wheeler County next year for another town hall, she will be there for me as she always has been.