No one disputes the vital importance of our national security. Indeed, in Federalist No. 41, James Madison noted that “[s]ecurity against foreign danger is one of the primitive objects of civil society,” and he emphasized that such security “is an avowed and essential object of the American Union.” Government officials have a solemn duty—particularly in an age of global terrorism—to help ensure that the American people are safe and secure.
Yet at the same time, government exists to do more than promote security. Its most fundamental purpose is to protect our natural and inalienable liberties. Safeguarding individual rights and liberties is the bedrock of American government. In the words of our nation’s founding document, the Declaration of Independence, it is “to secure these rights [that] Governments are instituted among Men.”
In our quest for ever-greater security, we must be mindful not to sacrifice the very rights and liberties that make our safety valuable. As Benjamin Franklin put it: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” (Memoirs of the Life and Writings of Benjamin Franklin, p.142).
I worry that in seeking to achieve temporary safety, some of the authorities we have given the government under FISA may compromise essential rights and liberties. In particular, I am concerned about the government’s ability—without a warrant—to search through FISA materials for communications involving individual American citizens. I worry that this authority is inconsistent with and diminishes the essential constitutional right that each of us has “to be secure . . . against unreasonable searches and seizures.”
We don’t know the precise number of communications involving American citizens that the government collects, stores, and analyzes under Section 702 of FISA. Whether this number is large or small, I believe we must enforce meaningful protections for circumstances when the government searches through its database of captured communications looking for information on individual American citizens. Otherwise, by means of these so-called “backdoor” searches, the government may conduct significant warrantless surveillance on American persons. I believe this current practice is inconsistent with core Fourth Amendment privacy protections and must be reformed.
During consideration of FISA in the Judiciary Committee, Senator Durbin and I introduced a bipartisan amendment to address this problem. The language of our amendment is identical to that offered by Senators Wyden and Udall (CO) during consideration of FISA by the Select Committee on Intelligence. The amendment clarifies that Section 702 does not permit the government to search its database of FISA materials to identify communications of a particular United States person. In effect, it would require the government to obtain a warrant before performing such queries involving an American person’s communications.
The amendment is limited in scope. It excludes from the warrant requirement instances where the government has obtained an emergency authorization, circumstances when the life or physical safety of the American person targeted by the search is in danger and the search is for the purpose of assisting that person, and instances where the person has consented to the search. Moreover, the warrant requirement would apply only to deliberate searches for Americans’ communications, and would not prevent the government from reviewing, analyzing, or disseminating any American communications collected under FISA and discovered through other types of analysis.
FISA rightly requires that the government obtain a warrant any time it seeks to conduct direct surveillance on a U.S. person. Indirect surveillance of U.S. persons by means of backdoor searches should be no different. No one disputes that the government may have a legitimate need to search its FISA database for information about a U.S. person. But there is no legitimate reason why the government ought not first obtain a warrant by articulating and justifying the need for its intrusion on the privacy of U.S. persons. Our constitutional values demand nothing less.
Unfortunately, we won’t be voting on such an amendment later today. So our reauthorization of FISA will include a grant of authority for the government to perform backdoor searches seeking information on individual American citizens without a warrant. I believe such searches are inconsistent with fundamental Fourth Amendment principles. For this reason, I cannot support the FISA reauthorization and urge my colleagues to oppose the bill in its current form.
(To require declassification of significant FISA Court opinions)
Mr./Madam President, I would next like to speak on the Merkley-Lee Amendment to require declassification of significant FISA Court opinions.
The FISA Court is authorized to oversee requests for surveillance both inside and outside the United States. Given the sensitive nature of these requests, it is necessarily a “secret court” whose rulings, orders, and other deliberations are classified. Yet, although much of the Court’s work must be kept confidential, it must not operate without meaningful oversight.
Beyond the straightforward application of the law to specific (and highly classified) circumstances, FISA Court rulings may include substantive interpretations of governing legal authorities. As is true of every court called on to construe statutory text, FISA Court interpretations and applications are influential in determining the contours of the government’s surveillance authorities. Unlike specific sources of information or particular methods of surveillance collection, which are rightly classified, I believe that the FISA Court’s substantive legal interpretation of statutory authorities should be made public. A hallmark of the rule of law—which is a bedrock principle to which our nation is dedicated—is that the requirements of law be made publicly available.
The Merkley-Lee amendment establishes a cautious and reasonable process for declassification consistent with the rule of law. Its procedures are limited in three key respects. First, the pathway for declassification applies only to the most important decisions that include “significant construction or interpretation” of the law. Second, declassification must proceed “in a manner consistent with the protection of national security, intelligence sources and methods, and other properly classified and sensitive information.” Third, the process contemplates instances where the Attorney General determines that declassification is not possible in a manner that protects national security. In such cases the process requires only an unclassified summary opinion or a report on the opinions that remain classified.
This modest and bipartisan amendment will help ensure that we are governed by the rule of law—that government activities are made by applying legal standards known to the public and that we remain, in John Adams’s famous formulation, “a government of laws and not of men.” (Massachusetts Constitution, Art. XXX (1780)).
(To require a report on the privacy impact of FISA surveillance)
Mr./Madam President, I would like next to speak on the Wyden amendment to require a report on the privacy impact of FISA surveillance.
The FISA Amendments Act of 2008 gave the government broad authority to surveil the phone calls and emails of people reasonably believed to be foreigners outside the United States. Despite the intent that this authority be directed at non-citizens who are located abroad, officials have acknowledged that communications by Americans may be swept up in the government’s collection of FISA materials.
I believe it is critical for both Congress and the public to have access to information about the impact of these FISA authorities on the privacy of individual Americans. Only with such knowledge can we reasonably assess whether existing privacy protections are sufficient or whether reforms are needed. Yet senior intelligence officials have declined to provide in a public forum the information necessary to such discussion and analysis.
In particular, it is essential that we learn the extent to which Americans’ communications are collected under FISA, whether this includes any wholly domestic communications, and whether government officials subsequently search through such communications and conduct warrantless searches of phone calls and emails related to specific Americans.
This modest and commonsense amendment requires the Director of National Intelligence to provide this information and report to Congress regarding the privacy impact of the FISA Amendments Act. Given the sensitive nature of this information, our amendment provides for necessary redactions to protect core national security interests.
Providing Congress with answers to these critical questions should be uncontroversial. Only with such information can we do our job of ensuring a proper balance between intelligence efforts and the protection of fundamental individual rights and liberties.
(To requiring consent or warrant before government may obtain information from third party)
Finally, Mr./Madam President, I would like to speak on the Paul amendment—the Fourth Amendment Preservation and Protection Act.
The Fourth Amendment protects “the right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures.” At its core, the Constitution protects our right to be free from unwanted government intrusion in our affairs absent probable cause, which the government much set forth with specificity, to a court, in an application for a warrant.
It is undisputed that—absent exigent circumstances, consent, or a warrant—the government may not intrude upon a person’s home and search through his papers and personal effects. But we no longer keep our most sensitive information solely in papers in our homes. The explosion of data sharing and data storage has made our economy more responsive and efficient. But it also creates the potential for government abuse.
Congress has a fundamental responsibility to protect individual liberty by ensuring that the Constitution’s core Fourth Amendment protections are not eroded by changed circumstances. But Congress has failed to do so. Some court rulings have likewise fallen short of protecting the full scope of the Fourth Amendment as it applies to our world of complex data sharing. Courts have attempted in good faith to determine whether individuals have a reasonable expectation of privacy in different kinds of information they might share with third parties. But the result of these rulings is a varied and unpredictable legal landscape in which many do not know whether they can rely on the Fourth Amendment to protect sensitive information they routinely share with others for a limited business purpose.
Congress must act to preserve the Fourth Amendment’s protections as they apply to everyday uses, including routine use of the Internet, credit cards, libraries, and banks. Absent such protection, individuals may in time grow wary of sharing information with third parties.
I am cognizant that this area of law is complex and full of challenges. Much work remains to ensure that Fourth Amendment protections do not interfere with legitimate law enforcement and national security activities. But we must not shy away from the task simply because it is daunting. Congress must act to preserve Americans’ constitutional right to be “secure in their persons, papers, and effects, against unreasonable searches and seizures.”