[国会记录第161卷第71号(2015年5月11日星期一)][参议院][Page .S2744[英语背诵文选推动立法和共和党优先事项里德先生。总统先生，我必须就我的朋友共和党领袖所发表的一些声明发表评论。[．..我们还有《外国情报监视法案》，简称FISA。它将于6月1日到期。它必须得到扩展和改革。上周，美国第二巡回上诉法院(Second Circuit Court of Appeals)裁定，目前建造的大量收集项目没有得到现行法律的授权——这意味着该法律是非法的。如果国会仅仅重新授权而不进行改革，那将是不负责任的。我们怎么能重新授权非法的东西?我们不能。 We shouldn't. Why would anyone agree to reauthorize a program which our circuit courts deem to be illegal? My friend the majority leader keeps talking about extending the program for 5\1/2\ years. Extending an illegal program for 5\1/2\ years? That is not sensible. What should happen is that we should move forward and do something that is needed here; that is, do it all over again. The House of Representatives is sending us on Wednesday a new FISA bill, one that has been vetted by those people concerned about the rights of our citizens. They have determined that what the House has done is good. They have passed it out of committee 25 to 2. Senator Leahy has a bill over here that is almost identical to that bill. So I can't understand why we just don't wait until the House sends us that bill and we turn around immediately and give it to the President as passed by the House of Representatives. The President will sign it. He realizes the program has to be changed. We cannot reauthorize a program that is illegal. So I hope we can move forward on what the House has done. To his credit, Senator Leahy is not saying: We have to have my bill. He is saying: If we don't do my bill--Senator Leahy's bill--pass the House bill. That would be good. This is the only bipartisan, bicameral solution we have today that will end the illegal bulk collection program in its current form and reform and reauthorize key provisions of FISA. Otherwise, I am not the only one, Mr. President. I was told walking over here that the junior Senator from Kentucky is not going to let the extension of FISA take place. So why don't we just go ahead and get it done now; that is, when the House sends us their bill, say we are going to pass that and send it to the White House for signature. I hope the majority leader will reassess his priorities and instead choose to protect Americans' civil liberties. What is the business of the day, Mr. President? ____________________ [Congressional Record Volume 161, Number 71 (Monday, May 11, 2015)] [Senate] [PagesS2751-S2753]美国自由法莱希先生。总统先生，《美国爱国者法案》第215条几周后到期。李议员和我有一个两党法案，即《美国自由法案》，该法案将终止使用第215节授权大量收集美国人的电话记录，并以一个更有针对性的计划取而代之。它还将实施其他重要改革，以提高政府监督的问责制和透明度。众议院议长将于周三在众议院提出同样的法案进行表决。上周，一些反对者来到会场表达他们的反对意见。他们声称，结束这一大规模收集计划将在某种程度上危及我们的国家安全，而像这样的大规模收集计划本可以在某种程度上防止9·11袭击。但事实并非站在他们一边。根据最近一篇全国性杂志的头条报道，这些改革的反对者提出了“为国家安全局的监视辩护的可疑主张”。我同意这些主张是可疑的，我想澄清一下。我请求大家一致同意将2015年5月8日的《国家期刊》报道以及民主与技术中心对类似主张的分析印在记录中。一位参议员上周在参议院发言时说，“如果这个计划在9/11之前就存在，我们很可能知道9/11劫机者Khalid Al-Mihdhar当时住在圣地亚哥，正在给也门的基地组织藏身处打电话。“另一个似乎暗示大规模收集计划将“阻止9/11”。”当我在上一届国会担任主席时，参议院司法委员会举行了六次听证会，审查有关政府监视活动的披露。在其中一次听证会上，我问9月11日在布什政府工作的前反恐官员理查德·克拉克，美国国家安全局的批量收集计划是否能够阻止这些袭击。他作证说，政府掌握了防止袭击所需的信息，但未能在联邦机构之间适当地共享这些信息。参议员鲍勃·格雷厄姆（Bob Graham）作为参议院情报委员会负责人调查了911袭击事件，同样，他说“联邦调查局和情报机构在不依赖元数据系统的情况下有很多机会找到米哈德。”另一个在过去几天反复提出的说法是，正如一位参议员所说，大量收集美国人的电话记录是“非常有效地保护美国的安全”。另一位人士说，《美国自由法》将“消除该计划收集的基本情报”。但许多国家安全专家也得出结论，美国国家安全局的大量收集计划对国家安全不是必不可少的。包括两名前国家安全官员在内的总统情报和通信技术审查小组，声明：通过使用第215节电话元数据为恐怖分子调查提供的信息对防止攻击不是必不可少的，可以通过使用常规的第215节命令及时获得。前中央情报局代理局长迈克尔·莫雷尔（Michael Morell）向参议院司法委员会作证说，审查小组建议政府停止收集这些数据，转而允许政府搜索电信提供商持有的电话记录，这不会给政府增加重大负担。这正是我们两党合作的《美国自由法案》的方针。去年，国家情报局局长和总检察长支持了《美国自由法》的前一版本，该法案也根据第215条终止了批量收集，并以一个更有针对性的电话记录计划取代。司法部长和国家情报局局长说，我们的法案“保护情报界的基本能力”。这些人在国家安全问题上不是新手。他们了解我们国家面临的威胁。他们没有政治动机。他们告诉我们，我们可以结束对无辜美国人电话记录的拉网式收集，维护我们国家的安全，这符合我们国家的最大利益和价值观。《美国自由法》并不仅仅是根据第215条终止NSA的批量收集计划。它还填补了我们情报能力的其他空白。它确保政府在紧急情况下能够快速获取业务记录，包括电话记录。它确保如果构成严重威胁的外国恐怖分子进入美国，政府在寻求司法部长的紧急窃听授权时不必停止监视。它确保政府无需终止FISA对暂时在美国境外旅行的外国人的监控。它确保了FBI拥有tools it needs to investigate individuals who are facilitating the international proliferation of weapons of mass destruction on behalf of a foreign government or terrorist organization. These provisions were requested by the FBI and by the House Permanent Select Committee on Intelligence. They were not part of the bill that was filibustered in the Senate in November. As a final matter, it is notable that there has been not a single Senate committee hearing on surveillance reform or the expiring provisions in the 5 months of this new Congress under Republican leadership. There has been zero committee consideration on the bill that Senator McConnell has now brought directly to the Senate calendar that would simply extend these [[Page S2752]] expiring provisions. I recall the promises that under new leadership the committees would work through regular order, but that has not occurred even though it was apparent to all last year that we would need to grapple with long-overdue reforms. This lack of leadership or any committee process is also despite the fact that the leader and chairmen of the relevant committees would not even let us debate the USA FREEDOM Act last year, in part because it had not gone through committee. As the process moves forward this year, we should not be hearing complaints about lack of process from those who did not provide it. There is no question that the USA FREEDOM Act contains far-reaching surveillance reforms. But the most high-ranking intelligence officials in the country have endorsed its approach because it is a responsible bill. It protects Americans' privacy and keeps them safe. The Senate should take up the bill once the House passes it this week. There being no objection, the material was ordered to be printed in the Record, as follows: [From National Journal, May 8, 2015] Republicans Make Dubious Claims in Defense of NSA Surveillance Mitch McConnell and his cohort of security hawks are stopping at nothing to renew the spy agency's phone dragnet. But how fair is their defense? (By Dustin Volz) One by one, several powerful Republican senators took to the floor Thursday morning to offer one of the most full- throated defenses of the National Security Agency's bulk collection of billions of U.S. phone records since Edward Snowden exposed the program nearly two years ago. The crux of their argument is unmistakable: The NSA's expansive surveillance powers need to remain intact and unchanged to keep Americans safe from potential terrorist threats--and if these powers existed before Sept. 11, 2001, they may have assisted in preventing the attacks on the World Trade Center and the Pentagon. But some of the talking points used by Senate Majority Leader Mitch McConnell and his allies appear to rely heavily on assertions that are either dubious in their veracity or elide important contextual details. Here is a review of some of their declarations: Claim: ``Not only have these tools kept us safe, there has not been a single incident, not one, of intentional abuse of them.''--McConnell McConnell may have been referring specifically to the phone records program here, but the NSA does not, as he implies, have a spotless record. According to a 2013 inspector general report, NSA analysts intentionally misused foreign surveillance authorities at least a dozen times in the past decade, sometimes for the purpose of spying on their romantic interests. So-called ``loveint''--short for ``love intelligence''--was revealed by the inspector general in response to a letter sent from Republican Sen. Chuck Grassley, who this year renewed a call for the Justice Department to provide an update on how it was handling its investigation into the alleged willful abuses and to ``appropriate accountability for those few who violate the trust placed in them.'' Additionally, a 2012 internal audit obtained by The Washington Post found that the NSA has violated privacy restrictions set in place for its surveillance programs thousands of times each year since 2008. The audit found that most--though not all--infractions were unintended. Claim: ``The compromise legislation rolls us back to the same thing we were doing pre-9/11.''--Senate Intelligence Chairman Richard Burr The USA Freedom Act referenced by Burr would reauthorize three key surveillance provisions under the post-9/11 Patriot Act. It would usher in several reforms related to transparency and oversight, but it would keep those authorities intact. Section 215 of the law would no longer allow for the bulk collection of U.S. phone metadata by the NSA, but the authority--created after 9/11--would still exist. Claim: ``The alternatives to the current program would not come close to offering the capabilities that now enable us to protect Americans.''--Sen. Tom Cotton Cotton's claim does not align with the stance of Director of National Intelligence James Clapper and then-Attorney General Eric Holder, who sent a letter to lawmakers last year expressing their support for an earlier iteration of the Freedom Act. ``The intelligence community believes that your bill preserves essential intelligence-community capabilities; and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency,'' the letter read. That version of the Freedom Act is widely considered more limiting of surveillance powers than the one being debated in Congress this year. Claim: ``One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible.''--Cotton The reliance on phone companies to retain call data already occurs, as they are the ones who turn the records over to the government in bulk. Cotton, who voted for a pared down iteration of the Freedom Act last year when he served in the House, cites an 85-page study from the National Research Council to support this assertion. But the Arkansas freshman appears to be conflating its findings, which dealt with whether software could fully replace bulk collection, with what backers of the Freedom Act are attempting to do. ``Although no software can fully replace bulk with targeted information collection, software can be developed to more effectively target collection and to control the usage of collected data,'' the report concluded. Cotton's reservations--that the new system may take longer than the old--have more to do with process than technological capabilities. Claim: ``Here's the truth. If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker Khalid al-Mihdhar was living in San Diego and making phone calls to an al-Qaida safehouse in Yemen. There's no guarantee we would have known. Theres no way we can go back in time and prove it, but there is a probability that we would have known and there's a probability that American lives could have been saved.''-- Sen. Marco Rubio. Rubio hedges his language several times with this claim, but the statement still omits important context. As reported by a 2013 ProPublica investigation, ``U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al-Mihdhar, long before 9/11 and had the ability find him, but they failed to do so.'' Such missed opportunities to disrupt Midhar's activities, which were being monitored by at least as early as 1999, reflect a failure of information sharing among intelligence agencies, ProPublica notes, and are described in detail in the 9/11 Commission report. ____ Senators' Questionable Claims About NSA Bulk Collection Center for Democracy & Technology On May 7th, 2015, the Second Circuit issued a ruling that declared the NSA's bulk collection of Americans' phone records was clearly unlawful under the Section 215 of the PATRIOT Act. The ruling provided another boost to supporters of surveillance reform and the backers of the USA FREEDOM Act. Hours after the ruling came down, several U.S. Senators--Mitch McConnell, Richard Burr, Tom Cotton, Jeff Sessions, and Marco Rubio--took to the Senate Floor to forcefully defend the NSA's bulk collection program. The Senators made some statements that merit a second look, and serious skepticism. Claim 1: The NSA's bulk collection of Americans' phone records is essential to national security. ``Under consideration in the House and proposed in the Senate is the socalled USA FREEDOM Act, which will eliminate the essential intelligence this program collects.''--Senator Tom Cotton The weight of public evidence contradicts this claim, based on statements from experts with access to classified intelligence: The Attorney General and the Director of National Intelligence stated that the USA FREEDOM Act of 2014--which is in all ways identical to or less restrictive of surveillance than the 2014 bill--``preserves essential Intelligence Community capabilities'' though the bill ``bans bulk collection under a variety of authorities.'' The President's Review Group noted in 2014 that the bulk collection program yielded information that was ``not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.'' The Privacy and Civil Liberties Oversight Board stated in 2014: ``Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.'' Senators Wyden, Heinrich, and Udall said in 2013 ``[We] have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans' phone records has provided any intelligence of value that could not have been gathered through less intrusive means.'' It's important not to conflate the value of Sec. 215 overall with the effectiveness of the use of Section 215 for bulk collection. Sec. 215 can be used for targeted--not just bulk--data collection. The USA FREEDOM Act ends nationwide bulk collection under Sec. 215, but preserves the government's ability to use Sec. 215 for more targeted collection. What is at stake with USA FREEDOM is not Sec. 215 itself, but its continued use for bulk domestic surveillance. Claim 2: The bulk collection program could have stopped 9/ 11. ``Here is the truth. If this program had existed before 9/11, it is quite possible we would have known that 9/11 hijacker Khalid Al Mihdhar was living in San Diego and was making phone calls to an Al [[Page S2753]] Qaeda safe house in Yemen.''--Senator Marco Rubio A bulk collection program was not necessary to find Al Mihdhar prior to 9/11. As the PCLOB report details, the NSA had already begun intercepting calls to and from the safe house in Yemen in the late 1990s. Since the government knew the number of the safe house, and Al Mihdhar was calling that number, it would only be necessary to collect the phone records of the safe house to discover Al Mihdhar in San Diego. This is, in fact, an example of how targeted surveillance would have been more effective than bulk collection. The 9/11 Commission Report and other sources note that the CIA was aware of Mihdhar well before the attack and missed multiple opportunities to deny him entry to the U.S. or intensify their surveillance of him. Claim 3: Bulk collection of phone records is the same as a subpoena. ``This is the way the system works and has worked for the last 50 years--40 years at least. A crime occurs. A prosecutor or the DEA agent investigates. They issue a subpoena to the local phone company that has these telephone toll records--the same thing you get in the mail--and they send them in response to the subpoena.''--Senator Jeff Sessions The Second Circuit opinion, which held that the bulk collection program is unlawful, included a lengthy comparison of subpoenas and the bulk collection program. The bulk collection program encompasses a vastly larger quantity of records than could be obtained with a subpoena. The Second Circuit notes that subpoenas typically seek records of particular individuals or entities during particular time periods, but the government claims Sec. 215 provides authority to collect records connected to everyone--on an ``ongoing daily basis''--for an indefinite period extending into the future. Claim 4: The government is only analyzing a few phone records. ``The next time that any politician--Senator, Congressman--talking head, whoever it may be, stands up and says ``The U.S. Government is [. . .] going through your phone records,'' they are lying. It is not true, except for some very isolated instances--in the hundreds--of individuals for whom there is reasonable suspicion that they could have links to terrorism.''--Senator Marco Rubio The NSA's telephony bulk collection program collects the phone records of millions of Americans with no connection to a crime or terrorism. These records are stored with the NSA and they are analyzed scores of times each year when the NSA queries the numbers' connection to the phone numbers of suspects. Moreover, until 2014, when the NSA suspected a phone number was connected to terrorism, the NSA analyzed the phone records ``three hops'' out--querying those who called those who called those who called the original suspect number. As a result, the PCLOB estimated, a single query could subject the full calling records of over 420,000 phone numbers to deeper scrutiny. In 2014, the President limited the query to ``two hops''--though this can still encompass the full call records of thousands of phone numbers. The USA FREEDOM Act (Sec. 101) would authorize the government to obtain ``two hops'' worth of call records from telecom companies. Claim 5: The USA FREEDOM Act threatens privacy by leaving phone records with telecom companies. ``[T]he opponents of America's counterterror programs would rather trust telecommunication companies to hold this data and search it on behalf of our government. [. . .] In addition to making us less safe, the USA FREEDOM Act would make our privacy less secure.''--Senator Mitch McConnell The telecom companies already have the phone records since the records are created in the normal course of their business. The USA FREEDOM Act does not shift control of data from NSA to telecoms; the bill limits the volume of what the government can collect from companies with a single 215 order. Keeping the records with the phone companies, as the USA FREEDOM Act would require, does not create a new privacy intrusion, or, according to the public record, pose new security risks. In contrast, it is highly intrusive for the government to demand companies provide a copy of the communication records of millions of Americans on a daily basis to a secretive military intelligence agency for data mining. One last important point: The discussion on the Senate Floor centered exclusively on the bulk collection of phone records. However, the debate and the legislation before Congress are not just about one telephony metadata program. The debate is over whether the government should have the authority to collect a variety of records in bulk under the PATRIOT Act. The government has claimed that its bulk collection authority extends to any type of record that can reveal hidden relationships among individuals--which could include phone call, email, cell phone location, and financial transaction records. Framing the issue in terms of phone records makes the problem seem much smaller than it is, especially as our society moves into a technology-enabled future where each individual will create much more metadata and digital records than the present. The stakes are high. ____________________