[国会记录卷166，第91（星期四，2020 5月14日）] [参] [页数S2432-S2441]立法SESSION ______ 2020美国自由重新授权法案 - 续会议主持。按照以前的订单，参议院将继续H.R. 6172，其店员将报告的审议。高级助理法律职员如下：清单（H.R. 6172）修订的1978年外国情报监视法案禁止生产的某些业务记录，以及用于其他目的。主持会议的官员。多数鞭子。[...] H.R. 6172图恩先生。主席女士，除了我们应对流感大流行，参议院也集中在其上美国人民都是靠我们照顾的其他优先事项 - 在政府的资助，以保护我们的国家。本周，参议院正在立法以重新批准外国情报监视法三种过期的条款，包括允许联邦调查局窃听独狼恐怖分子提供 - 不与特定的恐怖组织，恐怖分子下属 - 和粗纱窃听规定防止联邦调查局不必寻求新的窃听每次保证一个恐怖分子嫌疑改变了他的电话号码。这些规定失效三月，之后众议院受阻这是在参议院一致通过了一项临时延长，使执法和情报官员没有在他们的反恐斗争的重要工具。 I expect the Senate will pass this bill today, and I hope the House will move quickly to send it to the President's desk. Every day, our law enforcement and intelligence personnel are engaged in the difficult and, at times, dangerous work of tracking terrorist threats. We need to make sure they have the tools they need to do their jobs and to keep Americans safe. The bill before us combines extensions of these key anti-terrorism tools with new accountability measures that will ensure that law enforcement is held to the highest standards when pursuing surveillance of suspected terrorists and foreign agents. I urge my colleagues to support this legislation when we vote on it later today. [...] Mr. UDALL. Mr. President, I wanted to start by stating that I know a lot of people look at us speaking on the floor and think, you know, well, why aren't they wearing masks? I saw Senator Schumer. He put on his mask after he finished his talk and left. I have my mask here. I just took it off. I am going to put it on after I finish speaking. You know the way this works. I wear this mask to protect you, and you wear a mask to protect me, and that is the way we protect each other in this pandemic. I don't think there is any doubt that wearing a mask saves lives, and that is how we are going to overcome in this pandemic. I see people around New Mexico all the time when I am back home wearing masks and really taking this pandemic seriously and taking our Governor's orders seriously. H.R. 6172 Mr. President, reauthorization of the Foreign Intelligence Surveillance Act, or FISA, is now before us. We have an opportunity to reform this statute, to protect both our constitutional rights and our security. In the immediate aftermath of 9/11, Congress hurriedly passed the PATRIOT Act and authorized extraordinarily broad authority to the Executive and the executive branch that threatened America's and Americans' privacy rights and liberty interests. In October 2001, I was 1 of 66 Members in the House of Representatives who voted against the PATRIOT Act. It was not an easy vote, but in the years since, it is clear that it was the correct vote because the PATRIOT Act ultimately allowed the government to invade the privacy of millions of innocent Americans. Exhibit 1: section 215 of the act. Section 215 has been greatly abused, resulting in the bulk collection of hundreds of millions of Americans' phone records and email contact lists. The Nation was shocked when we found out about this bulk collection in 2013. In 2015, we passed the FREEDOM Act to cure some of the abuses. It did not cure them all. Section 215 and two other provisions of the PATRIOT Act are up for reauthorization. That is the bill before us. Congress has the opportunity to protect our civil liberties even as we protect national security. And while the House bill made improvements, it is still flawed. The House version still allows large-scale collection of Americans' sensitive information, and it doesn't reform the FISA Courts to prevent abuses. We should learn the lesson of October 2001 and not rush this through the Senate. We should include amendments to better protect Americans' civil liberties. I support the Wyden-Daines amendment that prohibits collection of Americans' internet website browsing and internet search history information without a search warrant. It is a missed opportunity for the Nation that the amendment failed yesterday, although by one vote-- by one vote. Right now, the Federal Government can digitally track articles Americans are reading online, social media they are using, where they are shopping, which restaurants they are thinking about going to, and the list goes on and on. Just imagine thinking about everything you do on the internet and your devices. That is open game. The Fourth Amendment protects us against unreasonable searches. In this day and age, when so much of our life is conducted over the internet, Americans must have assurance that their web browsing, which can reveal highly sensitive information, will not be unreasonably intruded upon by Federal authorities without a search warrant and without probable cause. This information provides an intimate window into our lives. It can reveal a person's medical conditions, political and religious views, and far more. We need to make clear that government must demonstrate probable cause to collect this type of personal information. Second, we need to strengthen the oversight of FISA Courts. We know these secret courts are subject to abuse. In 2015, Congress authorized FISA Courts to appoint amici--friends of the court--in cases involving novel [[Page S2436]] or significant interpretation of the law. This was a positive step forward to provide independent oversight, but it appears there have been only 16 cases in which amici have actually been appointed. Yet there have been more cases than 16 in which novel issues were raised and many more cases where an independent voice is needed to defend civil rights in FISA Court proceedings. The recent Department of Justice inspector general report examining 25 FISA applications underscores this need. The IG found errors and inadequately supported facts in every application. An expanded amicus role is necessary to bring greater accountability to the application process. I voted in support of the Lee-Leahy amendment that expands amici participation to significant First Amendment activities; to matters where a religious or political organization, a public official or candidate or the news media is involved; and to matters approving new technology or reauthorizing programmatic surveillance. Third, we must make sure FISA applications are completely accurate and all exculpatory evidence is disclosed. Accuracy and transparency are critical to maintaining integrity within our justice system. The Lee-Leahy amendment strengthens the requirements for accuracy and disclosure of all information--including exculpatory information--in FISA applications. I am pleased this body stood in support of strengthening safeguards in the FISA Court process. However, our failure to protect Americans from the Federal Government looking over their shoulders while they are on the internet and collecting personal information is unacceptable. National security does not require the Federal Government intruding upon the private lives of Americans without probable cause and a search warrant. Our liberties and freedoms define us as a nation. Either we should reconsider the Wyden-Daines amendment--a motion to reconsider is allowed at this point--or we should vote no on FISA reauthorization. We don't need to sacrifice our liberties and freedoms for an illusion of security. One of our Founders way back in this country, Ben Franklin, said it a little bit differently. He said: ``Those who would give up liberty in the name of security deserve neither.' [...] The PRESIDING OFFICER. The Senator from Kentucky. Amendment No. 1586 Mr. PAUL. The PATRIOT Act was begotten of the most unpatriotic of ideas--that liberty can be exchanged for security. The history of the PATRIOT Act shows that the exchange is a poor one. As our liberty wanes and wastes away, we find that the promises of security were an illusion. The history of the PATRIOT Act is really a history of how power corrupts and how bias and malfeasance grow when power is unchecked. The PATRIOT Act allowed a secret court, FISA, to grant generalized warrants to collect personal data from millions of Americans. The spies who run these surveillance programs then lied--for years and years--to us. One of the most notorious of these liars was James Clapper. When cross-examined under oath by Senator Wyden, James Clapper denied that the government was collecting data on millions of Americans. A month later, the whistleblower, Edward Snowden, revealed that Clapper had lied. Snowden revealed that Clapper and others were using the PATRIOT Act to spy on virtually every American. Snowden revealed that the secret FISA Court was allowing a single court order to command the collection of millions of Americans' personal phone data. Most Members of Congress had no idea that this was going on. In fact, one of the authors of the PATRIOT Act publicly expressed his shock that such a massive surveillance of Americans was occurring with no notification of Congress. Clapper and others, though, said that is not true. They justified their actions by saying: We have been briefing the Elite 8 Congressmen. Who were the Elite 8, and who made them elite? The Elite 8 are the majority and minority leaders of the House and the Senate and the majority and minority leader of the Intelligence Committees of the House and the Senate--eight people. When they were quizzed about this program, most of them said they couldn't remember ever being briefed on it. But the real constitutional question is, have we not changed and subverted the Constitution to make eight people more important than the rest of us? So this was a program where they were collecting the data on everybody's phone calls--everybody in America--and you would think there would have to be a debate and approval by Congress, but there were only eight people, and those eight people seemed to be confused that they had approved the program as well. The idea that a single court order can allow the collection of personal data from millions of people is antithetical to the intentions of the Fourth Amendment. The Fourth Amendment dictates that the government must identify an [[Page S2438]] individual and the items and the location to be searched. The Fourth Amendment was intended to forbid general warrants or writs of assistance that, historically, Monarchs had used indiscriminately to collect vast amounts of either belongings or possessions of individuals. The Fourth Amendment was written to prevent that from happening. The PATRIOT Act essentially allows for generalized warrants and the bulk collection of personal data. The Fourth Amendment also dictates that a search can only occur when the government proves to a judge that there is probable cause that a crime has been committed. However, under the PATRIOT Act they have lowered the standard. So there is the constitutional standard--the Fourth Amendment. But, under the PATRIOT Act, the standard now becomes if it is relevant to an investigation. That is a much looser, broader standard, and it is not a constitutional standard. So the question is, Through these special, secret courts and through the PATRIOT Act, can we allow things that the Constitution actually prevents. What we have done is eroded protections for Americans. So some of us have said the Constitution should still apply to Americans. If you want to look at the data of foreigners or spy on foreign countries or potential terrorists, by all means, do it, but Americans should still be protected by the Constitution. The PATRIOT Act doesn't provide this protection and allows anybody to be investigated if the government can prove that it is relevant to an investigation. That standard is so broad that it could mean almost anything. It is hard to imagine something that could not be argued to be relevant to an investigation. To those of us who prize the rights guaranteed in the Bill of Rights, the PATRIOT Act is a violation of our most precious rights. The PATRIOT Act, in the end, is not patriotic. The PATRIOT Act makes an unholy and unconstitutional exchange of liberty for a false sense of security. I, for one, will oppose its reauthorization. Today we are also here, though, to discuss the FISA Court that interacts and uses some of these extra powers, these extraconstitutional powers. It has been revealed over the last few years that the FISA Court was manipulated, lied to, and ultimately condoned the investigation of a political campaign. I believe that the authors of the FISA Court, who intended to restrain unconstitutional searches, would be appalled at what the FISA Court has become. They would be appalled that this secret court intended to be used to investigate foreign spies and terrorists was turned into a powerful and invasive force to infiltrate and disrupt the political process. It should not matter whether you are a Democrat or a Republican or a Libertarian; we should all be appalled at this abuse of power. The question is, How do we fix it? To my mind, there are two approaches. No. 1, we could try to make the FISA Court less bad by adding procedural hurdles to make it more like a constitutional court or, No. 2, admit that the FISA Court cannot be made constitutional, admit that FISA uses a less-than-constitutional standard when it allows searches to be performed that do not meet the Fourth Amendment. The Fourth Amendment requires probable cause that you have either committed a crime or are committing a crime. The FISA Court only says the government must prove or assert that there is probable cause that you are connected to a foreign government. As we have seen, the standards were so lax that when they went to the Trump campaign and said that a certain person was related to a foreign government, it turns out it was untrue. They didn't present facts to the court that actually argued that he wasn't an agent of the foreign government, and that person had no one to argue for him. The deficiency of the FISA Court and why it is not constitutional is that you don't get a lawyer. You actually don't even get told you have been accused of a crime. The only reason we know that President Trump's campaign got caught up in this is that he won. Because he won and now has the power to open and put sunlight on this, we are now able to see in. If this had been an ordinary American caught up in this, you would never be told, you would never get a lawyer, and you would be brought before this investigative body and subjected to a search of vast amounts of your private information without probable cause. That is not constitutional, and I don't think we can make it constitutional. I think we should admit that we can't constitutionally allow Americans to be subjected to a search that doesn't follow the Fourth Amendment. I believe there is no fixing the FISA Court to make it constitutional for Americans. I believe the only solution is to exempt Americans from the FISA Court. If government wants to investigate a political campaign, which should be a very rare and a very unusual circumstance, to have the government involved in a political campaign, governments should request a Fourth Amendment search from an article III constitutional court. Some will say: Oh, it is hard; we will never get it. Guess what--even constitutional warrants are mostly granted. The vast majority of them are granted. But guess what--a judge will be a little reticent to get involved in the political process because they know how heated it is and how important it is to our Republic. But that is the way you should investigate a campaign if you are going to. Opponents of doing the tried and trusted constitutional way will argue that it takes too long and it is too hard. But guess what--the Constitution was meant to be an onerous standard. The Constitution was meant to be rigorous. Our Founding Fathers understood that justice cannot be achieved in secret courts that neither notify the accused nor let the accused have legal representation. You can't find justice where there is no adversarial process, where you don't get a lawyer. I think it is high time we quit letting fear overrun our constitutional duty. Today, I offer an amendment that restores the Constitution for all Americans and forbids the secret FISA Court from ever again meddling in our political process. Mr. President, I call up my amendment No. 1586 and ask that it be reported by number. The PRESIDING OFFICER. The clerk will report the amendment by number. The legislative clerk read as follows: The Senator from Kentucky [Mr. Paul] proposes an amendment numbered 1586. The amendment is as follows (Purpose: To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the use of authorities under such Act to surveil United States persons and to prohibit the use of information acquired under such Act in any criminal, civil, or administrative proceeding or as part of any criminal, civil, or administrative investigation, and for other purposes) At the appropriate place, insert the following: SEC. ___. LIMITATION ON AUTHORITIES IN FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978. (a) Foreign Intelligence Surveillance Act of 1978.-- (1) In general.--The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following: ``TITLE IX--LIMITATIONS ``SEC. 901. LIMITATIONS ON AUTHORITIES TO SURVEIL UNITED STATES PERSONS AND ON USE OF INFORMATION CONCERNING UNITED STATES PERSONS. ``(a) Definitions.--In this section: ``(1) Pen register and trap and trace device.--The terms `pen register' and `trap and trace device' have the meanings given such terms in section 3127 of title 18, United States Code. ``(2) United states person.--The term `United States person' has the meaning given such term in section 101. ``(b) Limitation on Authorities.--Notwithstanding any other provision of this Act, an officer of the United States may not under this Act request an order for, and the Foreign Intelligence Surveillance Court may not under this Act order-- ``(1) electronic surveillance of a United States person; ``(2) a physical search of a premises, information, material, or property used exclusively by, or under the open and exclusive control of, a United States person; ``(3) approval of the installation and use of a pen register or trap and trace device to obtain information concerning a United States person; ``(4) the production of tangible things (including books, records, papers, documents, and other items) concerning a United States person; or ``(5) the targeting of a United States person for the acquisition of information. [[Page S2439]] ``(c) Limitation on Use of Information Concerning United States Persons.-- ``(1) Definition of aggrieved person.--In this subsection, the term `aggrieved person' means a person who is the target of any surveillance activity under this Act or any other person whose communications or activities were subject to any surveillance activity under this Act. ``(2) In general.--Except as provided in paragraph (3), any information concerning a United States person acquired under this Act shall not be used in evidence against that United States person in any criminal, civil, or administrative proceeding or as part of any criminal, civil, or administrative investigation. ``(3) Use by aggrieved persons.--An aggrieved person who is a United States person may use information concerning such person acquired under this Act in a criminal, civil, or administrative proceeding or as part of a criminal, civil, or administrative investigation. ``(d) Warrants.--An officer of the United States seeking to conduct electronic surveillance, a physical search, installation and use of a pen register or trap and trace device, production of tangible things, or targeting for acquisition of information with respect to a United States person as described in subsection (b) may only conduct such activities pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a Federal court other than the Foreign Intelligence Surveillance Court.''. (2) Clerical amendment.--The table of contents preceding section 101 is amended by adding at the end the following: ``TITLE IX--LIMITATIONS ``Sec. 901. Limitations on authorities to surveil United States persons and on use of information concerning United States persons.''. (b) Limitation on Surveillance Under Executive Order 12333.-- (1) Definitions.--In this subsection: (A) Aggrieved person.--The term ``aggrieved person'' means a person who is the target of any surveillance activity under Executive Order 12333 (50 U.S.C. 3001 note; relating to United States intelligence activities) or any other person whose communications or activities were subject to any surveillance activity under such Executive Order. (B) Pen register; trap and trace device; united states person.--The terms ``pen register'', ``trap and trace device'', and ``United States person'' have the meanings given such terms in section 901 of the Foreign Intelligence Surveillance Act of 1978, as added by subsection (a). (2) Limitation.--Except as provided in paragraph (3), any information concerning a United States person acquired under Executive Order 12333 (50 U.S.C. 3001 note; relating to United States intelligence activities) shall not be used in evidence against that United States person in any criminal, civil, or administrative proceeding or as part of any criminal, civil, or administrative investigation. (3) Use by aggrieved persons.--An aggrieved person who is a United States person may use information concerning such person acquired under Executive Order 12333 in a criminal, civil, or administrative proceeding or as part of a criminal, civil, or administrative investigation. Mr. PAUL. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BLUMENTHAL. I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Vote on Amendment No. 1586 Mr. BLUMENTHAL. Mr. President, I ask that the question be called on the vote. The PRESIDING OFFICER. Without objection, it is so ordered. The question is on agreeing to the Paul amendment. Mrs. FISCHER. I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The bill clerk called the roll. Mr. THUNE. The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander), the Senator from Arizona (Ms. McSally), and the Senator from Nebraska (Mr. Sasse). Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted ``nay'' and the Senator from Arizona (Ms. McSally) would have voted ``nay.'' Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is necessarily absent. The PRESIDING OFFICER (Mrs. Fischer). Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 11, nays 85, as follows: [Rollcall Vote No. 91 Leg.] YEAS--11 Blackburn Braun Cruz Daines Kennedy Lee Moran Murkowski Paul Scott (FL) Sullivan NAYS--85 Baldwin Barrasso Bennet Blumenthal Blunt Booker Boozman Brown Burr Cantwell Capito Cardin Carper Casey Cassidy Collins Coons Cornyn Cortez Masto Cotton Cramer Crapo Duckworth Durbin Enzi Ernst Feinstein Fischer Gardner Gillibrand Graham Grassley Harris Hassan Hawley Heinrich Hirono Hoeven Hyde-Smith Inhofe Johnson Jones Kaine King Klobuchar Lankford Leahy Loeffler Manchin Markey McConnell Menendez Merkley Murphy Murray Perdue Peters Portman Reed Risch Roberts Romney Rosen Rounds Rubio Schatz Schumer Scott (SC) Shaheen Shelby Sinema Smith Stabenow Tester Thune Tillis Toomey Udall Van Hollen Warner Warren Whitehouse Wicker Wyden Young NOT VOTING--4 Alexander McSally Sanders Sasse The PRESIDING OFFICER. On this vote, the yeas are 11, the nays are 85. Under the previous order requiring 60 votes for the adoption of this amendment, the amendment is not agreed to. The amendment (No. 1586) was rejected. [...] The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Ms. DUCKWORTH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Ms. DUCKWORTH. Mr. President, I ask unanimous consent to begin the vote immediately. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. The amendments were ordered to be engrossed and the bill to be read a third time. The bill was read the third time. The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall the bill pass? Ms. DUCKWORTH. Mr. President, I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The legislative clerk called the roll. Mr. THUNE. The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander), the Senator from Arizona (Ms. McSally), and the Senator from Nebraska (Mr. Sasse). Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted ``yea'' and the Senator from Arizona (Ms. McSally) would have voted ``yea.'' Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 80, nays 16, as follows: [Rollcall Vote No. 92 Leg.] YEAS--80 Barrasso Bennet Blackburn Blumenthal Blunt Booker Boozman Braun Capito Cardin Carper Casey Cassidy Collins Coons Cornyn Cortez Masto Cotton Cramer Crapo Cruz Daines Duckworth Enzi Ernst Feinstein Fischer Gardner Gillibrand Graham Grassley Harris Hassan Hawley Hoeven Hyde-Smith Inhofe Johnson Jones Kaine Kennedy King Klobuchar Lankford Leahy Lee Loeffler Manchin McConnell Menendez Moran Murkowski Murphy Perdue Peters Portman Reed Risch Roberts Romney Rosen Rounds Rubio Schumer Scott (FL) Scott (SC) Shaheen Shelby Sinema Smith Stabenow Sullivan Thune Tillis Toomey Van Hollen Warner Whitehouse Wicker Young NAYS--16 Baldwin Brown Burr Cantwell Durbin Heinrich Hirono Markey Merkley Murray Paul Schatz Tester Udall Warren Wyden NOT VOTING--4 Alexander McSally Sanders Sasse The bill (H.R. 6172), as amended, was passed The PRESIDING OFFICER. The Senator from Wisconsin. ____________________