Reforming Intelligence and Securing America Act--Motion to Proceed--

Floor Speech

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Mr. LEE. Mr. President, over the last few hours, I have listened to debates occurring on the Senate floor over the Foreign Intelligence Surveillance Act and specifically discussions surrounding section 702 of FISA, discussions surrounding, among other things, the FISA 702 reauthorization passed last week by the House of Representatives.

That bill they passed last week is commonly known as RISA, and under RISA, there are a lot of conversations going on about what does and what doesn't concern Americans, what should or shouldn't concern Americans.

Under this bill I am going to be talking about today, RISA--it is an acronym that stands for Reforming Intelligence and Securing America Act. Like so many other bills that get passed by Congress, RISA has a really Orwellian name. It purports to do something that, upon further inspection, it doesn't do, and in some cases, it does quite the opposite of that. So there has been a lot of misinformation being peddled by the purveyors of the cult of infallibility surrounding FISA and those who implement it, so I have come to the floor to dispel some of those myths.

The first myth I would like to try to dispel today involves what exactly it is that we are talking about with the FISA 702 collection and what exactly it is that some of us find objectionable. Remember that under FISA 702, a collection that is supposed to occur under that section really doesn't trigger Fourth Amendment concerns. In fact, most of what they collect I am willing to assume and have reason to believe doesn't trigger Fourth Amendment concerns because it is there to collect information about foreign adversaries operating on foreign soil, doing things against American national security.

We are not concerned about someone plotting a terrorist attack overseas as a non-U.S. citizen--we are not concerned about that person's Fourth Amendment rights. We are concerned about that person and what that person intends to do, but that person doesn't have Fourth Amendment rights--at least not rights that are cognizable under the U.S. system of government. That is why Congress was willing to enact FISA--to allow for the acquisition of intelligence on foreign targets operating outside the United States.

But under FISA 702, there are some communications from some U.S. citizens that are, as we say, incidentally collected, that get swept up into the collection under FISA 702--meaning, if you are a U.S. citizen and you are in the United States and you have a phone call with someone, there is a possibility that that person is outside the United States and is not a U.S. citizen and might be under some sort of collection--some kind of FISA 702 collection effort. There is a possibility that when you talk to that person that that phone call is being recorded or that text message exchange or that email thread is being collected by U.S. intelligence Agencies, and we call that incidental collection.

There are a lot of people who have come down here and have the audacity to claim that the Fourth Amendment has no role to play whatsoever under FISA 702. Now, in a broad sense, they have a point in that what FISA 702 was created to do--and I assume--I certainly hope that the bulk of what it does, the bulk of what it collects has no Fourth Amendment protection attached to it, but some of it does, and how you access that information after it has been incidentally collected by our government and then stored in a U.S. Government database under FISA 702--that matters.

One of the lies that I have heard perpetuated on this very floor on this very day by some Members of this body is that somehow United States article III courts, Federal courts, have concluded that FISA 702 collection just simply isn't a problem, and therefore we have nothing to worry about here. That is misleading. It is misleading to a profound degree, especially because in some instances these arguments have been presented in a way so as to suggest that we have no Fourth Amendment interest, no reason under the Fourth Amendment to care about the querying of a specific U.S. person, a specific American citizen, to see whether or where or to what extent that person's private communications that are stored on the FISA 702 database exist--whether they exist and then what the contents of them are.

In other words, if you want to search the FISA 702 database for a specific American citizen, you can figure out, first, whether there is information there; and, secondly, when you open it, you can read the contents of it, figure out what that person said, to whom, when they said it, how long they talked, and what else transpired.

This is a question on which no Federal court in the United States has ever given its blessing, much less said that there are no Fourth Amendment ramifications from this. In fact, some of the case law that has been cited or referenced--indirectly, in some instances; directly, in others--seems to suggest the exact opposite.

Each and every circuit that has addressed this has identified a distinction. We have got, in one step, the incidental collection of communications by a U.S. person who knowingly or unknowingly was connecting with a foreign national located overseas, who happens to be under surveillance under FISA 702. That is one question, a distinct question.

We have come to accept the fact that some of that is going to happen. It is not the collection itself that presents the Fourth Amendment injury that we can remedy and must remedy here. It is, rather, the second question: whether the querying of 702 data in its 702 database for information on a specific American citizen implicates the Fourth Amendment, thus requiring a warrant in order to search for that American's stored private but incidentally collected information.

Each circuit that has identified this second step to which I refer after the incidental collection--the query--each circuit that has identified that as a separate step has acknowledged that it presents different Fourth Amendment questions from the first step, and both circuits have declined to answer that question.

It, thus, remains an open question. And it is my frustration with those who have come down to this floor and suggested directly and indirectly that this matter is closed; that it has been considered and decided by multiple circuits, no less; that we have got nothing to worry about under the Fourth Amendment here. That simply is not true.

Let me read to you an excerpt from one of the cases most frequently cited. This is the ruling from the U.S. Court of Appeals for the Second Circuit, a case called the United States v. Hasbajrami. You can find it at 945 F.3d--again, decided by the Second Circuit in 2019. Here is what they said:

But querying the stored data does have important Fourth Amendment implications, and those implications counsel in favor of considering querying a separate Fourth Amendment event that, in itself, must be reasonable.

What kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment, and when (if ever) such querying of one or more databases, maintained by an agency of the United States for information about a United States person, might require a warrant, are difficult and sensitive questions. We do not purport to answer them here, or even to canvass all of the considerations that may prove relevant or the various types of querying that may raise distinct problems.

Then another circuit, the Tenth Circuit--the Tenth Circuit, where I have argued dozens of cases, and that includes my home State, Utah, along with a number of other States in the West--decided another case that also recognized this distinction. This case was decided in 2021. It is called United States v. Muhtorov. It is found at 20 F.4th 558.

In this case, the Tenth Circuit says that Mr. Muhtorov's Fourth Amendment argument, specifically on this point, ``asserts the government unconstitutionally queried Section 702 databases using identifiers associated with his name without a warrant. He contends that querying led to retrieval of communications or other information that were used to support the traditional FISA applications. But this is sheer speculation. There is nothing in the record to support that evidence derived from queries was used to support the traditional FISA applications.''

The Tenth Circuit then goes on to say:

The record confirms that the relevant evidence did not arise from querying. We therefore do not address Mr. Muhtorov's second Fourth Amendment argument.

Querying might raise difficult Fourth Amendment questions that we need not address here.

So like the Second Circuit Court of Appeals, the Tenth Circuit Court of Appeals also acknowledged that that is a different question, a second question--one that almost certainly raises Fourth Amendment questions, Fourth Amendment questions that weren't addressed by that court.

Notice, by the way, some of the language used. This highlights some of the problem, some of the reason why we need to be concerned about this. They said that there is nothing in the record to support where exactly that evidence came from. That is part of the problem, you see, with the Foreign Intelligence Surveillance Court, or the FISC, as it is sometimes known. It operates in secret.

Having the FISC operate in secret for purposes limited to communications involving foreign nationals operating on foreign soil undertaking acts hostile to the United States of America, that is one thing. But we have reason to be concerned when they operate in secret and don't have additional legal requirements to follow with respect to a query specifically identifying a particular American citizen. We should all be concerned about that.

We should be even more concerned about it, given this feature that the Tenth Circuit acknowledged, which is that there is almost no way of knowing or approving what they might gain. It is one of the reasons why more exacting standards are required under the law.

The second broad misconception that I want to try to dispel--that has been thrown around a lot today, and I suspect will continue to be thrown around a lot today--is that somehow we are operating under a really, really tight timeframe--a timeframe that acknowledges that section 702 of the Foreign Intelligence Surveillance Act is going to expire at midnight tomorrow, and that if it does expire--which they are saying it will expire if we do anything other than just rubberstamp this ham-fistedly drawn up and passed legislation from the House of Representatives without doing our own homework, without dotting the i's and crossing the t's and making sure that they did their job right, which they did not--that the cost of that will be certain doom and gloom because FISA 702 collection will abruptly cease at exactly midnight tomorrow night.

I would otherwise make mention here of the fact that we have known for months, since December, that April 19 at midnight this deadline was happening. You have seen a deliberate decision in both Houses of Congress. They have religiously, scrupulously avoided bringing it up until just days before that deadline occurs. So they have contrived the very deadline that they are now trying to use as leverage to manipulate our votes to prevent us from doing our jobs to make sure that the i's are dotted and that the t's are crossed and that the American people's Fourth Amendment rights aren't being steamrolled. Shame on them.

I said if I had more time, I would go into that. But I won't because there is another much better argument to make here.

They are lying. They are lying when they say that FISA 702 collection will end abruptly at midnight tomorrow. It will not. The reason we know it will not is because when they shamelessly reauthorized this thing in another eleventh-hour vote back in 2018, our foreign intelligence Agencies and the clever lawyers who work with them threw in language anticipating then that the next time around--that next time when the bill came due late last year in 2023--that there might be a moment then of hesitation because the truth would catch up to them by then that FISA 702 is rife with opportunities for abuse of Americans' Fourth Amendment rights.

Recognizing that, they built into the legislative text, which they dropped at the very last minute and passed by the thinnest of margins, language to guarantee that, even if FISA 702 were to lapse, that as long as there was a certification by the FISC, or the Foreign Intelligence Surveillance Court, a recertification of the FISA 702 collection program broadly--not specific orders regarding specific targets, just the program broadly--that that certification would allow for all FISA 702 collection to continue for 365 days following the issuance of that certification by the FISC, even if during that 365 days, whether at the beginning or near the end of it, FISA 702 had lapsed.

Now, just last week--in fact, I believe it may have been a week ago today--the FISC granted another FISA 702 program certification. What that means is that, because the language that was adopted in 2018 continued until December of last year, and, in December of last year, we punted this issue forward to April 19 of this year, they reenacted a version of that same language from 2018 into the 2023 short-term extension. So it says the same thing.

And because we got, just last week, the FISC certification, that FISC certification and all 702 collection remain lawful 365 days into that, even if FISA 702 lapses statutorily in the meantime.

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Mr. LEE. I will do so.

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Mr. LEE. Thank you.

I am glad to hear that we will be having votes tomorrow. We need votes tomorrow, for some of the reasons that I am discussing. We shouldn't fear those votes.

There is a great song by Blue Oyster Cult: ``(Don't Fear) the Reaper.''

We are lawmakers. It is what we do. We cast votes. We vote on amendments. We shouldn't fear votes. We shouldn't fear doing our jobs.

I have heard it said many times: If you don't like fires and you can't stand being in their presence, then you shouldn't become a firefighter. And if you can't handle taking tough votes, for heaven's sake, you shouldn't be a lawmaker. So that is what we need to be talking about.

One of the reasons why people are fearing the reaper here, fearing amendment votes here--even though there is nothing to fear--they are wanting people to fear those amendment votes because they say: If we cast any amendment votes, if we depart in even the slightest degree from what the House, in its supposedly infinite wisdom, passed last week--with its ham-fisted draftsmanship and its manipulated, truncated approach to voting on amendments over there--that if we depart from that to even the slightest degree, it will be Armageddon, dogs and cats living together in the streets. It will be Armageddon stuff playing out in America. We are all going to blow up. We are all going to die because all FISA 702 collection is going to come to an abrupt halt.

That is a damned lie, and they know it is a damned lie because they guaranteed that that would not be the case.

When I bring this language up to them, they have the audacity to tell me: Oh, no, but that is all great and everything, but the reason it would halt is because some of the service providers, some of the third- party companies through whom they have to work to collect a lot of this information, they are not smart enough to realize what it says. So they are going to fight it, and some of them say they are going to sue us.

Yeah. Good luck with that. Good luck with that theory. In the first place, if they are relying on the fact that they would sue the Federal Government in order to not have to participate with them, I really would like to see that because it is never going to happen. And if it did happen, they would lose. And if they did try, it would take so long to do it that it wouldn't do them any good, especially because they are wrong.

The clock is, in one sense, ticking, but we have got an entire year left before FISA 702 collection would even stop at all. Now, don't get me wrong. I am not thrilled about that. That doesn't make me happy.

It was a manipulative thing to do when they added it. It was a manipulative thing to do when they extended it using the same language. But it is the law. And if they want the benefit of it, which they clearly did just a few weeks ago--just like 3 months ago--then, you know, if you pick up that stick, you are picking up both sides of the stick. And the fact remains that the law makes abundantly clear that FISA 702 collection is not going to halt at midnight tomorrow. It is not going to halt until approximately April 10 or 11 of 2025.

Now, that does not mean we should wait until then to enact legislation addressing these issues and we need not act until then, but it sure as heck means that we can at least take the time to do our own work. There is a reason why we have a bicameral legislative branch.

Washington described the Senate as the cooling saucer; tea would come over sometimes very hot from the House, and it would have time to cool over here. This tea hasn't had any time to cool, certainly not enough time to cool, much less be aired and understood by those whose rights may be affected by it.

So let's do away with those lies at the outset. It is completely fake news; it is a complete, darned lie to say that courts have weighed in and said that there is no problem with the U.S. person queries, to go after a U.S. person's private communications incidentally collected under FISA 702 and stored on a FISA 702 database.

Now, look, I get it. That doesn't fit well onto a bumper sticker. Nobody is going to have that embroidered onto a pillow, although someone should, but it is true.

Second, FISA 702 collection is not going to end tomorrow at midnight. It is not going to end for almost a year. So let's get over ourselves, and let's get over the lies and deal with the actual truth.

All right. Let's talk about RISAA again. I want to talk specifically about RISAA and some of what RISAA does.

Now, a lot of people voted for RISAA over in the House, saying: Oh, it does so much good. I voted for it even though I have concerns with warrantless backdoor searches on Americans. I have got concerns with that, too, but it did so much good, so many reforms. Just so many reforms. Can't even count them. Reforms are so good. You can't let the perfect be the enemy of the good.

Nonsense. Most of those reforms are fake. Some of them are worse than fake. In fact, I could make an argument that RISAA amounts to a net loss for Fourth Amendment privacy interests. Those folks over there who tell themselves that to justify their votes, they are kidding themselves, absolutely kidding themselves.

Let's go through some of the reasons why. When it comes to backdoor searches of American citizens, the bulk of RISAA is just a codification of preexisting internal FBI procedures, the same procedures that continue to produce illegal queries of Americans' communications.

In fact, you know, I have been here since 2011. I have been on the Judiciary Committee the whole time, had opportunities to have conversations with FBI Directors serving under three different Presidents, different political parties. They have all told me variations of the same thing over the years: Don't worry about it. We have got procedures to stop it. These aren't the droids you are looking for. You really have nothing to worry about. In fact, you are kind of stupid for even assuming that this is a problem because, in any event, we at the FBI, we are serious about this stuff, and we have got procedures that will stop it.

Well, fool me once, shame on you. Fool me twice, shame on me. Fool me hundreds of thousands of times, that is not acceptable, not to anyone.

Look, RISAA fails to address the worst of warrantless 702 surveillance. It just does. It codifies the existing FBI requirement of having prior approval from the Deputy Director of the FBI, not from an article III court, a normal court, not from the Foreign Intelligence Surveillance Act Court--or the FISC. And it has this requirement only for sensitive queries involving a U.S.-elected official, a Presidential appointee, or an appointee of a Governor, political organization, U.S. media organizations, and so forth.

And then, for queries of religious organizations or batch queries, RISAA requires preapproval, again, internal FBI approval only, from-- get this--an FBI attorney. What could go wrong? Great. So the Deputy Director of the FBI, the current occupant of the legacy position once held by Andrew McCabe. I am sure that will make a lot of Americans feel a lot better. I am sure a lot of Americans will feel a lot better also knowing that the likes of Peter Strzok and Lisa Page won't be involved in this.

Look, there are a lot of great FBI agents out there, rank-and-file FBI agents, a lot of great work that they do. The top brass at the FBI is not held in as high esteem as they once were. In fact, that is putting it really, really mildly and indeed euphemistically--not just depending on your political leanings but based on what they have done, based on the number of times we have been lied to, based on the number of times we, as Members of the U.S. Senate and members of the public, the voting public, we have been given assurances that time and time again that have just turned out to be dead wrong.

So it is as though, under RISAA, they say: Hey, Mr. Fox, come on in. Here are the keys to the henhouse. Have fun. Get stuff done, and use your power and your keys responsibly. I am sure you won't be tempted to do otherwise.

What? Do they think we are stupid? Do they think the American people are stupid? They are not. They should know better. Shame on them, and shame on our counterparts in the House of Representatives for thinking that this is anything but insulting to the American people.

They say: Oh, don't worry about it. We have FBI internal controls, FBI internal controls. We are putting the same darn people in charge of this, the same people who have manipulated and abused this over and over again. And we have said: You are in charge now. You will be employing the same sort of reviews that you have employed on the honor system in the past, knowing full well that the American public can't see anything that you do. And we are supposed to trust you with that? This is crazy.

This is the same FBI that approved the surveillance of President Trump's campaign and has failed to prevent illegal queries year after year after year, even after denying that they don't happen.

In all cases involving Americans but especially in these sensitive cases, outside checks and balances--actual checks and actual balances-- on the use of surveillance authority should be firmly in place, but alas they are not, nothing like them.

In addition to narrow queried preapproval requirements, RISAA codifies additional changes to some of these internal FBI procedures regarding the abuse of 702 queries of U.S. citizens by its agents. But these internal procedures have not stopped violations, thousands of which are occurring every year. In fact, we have had hundreds of thousands. Until last year, I think we had over--it was in the hundreds of thousands, like over 200,000, occurring several years in a row until last year when they ramped down a bit. And in the meantime, all while telling us that the same darn procedures that they are now codifying, putting the same people in charge of enforcing them, of providing this oversight--that those same people are now going to be put in charge of making sure that they comply with the same requirements they have already falsely been claiming to follow.

So what exactly is this going to stop? Well, it didn't stop the FBI with the same personnel, employing the same standard from, I don't know, let's think about the guy, the unsuspecting guy who wanted to rent an apartment and, unbeknownst to him, the guy who owned the apartment was an agent who decided that he would run the would-be tenant through the FISA 702 database. Or what about the agent who had some kind of an unparticularized suspicion or hunch, something that wouldn't even most likely justify a Terry stop, that his father might be cheating on his mother, and he therefore ran his dad through the FISA 702 database. Or what about the unsuspecting 19,000 donors to a particular congressional campaign, all of whom were run through the FISA 702 database? Or what about the Member of Congress who was run through the FISA 702 database?

These are just a few of the people we know about. Through some miracle, we have been able to learn about the existence of those very, very inappropriate, very, very unlawful, very indefensible searches-- searches approved against the backdrop of the same procedures, under the supervision of the same people holding the same positions at the FBI. So forgive me if I don't think that is necessarily going to change a lot.

Now, RISAA purports to rein in warrantless searches of Americans' information by ending the practice of querying data to find evidence of a crime unrelated to national security. However, such queries represent just a tiny fraction of warrantless violations of Americans' privacy.

Keep in mind, what we are talking about here are those that are deemed solely for that purpose. They are there solely for the purpose of looking for evidence of a crime. That was never a significant percentage of the problem. It was always a tiny, tiny portion of the problem. And in any event, this is entirely within the FBI's own ability to circumvent just by recharacterizing the nature and purpose of the query in question.

(Mr. King assumed the Chair.)

You know, of the more than 200,000 backdoor searches performed in 2022, the prohibition would have denied authority in exactly 2 instances--2 searches. And in both of those instances, the FBI could easily have gotten around them by characterizing them differently than they did. Again, this is not serious. This is not the kind of reform that the American people are demanding. It is certainly not the kind of reform that they deserve.

Now, when it comes to transparency and surveillance oversight, there are a number of purported reforms that many Members of the House of Representatives who voted for this are clinging to with all their might, insisting that ``oh, these do a lot of good; these fix the problem.''

But let's look into that. Let's look at what RISAA does to amicus participation. Remember what ``amicus'' means. ``Amicus'' is short for ``amicus curiae.'' The plural of ``amicus curiae'' is ``amici curiae.'' It means ``friends of the court.'' And ``amicus curiae'' is a ``friend of the court.''

Back in 2015, a bipartisan effort that I led on the Republican side in the Senate, called the USA FREEDOM Act, was passed by Congress and signed into law by President Obama. It imposed a number of reforms. It ended the bulk of metadata collection, among other things. It also imposed some requirements related to the FISC, allowing for the participation of an amicus curiae before the FISC in a number of circumstances--because, remember, in the FISC, unlike in ordinary court, its members consist of presidentially appointed, life-tenured article III Federal judges. But in their capacity, while they are serving in their capacity as FISC judges, they sit in a courtroom without opposing counsel. Only the government has historically been present in those circumstances. And because of the sensitive nature of some of the issues that we have described today, we created in the USA FREEDOM Act provisions requiring the participation, in a number of circumstances, for amicus curiae.

There have been no complaints about this not working well--none. I am not aware of a single instance where amicus participation before the FISC has caused a problem. And yet, consistent with its pattern and practice of scanning the horizon, looking high and low to find a solution in search of a problem, those loyal to the intelligence Agencies over on the House of Representatives side have put in place some very significant restrictions on amici before the FISC by limiting the arguments amici can raise and by limiting those who can even serve as amici in 702 proceedings.

Again, not one complaint that I am aware of has been raised on this. Not one reason has been provided as to why they shouldn't do this--not one. But they still said we have got to limit them.

RISAA's amicus provisions will actually weaken oversight, instead of adopting the reforms that passed the Senate, 77 to 19, in 2020, as part of the Lee-Leahy amendment, which would have strengthened oversight by bolstering the role of amici.

By the way, that measure passed in 2020 by the Senate, 77 to 19, was part of a legislative package expected, at the time, to move over in the House, where it would have passed by correspondingly overwhelming bipartisan supermajority margins over there, but for the fact that that vehicle, for reasons unrelated to the Lee-Leahy amendment, caused that bill to stall out. Now, 77 to 19, those are the margins by which this passed the Senate just a few years ago.

That Lee-Leahy amendment would have created a presumption that amici should participate in cases that raise critical issues--such as those involving the First Amendment-protected activity of a U.S. citizen or any other U.S. person, a request for approval of a new program, a new technology, or a new use of an existing one, a novel or significant civil liberties issue with respect to a known U.S. person or a sensitive investigative matter--while giving the FISC the ability to deny participation where there was some particularized reason why that would be inappropriate.

Amicus participation is critical, especially so where you have this kind of ex parte proceeding. An ex parte proceeding is one in which only one side is represented by counsel. It is just the government's lawyer and the judge or judges. Without an amicus, there is no one there to look out for, to protect, to advocate for the rights of the American public.

RISAA requires the government also to provide only limited and inadequate presentation of what we call exculpatory evidence, the type of evidence required by United States v. Brady in an ordinary Federal court. By contrast, the Lee-Leahy amendment would have required a full presentation to the court of all material, exculpatory evidence that might come into play there. And this is absolutely necessary.

Now, why these guys chose to weaken that, I think, is consistent with--I mean, we can only surmise what the reasons might be, but I think they have a lot to do with the fact that, of course, no government Agency wants additional responsibilities or additional burdens. It makes additional work for them.

And that is the whole point. The whole point of the Fourth Amendment is not to make the government's job more efficient. I am sure law enforcement, domestically, would be a whole heck of a lot easier if there were not a Fourth Amendment. That is not a reason to jettison the protections of the Fourth Amendment.

And even though I am sure some of the legitimate foreign intelligence gathering operations of our intelligence Agencies would be made easier, less burdensome if we just threw all of these protections to the wind and pretended that there aren't legitimate reasons related to Fourth Amendment interests to be concerned here, should that make it easier, that doesn't make it the right thing do. It doesn't mean that it is consistent with the letter and spirit of the Fourth Amendment.

Look, this requirement about exculpatory evidence, as it is contained in RISAA, just provides a mere veneer. It is a Potemkin village version of the real thing, just the illusion of protection. This provision draws near to the Fourth Amendment with its lips, but its heart is far from the Fourth Amendment.

The FISC should be given all exculpatory material evidence before a proven surveillance. We have to remember, in December of 2019, the Department of Justice IG reported 17 errors and omissions in the FBI's FISA applications, requesting authority to surveil President Trump's Presidential campaign adviser, Carter Page.

Unsurprisingly, this included the failure to disclose the unreliability of the Steele dossier, an opposition research document with largely fabricated, unsubstantiated claims.

Now, unfortunately, the April 2020 memorandum from the inspector general to FBI Director Wray proved that this was not an isolated incident.

After a sampling of 29 FBI applications for FISA's surveillance of U.S. persons, he found an average of 20 errors per application.

The Lee-Leahy amendment that passed, in 2020, with 77 votes in this Chamber would have required that the government provide all of that material--all material, exculpatory evidence to the FISC--since the U.S. person being surveilled is excluded from the FISA proceedings.

Next, we will turn to another provision that I think persuaded, unfortunately, some Members of the House of Representatives to support this bill, even though it lacked adequate substantial Fourth Amendment reforms. I am referring, of course, to the protections directed specifically at Members of Congress.

The RISAA bill provides protections not available to others, specifically for Members of Congress. Think about this for a second. One of the reasons why a number of people felt comfortable voting for it was because of the belief--the mistaken belief, as I will explain in a minute--that this protects rank-and-file Members of the House and the Senate. I don't believe it even does that. But, even if it did, think about what that says.

Anyone persuaded by this is tacitly admitting--if not to the public, at least should admit to themselves--that, No. 1, this is enough of a concern that they ought to be worried about it, such that they ought to provide some sort of language requiring accountability for when they do 702 queries on individual Members of Congress. So they are acknowledging that there is a problem, that it can be abused. But then they are providing a type of accountability available only to Members of Congress. That is kind of creepy.

If this thing is bad such that it needs protection, why not make that protection or other similar protections available to Americans broadly--to all Americans? Why limit this to Members of Congress?

So what it does is it requires notification not to all of Congress but notification to congressional leaders--meaning to the law firm of Schumer, McConnell, Johnson, and Jeffries and to the top Republican and top Democrat of the House Intel Committee and the top Republican and top Democrat of the Senate Intel Committee. Sometimes, collectively, we refer to this as the Gang of 8.

It requires notification to them if FBI queries the name of a Member of Congress, and RISAA requires prior consent from the Member of Congress in question, but only if it wishes to perform a query on that Member for purposes of a defensive briefing. Otherwise, if it is not for the purpose of a defensive briefing, that Member doesn't get notified.

But the law firm of Schumer, McConnell, Johnson, and Jeffries gets notified, and the Intel bruhs--you know, the top heads of the Intel Committee on both sides of the Capitol--they get notified too. Nobody else does.

Now, it is not like they are going to feel inclined to notify the Member. In fact, they are probably prohibited from doing so. Who exactly does that protect? Why is that a good thing? If the querying is being done, then you are allowing a tiny handful, 8 Members out of 535 sworn and currently serving Members of the legislative branch, who have been elected by their respective States--8 of them, just 8 of them--to get to know what they are doing about any and every other Member of Congress. How is that going to help anyone?

In fact, how is that not something that could actually work to the disadvantage of those being surveilled, except in the specific context of a defensive briefing?

This is crazy. This is throwing gasoline on the fire. In addition to giving the keys of the henhouse to the fox, you are then dousing the whole thing with gasoline and then adding more gasoline to it after it is on fire.

As much as anything, these are fake reforms. And to the extent they are not fake, because they are available exclusively to Members of Congress, they are a slap in the face to our constituents, who receive no such protections--none. Including those protections shows that the drafters of RISAA knew that there is a problem. It shows that those who voted for it, who relied on this, to their detriment, understand how invasive these queries really are. And that is why they want to protect Members of Congress, even though they are failing to do that here, unless they happen to be in the Gang of 8. That is why they are claiming to protect themselves from being subjected to 702 queries focused on them.

In reality, these protections for Members of Congress aren't just self-serving, they are elusory. The consent requirement is flimsy, at best, and there is an exception that quite arguably swallows the whole rule, even where it might otherwise apply. And the FBI can, based on the way it categorizes the search in question, it can get around it, the consent requirement, even in the narrow circumstances where it might otherwise apply. So this thing is a fake. But it is worse than fake. I actually think it would be a detriment to privacy and even to the interests of most Members of Congress.

Then we get to one of the big enchiladas of this: the electronic communication service providers expansion, the so-called Turner amendment. And it was basically drawn up and thrown together and thrown into the bill at the last minute, rubberstamped by the House. This particular provision of RISAA authorizes the largest surveillance expansion of this type of surveillance on U.S. domestic soil since the PATRIOT Act.

Egregious Fourth Amendment violations against the United States and its citizens will, I am confident, increase dramatically if this thing is passed into law. RISAA, as amended by the Turner amendment, would allow the government to compel a huge range of ordinary U.S. businesses and individuals--exempting only an odd assortment of entities, including hotels, libraries, restaurants, and cafes--to assist the government in spying on U.S. persons.

Currently, the government conducts 702 surveillance with the compelled assistance of electronic communications service providers or ECSPs. Historically, the definition of ECSP included those entities with direct access to Americans' electronics communications; for example, Google, Microsoft, Verizon, et cetera. This new proposition would allow the government to compel warrantless surveillance assistance of any provider of any service that has access to equipment on which communications are routed and supported. This would include a huge number of U.S. businesses that provide Wi-Fi to their customers and, therefore, have access to routers and communications equipment.

Apparently, this provision is the result of the intelligence community's ire at being told by the Feds that data centers for cloud computing do not have to comply with FISA-compelled disclosures. House Intel Committee members claim it was a narrow fix to allow the government to compel information from a single service provider.

I don't buy it. The reason I don't buy it is because if that is what it was supposed to do, they would have written it differently. They didn't write it that way. They have smart lawyers. They are smart people. They know exactly what they are doing. But even if they didn't know what they were doing, we know what they did, and it is not good. The fix was deliberately written, you see, in really broad terms to conceal the particular provider at issue.

As written, the provision could be used to compel any service provider that could potentially access communications equipment including, potentially, janitors, people involved in repairs, plumbers, to assist NSA in spying. Nothing in the language provides any backstop, any limitation of the unfettered use of this newly, dramatically expanded authority.

Moreover, because these businesses and individuals lack the ability to turn over specific communications, they would be forced to give NSA access to the equipment itself. The NSA would then have access to all of the communications transmitted over or stored on the equipment, including a trove of wholly domestic communications. It would be up to the NSA to capture only the communications of foreign targets.

No disrespect to the fine men and women who work at the NSA, but it is one of the most impenetrable--necessarily impenetrable--Agencies that has ever existed in any government anywhere. Yet no visibility, no transparency, no oversight there that is going to make any difference. Giving the NSA access to Americans' communications on such a broad scale is a recipe for disaster, and it is contrary to the purportedly narrow focus of 702 on foreign targets.

Look, I have outlined some of the myths surrounding this whole FISA 702 debate. I explained that the collection under 702 is not going to go dark if something doesn't pass immediately, meaning we are not forced with this obstinate choice between having to accept lock, stock, and barrel with no amendments, with no opportunity to review it, to air it, to improve it, to make it better, to address the disaster that is the Turner amendment, to address the hypocrisy and the sham that is the Member of Congress exclusive protection; to address any of the glaring omissions, including the failure to add any type of a warrant requirement for communications--private communications--of U.S. citizens incidentally collected and stored on a 702 database.

These are all lies that we can't address any of those to try to include in this thing because FISA 702 collection is going to end abruptly, tragically, at midnight tomorrow.

We already established this language that was first adopted in 2018 then reupped, renewed, and reenacted in December of last year to extend this deadline to April 19. It makes clear that once the FISC has issued a recertification of the program, 702 collection may continue unabated, undisturbed even if FISA 702, itself, expires in the meantime, as long as it is still valid at the time of the certification. That certification was renewed a week ago, and so we have a year. We have a year before that ends. Let's get rid of this nonsensical, unbelievable lie that is being told that we are all going to die if we don't do it.

What do we need to do? First, we have to have an amendment process. We have to have an amendment process that, among other things, allows for a probable cause warrant to be the backstop of any U.S. person query. We have language that I support that is being offered in a Durbin amendment that would require that. And it would attach at the moment they want to review the content, they want to do a U.S. person query, to figure out whether it is there in an emergency or in some other circumstance for some reason. Even if they do that, before they open it, before they review the substantive content after doing a U.S. person-specific query, they would have to get a warrant.

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Mr. LEE. So we need a probable cause warrant requirement. Now, all of the sky-is-falling predictions about why that would be so bad to have a probable cause warrant requirement is really not addressing the facts here.

Look, I think we would have been just fine had we adopted what is known as the Biggs amendment--you know, the amendment that failed by a tied vote 212 to 212. And it failed, I believe, because they gaveled out the second they saw that it was tied, even though there were still more Members coming to the floor to vote--more Members coming to the floor to vote--I was over there at the time--who were believed to be intending to support it. They gaveled out the second they thought they could get away with it and make it fail.

One of the reasons why it didn't get more votes is because of the scare tactics associated with that and overblown, exaggerated concerns that it would just make it impossible. You know, I heard members of the intelligence community argue that it would just necessarily bring an abrupt halt to everything we do in this area. It is not credible. It is not true.

But even if that were true, let's indulge that for purposes of this discussion. The same concerns are minimized by the warrant requirement in the Durbin amendment. In the Durbin amendment, the warrant requirement would be triggered not at the moment of the query itself, but at the moment they want to open the results of the query so they could see whether the particular U.S. person, the U.S. citizen addressed in the search, triggered some kind of response. But then before they could open the search result, read the contents of the email, listen to the contents of the phone calls, read the text messages, whatever it is, then they would have to go get a warrant, unless they make the same argument here and scare people yet again because this is what they do and they get away with it because they are the spies, the spy Agencies: Trust me, trust me, people are going to die unless Congress does exactly what I say.

That is what they say over and over again. You know, it gets really irritating when they say the same thing year after year.

But lest they gain any advantage here by coming up with that, it would affect such a tiny, tiny portion of all--you know, U.S. person queries are a tiny fraction of all queries run on the FISA 702 database. I am told it is, likewise, a tiny percentage of all U.S. person queries, something like 1 or 2 percent, that would be implicated by the Durbin amendment's warrant requirement.

According to Senator Durbin, I believe the estimate he provided was about eight queries a month would trigger that. That is not hard to comply with at all. Those of us who have been prosecutors know it is not hard to get a warrant, especially in a program as huge as FISA 702. To suggest that it is just unduly oppressive for them to get up to eight warrants per month when querying specifically for the private communications of U.S. citizens on the 702 database, no, don't tell me that is unduly burdensome. That is not credible.

So we need that amendment. It is not the only amendment we need, but we definitely need that one. Without that one, I think this bill is an absolute mistake without adopting that amendment.

There are other amendments as well. One that I will focus on is the amendment I am running providing necessary reforms to the amicus curiae process requiring the government to disclose exculpatory evidence. Yes, it is essentially the same amendment. It does exactly the same thing as the Lee-Leahy amendment but introduced now as the Lee-Welch amendment. With a certain degree of poetic symmetry, I have united now with the Senator from Vermont who took the place of our dear former colleague Senator Pat Leahy. Peter Welch is now cosponsoring this measure with me, and we introduced what is the Lee-Welch amendment, which would do as I described a moment ago.

It would beef up the amicus curiae process participation, which has been badly weakened and undermined by RISAA, and it would restore it, making it just a little bit more like the adversarial process that is the hallmark of our country's legal system, designed to protect our individual rights.

It would require, among other things, that at least one of the court- appointed amici have expertise in privacy and civil liberties unless the court found that such qualifications were inappropriate in a particular case.

It would also require the FISC to appoint an amicus in cases presenting a novel or a significant interpretation of law or significant concerns with First Amendment-protected activities of a U.S. person, a sensitive investigative matter, a request for approval of a new program, new technology, or a new use of an existing technology with novel or significant civil liberties issues with respect to a known U.S. person.

All of these things are important, and it is also important that they be required to provide the full panoply of material exculpatory evidence to the FISC as they are going before the FISC in cases involving U.S. person queries under 702.

It is really important that we have these reforms because, again, remember, we suspend what would otherwise be significant restrictions in this arena. We suspend those. Because we suspend them and because this is a secret court, it is that much more important to be careful.

We still understand that because of the risks associated with it, it is still not a court that would operate in a public way, but at least there would be another set of eyes in there looking at it. A set of eyes under some circumstances is allowed to be in there now but maybe not as often as they should be, and that will be weakened if we just pass RISAA reflexively. RISAA would actually weaken transparency in surveillance oversight, very significantly and very dangerously.

So, look, I am about out of time, and so I need to wrap this up. Let me just close by saying this: We can't fall for the lie every time, and we certainly can't fall for the lie every time and then claim surprise when it gets abused again.

The American people have seen over and over again that there is some risk in this. Sure, these things have made us safer, and we like those things that have made us safe.

I don't personally know any American who is concerned--who stays up late at night worrying about FISA 702 surveillance of a foreign adversary operating on U.S. soil. That is not a zone where Fourth Amendment interests are cognizable in our legal system, and it is not something that Americans I know spend time worrying about. But they are worried when they learn that a number of innocent, unsuspecting Americans have their own private communications incidentally collected or swept up in what might well be legitimate operations associated with FISA 702. It is the querying of their name, of their personal identifiers, their phone numbers, the email addresses of a known U.S. citizen, looking for them--it is a great cause of concern to many.

That is my principal focus, and it is why I am focused so heavily on the Lee-Welch amendment and on the Durbin amendment, of which I am also a cosponsor, requiring a warrant for them to access the contents of those private communications of U.S. persons when they are queried on the FISA 702 database.

That doesn't mean these are the only reforms that are necessary. There are a handful of our other colleagues who have introduced other reforms. One of them addresses the Turner amendment.

This breathtakingly broad expansion of FISA was written in a ham- fisted way. I understand that there is a legitimate reason for it, but the way it is written, one has to wonder about what the subjective motives of those writing it may have been. But even if you assume for purposes of argument that they were pure, their draftsmanship sure wasn't pure, and we have to fix that. We have to fix that.

There are some other amendments that also need to be considered. You know, I am not sure how I feel about every one of these amendments, but, you know, when you get elected to the United States Senate, one of the things that differentiates this body from other legislative bodies--we pride ourselves on supposedly being the world's most deliberative legislative body. We need to act like it.

Our rules and nearly 2\1/2\ centuries of tradition, precedent, custom, and practice are such that we are expected to vote on each other's amendments even when we don't necessarily agree with them. Even those amendments that I don't feel great about, that I might well oppose, perhaps even vigorously, I want them to have votes too.

We can't fall for fake scare tactics telling us that Armageddon will be upon us if we get past tomorrow night at midnight because it is just not true. Nor can we fall for the lie that has been repeated on this floor today that Federal courts have addressed this issue and concluded that this issue raises no Fourth Amendment concerns. That is a lie.

To the extent that it is being spun innocently or just negligently, then I guess in that circumstance, we wouldn't call it a lie; we would call it a badly, badly mistaken argument. But it is not something that should persuade us. Just let us vote.

We have to end this practice of filing cloture and filling the tree. That is fancy Senate parlance for preventing people from offering up amendments and having those amendments voted on. Every time you do that, you bolster the disproportionate, hegemonic power of the law firm of Schumer, McConnell, Johnson, and Jeffries so that you make them superlegislators while subordinating all of us and, more importantly, those who elected us from a pretty important legislative process.

I implore my colleagues to think about them--those who voted for us and those who didn't vote for us but those to whom we stand accountable--before reflexively enacting this again. And I implore our Senate majority leader to just let the people's elected lawmakers vote.

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