Reforming Intelligence and Securing America Act--Motion to Proceed--
Floor Speech
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Mr. CORNYN. Mr. President, I am glad I was on the floor to hear the distinguished Senator from Illinois's comments about section 702 of the Foreign Intelligence Surveillance Act. This is perhaps the most important law that most Americans have never heard of before, but here we are debating that. The House having passed a bill and sent it over to us, it is our responsibility now to consider that bill.
We all want to protect the privacy and constitutional rights of American citizens. That is nonnegotiable. I agree with the Senator on that point, and I think we all should agree. But the fact of the matter is, the House bill is a reform bill. It is not section 702 as it currently operates. This provides numerous guardrails, accountability measures, and other measures that I believe will limit, if not eliminate, the opportunity to abuse this authority, to the detriment of American citizens; rather, I believe this law must be passed in order to protect those same people.
It is really important for the American people to understand that section 702 is only available against foreigners overseas--only foreigners overseas. If you want to get access to any information even on a foreigner here in the United States or an American citizen or a legal permanent resident, you have to go to court and do what the Senator says, and I certainly support that, which is to show probable cause that a crime has been committed.
But we are not talking only about crimes, the crime of espionage; we are talking about foreign adversaries collecting information on American citizens that they can use to facilitate terrorist attacks, the importation of dangerous drugs, ransomware attacks through cyber crime, and the list goes on and on and on.
But I think a fair reading of the House's bill provides the sort of belt-and-suspenders approach that we need in order to reform the current practice because of the very abuses that our friend from Illinois mentions. Where I differ from him is the fact that we don't need to worry about acting on this bill by tomorrow night at midnight.
Tomorrow night at midnight, the most valuable intelligence tool that is available to policymakers, including the President of the United States, will be eliminated--and what I am talking about is additional collection of that information--because, in fact, the very telecommunications companies that we depend on and that we compel to participate in the collection process will refuse to cooperate if they are not compelled to do so as a matter of Federal law. We know that because some have, in fact, sued to protest that cooperation and that compelling of cooperation. So we need to think about not only what this program is now, but the blindness, the willful blindness we will incur in the future unless we act on a timely basis. There is really no reason not to vote on the amendments, including the amendments from the Senator from Illinois. And I certainly support the right of every Member to offer amendments to try to change the bill as they see fit.
Every single day information acquired through section 702 protects our national security missions, and I want to mention a few of them. Just think for a moment, when President Biden gets his intelligence brief each day, that is called the Presidential daily brief. It is a compilation of the most sensitive intelligence that is important for the President as the Commander in Chief to have access to. Approximately 60 percent of the information contained in the President's daily brief is derived from section 702, so unquestionably it is a critical resource to protect our country, not just for the Commander in Chief but for other policymakers, including Members of Congress who happen to be on oversight committees, for example, which I am privileged to be.
Well, one of the first things that comes to mind when we think about section 702 of the Foreign Intelligence Surveillance Act because it applies only to foreigners overseas who are a threat to national security and so identified--the first thing we think of is counterterrorism.
It is easy to see why because this authority was first created in the wake of 9/11--the worst terrorist attack America has ever experienced-- when 3,000 of our fellow citizens were killed that day.
Section 702 was enacted in 2008 in response to threats posed by terrorist groups, and in the years since, it has helped over and over and over again combat terrorism and prevent further terrorist attacks on American soil. Last year, for example, section 702 helped the FBI disrupt a terrorist attack on critical infrastructure sites in the United States.
In 2022, 702 data supported the planning of the U.S. military operation that resulted in the death of the leader of ISIS, the sequel to al-Qaida, a terrorist organization that has designs not only on its adversaries in the Middle East but on Americans as well. In 2020, information acquired through section 702 helped thwart a terrorist attack on a U.S. facility in the Middle East. And the list goes on and on and on. The point is that section 702 is vital to America's counterterrorism missions, but its applications extend far more broadly than just on counterterrorism.
It is also a critical tool in the fight against fentanyl which took the lives of 71,000 Americans last year alone. I have been to six high schools in Texas where parents--grieving parents--say their child took a pill that they thought was relatively innocuous--Percocet, Xanex. I know we wish our kids wouldn't take things like that, but they certainly didn't think they were taking a pill that would kill them. But that is exactly what happened because it was a counterfeit pill that looked like a regular pharmaceutical drug, but it was laced with fentanyl, and it took their life. Section 702 is a critical tool in combating fentanyl which is the leading cause of death for Americans between the ages of 18 and 45. That is an incredible statistic.
In one example, the intelligence community obtained information under 702 that a foreign actor supplied pill press machinery to a Mexican drug cartel to make fentanyl, which is what happens. The precursors come from China. They make their way into Mexico. They are combined and then processed through an industrial capacity pill press to make it look like a normal pharmaceutical and then smuggled into the United States. That machinery, that pill press, was capable of producing millions of fentanyl pills, not per year, not per month, not per day, but per hour. We know that one pill can kill, so this machine alone could produce millions of lethal doses in 1 hour.
The good news is that this information was uncovered thanks to 702, and it was acted upon and the pill press and other equipment were seized before they could end up in a cartel's drug lab.
But this type of success story is not isolated. Last year, 70 percent of the CIA's illicit synthetic drug disruptions stemmed from information gathered through section 702.
I know we think of the CIA as our intelligence agency, and it is one of our principal intelligence agencies, but one of their missions is a counterdrug mission, and they were able to use section 702 to disrupt 70 percent--or it comprised 70 percent of their synthetic drug disruptions just last year alone.
This intelligence gathering capability is vital to our operations to stop fentanyl and save American lives. And there is no question that the fight against fentanyl would take a major step backward if 702 went dark.
Now, I want to reiterate, our friend from Illinois suggested that there is no worry about missing the deadline of tomorrow night for reauthorization. I just want to emphasize, it is true that currently collected information could be queried, that they could have a search selector to look among information that has already been lawfully collected, but there would be no way that the telecommunications companies from whom this information is collected would cooperate absent a Federal law compelling them to do so. As I said, some have sued and claimed that they should not be required to cooperate.
Of course, intelligence professionals uncover information about far more than just terrorism and drug trafficking. Section 702 also helps the United States Government stop the proliferation of weapons of mass destruction. Seventy percent of the intelligence community's successful disruptions of weapons of mass destruction in the past few years have stemmed from 702. This intelligence also helps disrupt our adversaries' efforts to recruit spies or people they try to recruit here in the United States.
Section 702 helps identify and respond to cyber threats. In 2021, you may remember the Colonial Pipeline ransomware attack where cyber criminals froze the computer systems of Colonial Pipeline and shut it down, which supplied the major supplier of gasoline and diesel for the east coast. They said: We are not going to unlock that network until you pay the ransom. Well, it was section 702--because the master minds of this effort were overseas, primarily in Russia, we were able to use 702 in order to identify those foreign actors in a way that allowed the FBI to connect the dots and to dismantle that criminal network.
Every day America's intelligence professionals rely on section 702 to gather timely and actionable intelligence to keep our country safe. Well, there is no question. I haven't heard any one of our Members here in the Senate say that 702 is not helpful, it is not necessary, but they are concerned about privacy--and I am too. That is the balance we must strike between security and privacy. We need both.
Well, the Fourth Amendment to the United States Constitution protects Americans from unlawful searches and seizures. Now, that applies in every instance where there is an investigation, whether it is by the FBI or by the local police department. Law enforcement cannot search your home or monitor your communications without going to a court and showing probable cause that a crime has been committed, but there is a lot of confusion about where that might apply in this context because what we are talking about is not crime in the sense that our criminal laws ordinarily apply in America. What we are talking about is foreign espionage and hostile activities directed toward the United States that have not yet occurred.
Ordinarily, in America, we don't do anything to try to prevent crimes from happening. We punish crimes once they have occurred after we have investigated them and prosecuted them, but we don't want another 9/11 to occur. We don't want innocent Americans to be killed in a terrorist attack. And it is not OK to say: Well, we will wait until the terrorists commit that act, and then we will try to find them and punish them. We want to stop it, and that is where 702 is so important.
It is not true that 702 gives the authority to the intelligence community to target Americans. That is illegal.
The Senator from Illinois mentioned a number of times where there was inappropriate and, frankly, illegal use of this information. Those individuals in some instances have been disciplined, some instances have been prosecuted, and that is appropriate.
But what the House bill does is, it takes for example, FBI rules and regulations around the use of 702 and codifies them. In other words, it is not discretionary. It is not a matter of Agency rules. It is a matter of Federal law. Speaker Johnson, I know, sent out a long list-- and perhaps we ought to consider that more closely--a long list of reforms that this bill includes that would make that sort of activity far less likely.
I say ``far less likely'' because I doubt you can pass any law or any rule that would prevent somebody from abusing it. But we sure ought to make sure that we minimize the possibility, and we ought to make sure that people who do so are held accountable. That is what this FISA reform bill that the House passed does.
Again, this bill allows the intelligence community and the Department of Justice to obtain information on foreigners located outside the United States. So here is one of the questions or one of the issues posed by our friends who have a different view on this. That is because when a foreigner talks to a U.S. person, well, that should send off flashing red signs or at least yellow lights, but Federal courts--at least three Federal courts, including the Foreign Intelligence Surveillance Court and two other Federal circuit courts, have held that there is no violation of the Fourth Amendment among unlawful searches and seizures of Americans if that was incidental to collection-- incidental to the authorized collection of foreign communications of people overseas. And how is it that we could possibly expect anybody to get a warrant when we don't even know these individuals they are talking to until after the fact? What happens then is very important and is very different; and that is, if the FBI or any law enforcement Agency wants to go a step further and ask for more information about the American citizen or U.S. person, then existing law requires that they get a warrant. It requires them to go to court, go to the intelligence surveillance court--article III judges appointed by the Chief Justice of the United States Supreme Court--and to get a warrant based on probable cause that this individual is aiding and abetting a foreign adversary or has committed a crime like espionage.
But the Fourth Amendment to the Constitution does not apply to foreigners who live abroad. Where this issue raises heightened concerns is in the incidental collection, which I mentioned a moment ago. That is if a foreign target who lives abroad is communicating with an American on U.S. soil or a U.S. person like a permanent resident, intelligence professionals will receive both sides of that conversation.
Again, what I have said is multiple courts have examined the constitutionality of this incidental collection; and in each and every case, it has determined that 702 complies with the Fourth Amendment.
For example, the Second Circuit Court of Appeals, in 2019, considered that very question. The court determined that ``the government may lawfully collect the emails of foreign individuals located abroad who reasonably appear to be a potential threat to the United States.'' The court added that once it is lawfully collecting those emails, it does not need to seek a warrant to continue collecting emails between that person or other persons once it learns that some of those individuals are U.S. citizens or lawful permanent residents or are located in the United States.
But, as I said, once this incidental collection has occurred, if the law enforcement Agencies, like the FBI, want to go further, they have to get a warrant before they can collect other information about that American citizen or U.S. person. That is no longer incidental to the foreign intelligence-gathering of somebody overseas. That is a direct investigation of that person, and it requires a warrant and probable cause.
Well, what I am talking about in terms of incidental collection is not a novel concept. For example, when a law enforcement officer executes a search warrant as part of a money laundering investigation, if the officer enters a home and sees illegal drugs, for example, in plain view, officers can seize that evidence even though it is unrelated to the warrant. That same sort of principle applies here. The Second Circuit, the Ninth Circuit, and the Tenth Circuit Courts of Appeals have all looked into this matter, and the Eastern District of New York has as well. Again, every court that has considered the lawfulness of the 702 program found that it complies with the Fourth Amendment.
So there is no argument, really, even among people who have different points of view. There is no argument that 702 is vital to our national security. The FBI and the intelligence community rely on that authority to combat terrorism, to disrupt drug trafficking, to prevent cyber attacks, and much, much more.
I believe what is really being argued about here, which we ought to go ahead and lay on the table, is a lack of trust in how these rules are actually applied and practiced. Part of that justifiable concern is based upon abuses in the past, and those ought to be investigated and prosecuted; and those people who violate the law ought to be held accountable. But what the House has done is proposed a reform bill which reduces, if not eliminates, the chance of taking those same sorts of actions; and it certainly has provided for accountability, including prison sentences for the people who do violate those rules.
So this proposal goes about as far as you could go without destroying section 702 to make sure that the privacy rights and the constitutional rights of American citizens are protected, while at the same time making sure that we can maintain this flow of valuable foreign intelligence to help protect the American people.
This legislation codifies reforms that were implemented by the FBI a couple of years ago, which have reduced noncompliance to about 2 percent of their queries; and these reforms have already proven to work. As I said, the Department of Justice conducted a review last year and found that 98 percent of the FBI's queries were now fully compliant with these new and enhanced and improved requirements, and those would be codified into law under this bill.
So I appreciate the sensitivity that all of us feel about the constitutional rights of American citizens. None of us want to allow any violation of those rights. We are sworn to uphold and defend the Constitution and the laws of the United States. I am confident that each of us wants to be loyal to that oath, but at the same time, we have a responsibility to protect the American people from the sorts of threats that I have described. Allowing 702 to expire tomorrow night would simply blind not only the President of the United States but us as policyholders--the people responsible for protecting our great Nation--to threats that future collection under 702 could provide, because there is no way that these telecommunications companies are going to cooperate absent a Federal law compelling them to do so.
So who would be the winner in all of this? Well, let's call out a few winners if 702 goes dark: China, Russia, and Iran; and you might throw in North Korea. It would limit our ability to understand the threats we are facing here in the homeland before it is too late.
There is a reason why the intelligence community calls section 702 the crown jewel of their ability to protect and defend the United States and the American people, and it is absolutely imperative that Congress reauthorize section 702 with these reforms before it lapses tomorrow night. And I am optimistic that, in working together, we can get the job done.
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Mr. CORNYN. Mr. President, I appreciate the opportunity to engage my friend and colleague, the distinguished chairman of the Senate Judiciary Committee and a distinguished lawyer in his own right. This is his wheelhouse.
I appreciate the question because I think it actually--maybe there is a nuance here that I misstated my position, because I am of the same mind the Senator is when it comes to an American citizen who is mentioned in a communication with the foreign actor, because this is designed to deal only with foreign actors.
What I was referring to was incidental communication, when there was a communication between the foreign actor and the U.S. person, and we can call him a U.S. person because he can also be a legal permanent resident. Basically, what we are talking about are U.S. citizens. So that is incidental collection when there is that contact between a foreign target and the American citizen. That is considered to be incidental collection, and no court has said it violates the Fourth Amendment.
But I agree with the Senator that if, in fact, there is a mention of an American citizen in that communication and the law enforcement Agencies want more information about that American citizen, they have to get a warrant. They have to go to court and establish probable cause in order to get that information because that is what the Fourth Amendment is designed to protect. I hope I have understood the Senator's position.
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Mr. CORNYN. Mr. President, if the Senator from Illinois will permit me to respond, there are two challenges I think we face. One is that I think the exceptions that you mentioned, basically, will mean that the status quo remains because almost each of those three exceptions would be allowed under current law, so then the amendment would not really change much in the way of practice. I may be missing something, but you mentioned cybersecurity, emergency situations, and the third is?
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Mr. CORNYN. But here is the practical problem: The House of Representatives has passed this bill, and one particular, important aspect of this is a warrant vote that was a tie vote. So this bill-- this law--lapses tomorrow night at 12 midnight, and it is obvious to me that we are not going to be able to change this bill in a way that then could go over to the House and get picked up and passed before 12 midnight tomorrow night. Basically, what we are forced with is a lapse in these authorities during the interim, and I am not even confident that the House could even pass another bill even with these amendments.
So I don't question the good will and the intentions of the Senator from Illinois. I think he wants to do what I want to do, which is to protect our country and to protect the rights of American citizens, but I think, as a technical matter, that the exceptions he has will swallow the rule that his amendment would establish. Perhaps, even more basically, just through the passage of time, it would prohibit our getting this bill to the President's desk in time to keep these authorities in effect.
There is no question that our world is more dangerous now than at any other time in the recent past--I would say since World War II. So I don't think we could risk going dark by having this authority lapse on future collection, either for the benefit of the Commander in Chief-- the President of the United States--or the rest of us.
I want to thank the Senator for giving me a chance to answer a few questions and present my point of view.
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