Grassley on Section 702 Reauthorization: "...we must make sure that those who protect us have the tools to keep us safe"

 

Mr. President, I stand today in support of S. 139, the FISA Amendments Reauthorization Act of 2017.

 

As we know, the first responsibility of government is to protect our citizens. To do so, we must make sure that those who protect us have the tools to keep us safe. S. 139 does this. It provides the intelligence community and law enforcement with the right tools. It also minds the civil liberties and privacy protections our Constitution requires, especially given the ever-changing technological landscape.

 

The importance of our country’s safety and security has been highlighted in several events from just the past two years. We often get lost in the constant news cycle. But let’s not forget that New York City suffered three significant terrorist attacks in the past 15 months alone.

 

In September 2016, a terrorist detonated a pressure cooker bomb in New York's Chelsea neighborhood. A second pressure cooker bomb was found a few blocks away but didn't detonate. Earlier the same day, a bomb went off near the start of a Marine Corps charity race.

 

This past October, Sayfullo Saipov drove a rented truck onto the bike lane and pedestrian walkway of the West Side Highway. He mowed down numerous civilians, killing 8 people and injuring 12 others.

 

And this past December, Akayed Ullah detonated a bomb in the New York City subway tunnel to the Port Authority Bus terminal, injuring several people near him. He told investigators that he did it in the name of ISIS.

 

In June 2016, Omar Mateen shot and killed 49 and injured 53 others in Orlando, also acting in the name of ISIS. In September 2016, a terrorist stabbed 10 people at a mall in St. Cloud, Minnesota. In November 2016, a terrorist injured 13 after driving into and trying to stab students and teachers at Ohio State University. And, in December 2015, we had the San Bernadino shooting, where terrorists killed 14 and injured 22.

 

We’ve also seen terrorist incidents evolving around the world, especially impacting our friends in Europe. In the U.K. alone, there have been at least a half dozen terrorist attacks in the past year, including a subway bombing in London, injuring 30 people; a van plowing down pedestrians on London Bridge, injuring 48 and killing 8 people; the Manchester concert bombing in which 22 people were killed; and the attack on British Parliament in London, killing 4, including Kurt Cochran of Utah.

 

These attacks show the threats are real and we must protect our country by lawful means. Congress has done so by providing lawful authorities such as Section 702.

 

The National Security Agency has called the 702 program “the most significant tool” in the NSA arsenal for the detection and disruption of terrorist threats. The NSA Director has said publicly that “there is no alternative way” to replicate 702 collection. Some estimate that over 25% of all current U.S. intelligence is based on 702 collection.

 

There are some key examples:

 

•          Haji Iman rose from a high school teacher to becoming the second in command of ISIS. He was a main focus of NSA’s counterterrorism efforts. The U.S. government offered a $7million reward for information leading to his capture. We spent over two years looking for him. He was ultimately captured, based almost exclusively on intelligence information collected under the 702 program.

•          Najibullah Zazi is in prison for planning to attack the New York City subway system with explosives in 2009. He received explosives training in Pakistan from al Qaeda. He was discovered after he corresponded with an email address used by an al Qaeda courier in Pakistan, seeking advice on how to build explosives. The section 702 program uncovered the correspondence. Without that discovery, the subway-bombing plot might have succeeded.

•          In October 2013, the FBI began investigating Shawn Parson, a foreigner from Trinidad and Tobago, after Parson began posting comments online expressing a desire to commit an attack against Western interests. Information collected through Section 702 revealed Parson’s efforts, and was instrumental in identifying additional members of Parson’s network.

•          Through the 702 program, the FBI assisted foreign partners to identify the individual who committed the 2016 New Year’s Eve terrorist attack at a nightclub in Turkey. During that attack, 38 people were killed or seriously injured, including an American citizen.

 

And those are just the unclassified examples.

 

It is important to remind my colleagues of the purpose behind Section 702 – it provides the government the authority to collect the electronic communications of foreigners located outside the United States. Under Section 702, it’s against the law to target anyone in the United States, or any American citizen, wherever that citizen is in the world.

 

The program is targeted – it is not a bulk collection system. Furthermore, the FISA Court must approve targeting procedures to ensure that only appropriate individuals are subject to surveillance. Minimization procedures limit the handling and use of information that is collected. All three branches of government have a hand in overseeing the program.

 

It is also important to remind my colleagues that this legislation was first signed into law in 2008. When we took up consideration in 2012 and debated the law, we reauthorized the law unchanged. The 2012 clean reauthorization had the full support of President Obama.

 

Some of our Senate colleagues oppose this bill. Their first, and most consistent, claim is that Section 702 violates the Fourth Amendment to the Constitution. Our colleagues claim it’s an “end-run” around the Constitution. Others call it a “legal loophole,” a “backdoor,” or “warrantless surveillance.” Nothing could be further from the truth. Section 702 is fully consistent with the Constitution.

 

Every federal court to review 702 – including the 9^th Circuit – has upheld the law. The Supreme Court’s recent decision to deny review of the 9^th Circuit case lets stand that court’s decision. These courts consistently determined that a warrant is not required to collect or query Section 702 information. Moreover, the independent Privacy and Civil Liberties Oversight Board reviewed the entire legal framework of the 702 program and also found it to be constitutional.

 

The other main claim against the bill is that it provides “new” powers to the government. Again, this is simply not true. Nevertheless, this bill does include some significant reforms. First, the bill requires the FBI to get a warrant in some criminal cases. In other words, we’ve added a warrant where courts have held none are necessary. The bill also provides protections for whistleblowers, and requires an Inspector General report.

 

In short, this bill provides our government the tools it needs to protect our national security, while providing some much needed transparency measures, and increased privacy and civil liberties protections.

 

I urge my colleagues to vote in favor of this important legislation.

 

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