Sen. Rand Paul (R-KY)
Remarks on Expiration of the PATRIOT Act
U.S. Senate
May 31, 2015

[transcript provided by Paul's Senate office]

Tonight begins the process of ending bulk collection. The bill will ultimately pass but we always look for silver linings. I think the bill may be replacing one form of bulk collection with another, but the government after this bill passes will no longer collect your phone records. My concern is that the phone companies still may do the same thing. 

Currently, my understanding is the N.S.A. Is at the phone company sucking up the phone records and sending them to Utah. My concern is under the new program, that the records will still be sucked up into N.S.A. Computers but the computers will be at the phone company, not in Utah. 

So the question is, will it be a distinction without a difference? The question also will be, will this be individualized? One of the things about the Fourth Amendment that was the biggest part of the Fourth Amendment for our founding fathers was that a warrant should be individualized. General warrants were what we fought the revolution over. 

James Otis fought a famous case in the 1760's and he found against the British soldiers writing their own warrants. The interesting thing is part of the PATRIOT Act allows our police to write their own warrants. We have something called national security letters. These have been done by the hundreds of thousands. 

Interestingly, when the president was in the senate, he was opposed to national security letters and said that they should have judicial warrants. Now it's kind of interesting that in this bill that will pass - it's supported by the president, supported by the Director of National Intelligence and now supported in a wide bipartisan fashion. 

It concerns me that the president that supports the bulk data collection and has been performing it illegally for six years now supports this bill the devil's in the details and the question is, will the new bill still allow bulk collection by the phone companies? Will they be able to put into the search engine not an individual for whom we have suspicion but an entire corporation? This is what was revealed when we saw the warrant that was revealed that had Verizon's name on it. 

We had the Director of National Intelligence come before the American people, come before Congress, swear under oath that they weren't doing this. Part of my problem with the intelligence gathering in our country is it's hard for me to have trust. It's hard for me to have trust in the people that we're giving great power to. 

They also insist that we won't be able to catch terrorists. They insist that the bulk collection allowed them to catch terrorists. But then it turned out when it was investigated, when we looked at the classified documents, when the president's bipartisan privacy and civil liberties commission looked at this, when his review board looked at this and then when the Department of Justice Inspector General looked at this, they all found that there was no unique data, there was no great discovery, there was no great breaking up of a terrorist ring. 

People have brought up the Boston bomber, the Tsarnaev boy. They said we need the PATRIOT Act after the bombing to get his phone records. That's the most absurd thing I've ever heard. He's already committed a bombing. In fact, I think he was dead at the point, and you're saying we couldn't get a warrant to look at his phone records? It's absolutely absurd. 

I had a meeting with somebody from the intelligence community about six months ago and I asked them this question - how do you get more information about terrorists, with a warrant with their name on it where you can go as deep into the details as you want, or this met data collection that uses a -- this metadata collection that uses a less than Constitutional standard?

And he said, without question you get more information with a warrant than you do through the metadata. When someone commits an act of atrocity, there's no question we would get a warrant. But I would go even further. I would say that I want to get more warrants on people before they blow things up. 

I would say that we need more money spent on F.B.I. agents analyzing data and trying to find out who we have suspicion for so we can investigate their records. I think we spend so much money on people for whom there is no suspicion that we don't have enough time and money left to go after the people who would actually harm us. 

The people who argue that the world will end and we will be overrun by jihadists tonight are trying to use fear. They want to take just a little bit of your liberty but they get it by making you afraid. They want you to fear and give up your liberty. They tell you if you have nothing to hide, you have nothing to fear. That's a far cry from the standard we were founded upon -- innocent until proven guilty. 

One of the objections that I tried to bring forward earlier but was interrupted repeatedly was that the PATRIOT Act was originally intended to go after foreigners and terrorists. We allowed a less than Constitutional standard. We didn't ask for probable cause. We just said it had to be event, the information had to be relevant to an investigation into terrorists. 

Here's one of the problems, one of the big problems I have with the PATRIOT Act. We now use parts of the PATRIOT Act to arrest people for domestic crime. Section 213 "Sneak and peek" where the government can come into your house, place listening devices and never announce that they were ever in your house and then leave and then monitor your behavior and never let you know they've been there, is being used 99.5% of the time for domestic crime. 

So little by little, we've allowed our freedom to slip away. We allow the Fourth Amendment to be diminished. We allowed the narrowing loss of something called probable cause. People say well, how would we get terrorists with that? The vast majority of warrants are approved in our country. 

The vast majority of warrants that are Fourth Amendment warrants where we individualize them, put a name on and ask probable cause, if the police tonight are looking for a rapist or a murderer, they will go to the house, and if they suspect they're inside but nothing is imminently happening, they will stand on the curb and call the police, and they almost always get a warrant. 

Do you think there's a judge in this land that would not grant a warrant, particularly after the Boston bombing, to look at the Tsarnaev boys records. There is not a judge in the land that would say no. I would say in advance there is not much chance a judge would say no, if you went to them and said the Russians have given us indication and evidence that he has been radicalized and associated overseas with people who are training to attack us. 

There's no reason why the Constitution can't be used. But we just have to not let those who are in power make us cower in fear. They use fear to take your freedom, and we have to be very, very careful of this. Now, some are saying I'm misrepresenting this, I'm saying the government is listening to your phone calls. 

I'm saying they are collecting your phone records. There are programs, though, in which they may be looking at content. Emails, for example. The current law says that after six months, even the content of your email has no protection. We have a very good piece of legislation to try to fix that, but realize those who are loud, those who are really wanting you to give up your freedom, that they don't believe the Fourth Amendment protects your records at all, and this is a big debate. 

We went to the court, the Second Court of Appeals, the highest court in the land just below the Supreme Court, said that what they are doing is illegal, but we don't yet have a ruling on whether it's Constitutional. One of my fears about the bill that we're going to pass, the sort of in-between step that some think it may be better, is that it will moot the case. 

This means that the court case may never get heard at the Supreme Court now. I have a court case against the N.S.A. There's another district court that has ruled against the N.S.A. We now have an appellate court ruling against the N.S.A. The court may well look at the activity of the senate and say well, you guys have fixed the problem, we don't need to look at it anymore, it's no longer relevant. 

My other concern about this new bill that's going to pass is the same people will judge it that judged the previous system. These people are called the rubber stamp courtroom, also known as FISA. Realize that the FISA court is the court that said the collection of all American records is relevant. The appeals court basically laughed at this notion and said that it sort of destroys any meaning to the word relevant if you collect everybody's records. 

It's not even a modifier. They should have instead of said relevant said you could have everyone's records all the time. One of my other concerns about the in-between solution that we are going to choose is that some are conjecturing -- you have to be suspicious of a government that often lies about their purpose. 

Some are conjecturing that they're going to collect more phone data under the new system. One of the complaints last week, as there was discussion about this, in the newspaper it was reported that really they were only collecting about 20% to 30% of your cell phone data. 

They are trying to collect all of your landline data, but they weren't for some reason collecting all of your cell phone data. One of my concerns is that as we go to this new system, they may actually be better at collecting our phone records and they may well be able to collect all of our cell phone data. 

Unless we can go to a system where we individualize the warrants, unless we can go to a system where a person's name is on the warrant, I'm going to be very, very concerned. Now, we will present amendments on this bill. We tried to negotiate to be allowed to present amendments, but there wasn't a lot of negotiating that went on in the last week. In fact, there was none. 

So we will still try, we will put amendments forward and we will try to get amendments to make I think the bulk collection less bad that's going to occur. One of the things we would like to do is to say that when they search the phone records that they can't put the name of a corporation in there, that they would have to put an individual's name. 

It's kind of tricky about the way these things are worded. The wording of this bill will say that they can only put a U.S. person into the selector term to search all the phone records. The problem is that they define U.S. person as also meaning corporation or association or grouping. 

So there is a little bit of looseness to the language, and so if we are still going to allow corporation, what is to stop them from going back and putting AT&T or Verizon in the selection and then once again they are looking at all the phone records, and all we have done is transferred the phone records from government control in Utah to phone company control in another location. 

Will we be trading bulk collection in Utah for bulk collection under the phone company? Now, there are good people who believe this bill will reform, and I think they are well intended. I think there are good people who really think we will end bulk collection and it won't happen. My fear, though, is that the people who interpret this work at a place known as the rubber stamp factory over at FISA. It's a secret court and it's a court in which 99.5% of the time they approve warrants. Warrants are simply rubber stamped over there. In fact, they prove that relevant meant all of your records. My question is if they put AT&T in the selector item, will we once again have the same thing, just in a different location?

I have several amendments that I'm interested in if we were to be able to amend the bill. One of the amendments would say the selector; the search would have to be an individual, which I think is more consistent with the Fourth Amendment. Another one would change the standard to the constitutional standard, which would be that it has to be probable cause, which is a higher standard than simply saying it's relevant. Then we would actually be sending a new signal to the FISA court another amendment I have which I think would go a long way towards making the PATRIOT Act less bad, I think is the best way to put it, would be to say that any information gathered under a less than constitutional standard could only be used for foreigners and terrorists. 

See, that was the promise, and at the time there were people who opposed the PATRIOT Act. Not enough but there were a few. And when they opposed the PATRIOT Act, they said the fear was that it would be used against American citizens. And they said oh, no, no, we're only going after terrorists, but the law allows them to do it. We now have sections of the PATRIOT Act in which 99.5% of the time it's being used for domestic crime. 

We have also seen that the Drug Enforcement Agency, it is alleged, is using information gathered under the PATRIOT Act to then go back and re-create cases against people for domestic crime. The question we have to ask ourselves is are we really willing -- are we so frightened that we're willing to give up our freedoms? Are we willing to trade liberty for security? 

The U.S. Court of Appeals I think had some great points that they made when they used against the government, and I think what's important to know is that the president has continued to do this illegally. You've seen him on television. The president has been saying well, Congress is just getting in the way, if Congress would just do their job and get rid of this, everything would be okay. But the truth of the matter is Congress never authorized this. Even the authors of the PATRIOT Act said that this was not something that Congress ever even contemplated. 

The court is now saying that as well. This was done by the Executive Branch. Admittedly, both the Republican Executive Branch and Democratic Executive Branch, but this wasn't created by Congress. So when the president says well, Congress should just do this, the question that's never been asked by anyone in the media is why doesn't he stop it. Everybody that has given advice has said he would, he will come out and say he believes in a balanced solution, but he really is just abdicating the solution and has never discontinued the program. 

Even when he has been told explicitly by the court that the program is an illegal program. This is what the U.S. Court of Appeals says in the case A.C.L.U. versus Clapper. We agree with the appellants that such an expansive concept of relevance is unprecedented and unwarranted. The records demanded are not those of suspects under investigation or even of people or businesses that have had contact with suspects or of people or businesses that have had contacts with others who have had contact, so even two steps removed, we're gathering records that are completely irrelevant to the investigation. We're gathering up the records of innocent Americans. 

Now, the other side will say well, we're not looking at them. So I have been thinking about this. Our founders objected to the British soldiers writing warrants. They objected to them coming in their house and gathering their papers. Do you think our framers would have been happy if the British government said okay, we're just breaking your door down, we're just getting your papers, but we're not going to look at them? 

Do you think that would have changed the mindset of the framers? So the fact that they say they're not looking at our records is that any comfort or should it be comfort, the act of violation is in taking your records. The act of violation is in allowing the police or a form of the police, the F.B.I. to write warrants that are not signed by a judge. 

The court goes on to say the interpretation that the government asks us to adopt defies any limiting principle. The idea of a limiting principle when the court looks at things is that the way I see it, it's a difference between something being arbitrary where there is no sort of principle that confines what can happen. If you have a law that has no limiting principle, it's essentially arbitrary. 

This is what Hayek wrote about when he wrote in the Road to Serfdom. He wrote about the difference between the rule of law and arbitrary and having an arbitrary interpretation of the law. The danger to having an arbitrary interpretation of the law and the danger to having general warrants is that they have been used in the past with bias. People have brought their own bias into this. In the 1960's, the bias was against civil rights activists, it was against Vietnam War 

In the 1940's, the bias was in incarcerating and in interning Japanese Americans. But the thing that was consistent in all of these is that there was a generalization, generalization based on the color of your skin, whether you were Asian American or African-American, and also about the shade of your ideology. There is a danger in allowing the government to generalize without suspicion and to disobey the Fourth Amendment, and that danger comes that a government could one day generalize and bias could enter into things. 

We have on our records right now laws that allow an American citizen to be detained. It's not specifically part of the PATRIOT Act, but it's along the same lines of this, that you're getting rid of a process, the due process amendments and the ability of the Bill of Rights to protect the individual. When we allow an individual to be detained without a trial, what happens is there is the possibility that someone could decide we don't like those people, and when you say well, that could never happen, think about the times in our history when it has. Richard Jewel, everybody said he was the Olympic bomber. 

He was convicted on TV. Within hours, people said Richard Jewel's guilty. Think about if he had been a black man in 1920 in the south what might have happened to him. Think about the possibility for bias entering into our government. Think about the fact what Madison said about government is. Madison said that, “we restrain government because we're worried that government may not be comprised of angels. If government were comprised of angels we wouldn't have to worry about restraining government.” 

Patrick Henry said that the Constitution was about restraining government, not the people. It's not enough for people to say, oh, I'm a good man or I'm a good person, or the N.S.A. would never do this. The other problem that makes us doubtful is that the N.S.A. hasn't been honest with us. If they wanted to develop trust again, the president should have immediately let go the person who lied to us, the Director of National Intelligence. 

The appeals court concluded by saying that the government's bulk collection of telephone metadata, metadata exceeds the scope of what Congress has authorized and therefore violates Section 215 of the PATRIOT Act. Some will try to argue that this debate was not worth the time we took on it. I cooperate disagree more. I'm like everybody else, you know, I prize my time with my family and being at home object the weekends. And I wish we would have done this in a more sensitive way where we had had more time hand and had an open amendment process. 

But we waited until the end, we waited until the final deadline. And this is a characteristic of government and it's a flaw in government, frankly. We lurch from deadline to deadline. People wonder why Congress is so unpopular. It's because we go from deadline to deadline and then it's hurry up, we have no time to debate, you must pass it as is. 

The biggest debate against amendments is -- and it finally convinced even the people who didn't like this. They so much dislike amendments and slowing down the process that they're just going to take it even though they don't like it, we'll pass what the house passed and it's unlikely any amendments will pass. About but the thing is we need to get away from lurching from deadline to deadline. What happens with budget or spending or any of these bills is we're presented with thousand-page bills with only hours to go. 

About a year ago this came up and at that time we were presented with a thousand-page bill with two hours to go and I read the Senate rules and it said we're supposed to be presented with the bill for 48 hours in advance. So I raised my hand and made a motion. And the motion I made was, guys, we're breaking the rules here. Men and women, we're breaking the rules here. 

So everyone just voted to amend the rules for that bill and ignore the rules. This is why the American people are so frustrated. People here in town think I'm making a huge mistake. Some of them I think secretly want there to be an attack on the United States so they can blame it on me. One of the people in the media the other day came up to me and said, oh, when there's a great attack aren't you going to feel guilty you caused this attack? 

It's like the people who attack us are responsible for attacks on us. Do we blame the police chief for the attack of the Boston bombers? The thing is that there can be attacks even if we use the Constitution, but there have been attacks while collecting your bulk data. So the ones who say when an attack occurs it's going to be all your fault, are any of them willing to accept the blame, we have bulk collection now, are any of them willing to accept the blame for the Boston bombing, for the recent shooting in Garland? 

No, but they'll be the first to point fingers and say, oh, yeah it's all your fault, we never should have given up on this great program. I'm completely convinced that we can obey the Constitution, use the Fourth Amendment as intended, spirit and letter of the law, and catch terrorists. When we look objectively at this program, when they analyzed the classified information they found that there was no unique data. 

We had to fight them tooth and nail because they started out saying 52 cases were cracked by the bulk data program. But when when this president's bipartisan commission looked at it, it turned out none of that was true. This gets back to the trust issue. If we're going to be lied to by the Director of National Intelligence, it's hard for us to believe them when they come forward and they say, oh, this is protecting us, we have to have it. 

But what we're hearing is, information from someone who really didn't think it was a big deal to lie to us about whether or not the program even existed. Mark my words, the battle's not over. There are some -- and I talked with one of the -- I would say one of the smarter people in Silicon Valley who knows this from an intimate level how things work and how the codes and programs work, and he maintains that the bulk collection of phone data is the tip of the iceberg. 

That there's more information in other data pools that are classified, some of this is done through an Executive Order called 12333. I'm not sure I know everything in it. I've had no briefings on it. Anything I tell you is from the newspaper alone. But the thing is that I would like to know, are we also collecting your credit card information, are we collecting your texts, are we collecting your emails? 

They've already told us the Fourth Amendment doesn't protect your emails. Even the content after six months. They've told you the Fourth Amendment doesn't apply to your records at all. So be very careful about the people who say trust us, we'll never violate your freedoms. We'll never take advantage of things. The president's privacy and civil liberties oversight board's conclusion was that Section 215 of the PATRIOT Act has known minimal value in safeguarding the nation from terrorism. 

We not have identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome. The president's privacy board went on to say the government's collection of a person's entire telephone calling history has a significant and detrimental effect on individual privacy. 

When they talked about whether or not the phone records were relevant to an investigation, the president's commission said this, "First the telephone records acquired under the program have no connection to any specific F.B.I. Investigation at the time of their collection.

Second, because the records are collected in bulk, potentially encompassing all telephone calling records across the nation, they cannot be regarded as relevant to any F.B.I. Investigation. Here's the continuing danger to us, though. It is I think maybe a minor success we'll prevent the government from collecting these records. But realize that the interpretation of this will still occur in secret in the FISA court and that this is the FISA court that said that collecting everyone's records was relevant. 

It completely destroys the notion that the word "Relevant" has any meaning at all. This will be the question, whether or not we can trust the FISA court to make an interpretation that is at a higher degree of discernment than the one in which they said relevant can mean anything. The court of the original U.S. Freedom Act as patches by the House Committee was a better bill and has gradually watered down until even the Director of National Intelligence, the one who lied about the program, now supports it which gives me some misgivings. 

But the records that will be collected, the question is how will we have an interpretation by the FISA court. The original bill that had an advocate, and I thought this was a good part of the original bill. There would be a judicial advocate who would argue on the side of those who are having their records taken. And so there would be an adversarial court, lawyers on both sides. Many people who write about jurisprudence and trying to find justice say one of the essential functions of a court system in order to find justice is that there has to be a lawyer on both sides. There has to be an advocate on both sides. The truth isn't always easy to find. 

The truth is presentation of facts by one side; presentation of contrary by the other side, and someone has to figure out which facts are more believable or which facts trump other facts. And so I think a judicial advocate would have been good. There's still going to have it, they call it by a different name now but it will be optional at the discretion of the FISA court. So the court that ruled that all of your records are relevant now will have a choice as to whether or not to give you an advocate. 

That doesn't give me a great deal of comfort. There are other ways we could do this. We occasionally do look at terrorism cases in regular federal court. And when names come up that could jeopardize someone's safety and our intelligence agency or a secret, federal courts can go into secret assess. I've heard the Senator from Oregon often mention this and I think it's a great point. That no one wants to reveal the names of anyone or the code or the secrets of how we do this but if we're talking about constitutional principles, we want to do it in the open. 

Law shouldn't be investigated in secret. As we move forward, the PATRIOT Act will expire tonight. It will only be temporary. They will ultimately get their way. But I think the majority of the American people actually do believe government has gone too far. In Washington it's the opposite. But I think Washington is out of touch. There will be 80 votes in order to say continue the PATRIOT Act. Maybe more. 

But if you go into the general public, if you get outside the beltway and visit America, you find it's completely the opposite. There was a poll a couple weeks ago that said over 80% of people under age 40, over 80% of them think that the government collecting your phone records is wrong. And shouldn't occur. So I think really this will be useful. 

People say you're destroying yourself, you should have never done this, the American people won't side with you. And people wish me harm and wish that this will be unsuccessful. But you know what, I came here to defend the Bill of Rights and to defend the constitution, popular or not, but I frankly think that the Bill of Rights and the constitution are very popular, very important, and I will continue as long as I have breath and as long as I'm here to defend them and with that.

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RUBIO COMMENTS ON EXPIRATION OF PATRIOT ACT PROVISIONS

Washington, D.C.– U.S. Senator Marco Rubio (R-FL), a member of the Select Committee on Intelligence, issued the following statement regarding the expiration of Patriot Act provisions: