[Congressional Record Volume 162, Number 99 (Tuesday, June 21, 2016)]
[Senate]
[Pages S4383-S4404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
2016
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of H.R. 2578, which the clerk will report.
The senior assistant legislative clerk read as follows:
A bill (H.R. 2578) making appropriations for the
Departments of Commerce and Justice, Science, and Related
Agencies for the fiscal year ending September 30, 2016, and
for other purposes.
Pending:
Shelby/Mikulski amendment No. 4685, in the nature of a
substitute.
McConnell (for McCain) amendment No. 4787 (to amendment No.
4685), to amend section 2709 of title 18, United States Code,
to clarify that the Government may obtain a specified set of
electronic communication transactional records under that
section, and to make permanent the authority for individual
terrorists to be treated as agents of foreign powers under
the Foreign Intelligence Surveillance Act of 1978.
McConnell motion to recommit the bill to the Committee on
Appropriations for a period of 14 days.
The PRESIDING OFFICER. The Senator from Utah, the President Pro
Tempore.
Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted
to complete my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Social Security Trustees' Reports
Mr. HATCH. Mr. President, a few weeks ago I came to the floor to
discuss the situation surrounding President Obama's nominees to serve
as public trustees on the board of trustees for the various Social
Security and Medicare trust funds. At that time, I noted that these
nominations had become the center of a political firestorm. Sadly, that
firestorm has continued in the weeks since I last spoke about this
issue. While I have little desire to delve into what is a manufactured
controversy, I do want to take some time to note how some events taking
place this week should impact this particular debate.
Tomorrow, the Social Security and Medicare Boards of Trustees will
release their annual reports, providing their assessment of the past,
present, and projected future financial conditions of the trust funds.
For decades, these reports have largely been devoid of politics, which
is important because it allows policymakers and the general public to
trust the numbers that are reported.
Currently, there are four senior Obama administration officials who
serve as trustees on these various Boards. There are also two positions
for public trustee--one from each party according to the law--that are
currently vacant. While it is not unheard of for the Boards to issue
their reports without confirmed public trustees in place, this
administration has issued more trustees' reports with vacancies in the
public trustee positions than any other administration.
In a recent article in the Huffington Post, Senators Warren, Schumer,
and Whitehouse put forth some serious allegations of political
tampering with recent Social Security trustees' reports, stemming,
according to their arguments, from the supposed undue influence of one
particular public trustee. That trustee, Dr. Charles Blahous, has been
renominated by President Obama.
Specifically, these Senators alleged in their article that, due
solely to the presence of this single public trustee on the Board,
nefarious assumptions were somehow inserted into the trustees' report
analysis, leading the report to overstate the financial challenges
facing Social Security. My good friend, Senator Schumer of New York,
echoed the very same allegations in a recent Finance Committee markup
where we favorably reported President Obama's nominees for public
trustee. And, I emphasize, these are President Obama's nominees.
In the words of these prominent and outspoken Senators, the 2014
Social Security trustees' report, ``curiously incorporated a number of
assumptions playing up the potential of future insolvency of the
program--a key talking point in the right-wing war on Social
Security.'' Moreover, according to those Senators, the assumptions
``were so troublesome that the independent Chief Actuary for Social
Security took the unprecedented step of writing a public statement of
actuarial opinion disagreeing with the report.'' They go on to say that
``after similarly questionable elements appeared in the 2015
[[Page S4384]]
report, the Chief Actuary reported this extraordinary public rebuke.''
These assumptions--and Dr. Blahous's very presence on the Board--are,
according to my colleagues, part of an effort funded and directed by
the infamous Koch brothers to dismantle Social Security and further an
anti-government agenda. In fact, their article was ridiculously titled
``The Koch Brothers Are Trying To Handpick Government Officials. We
Have To Stop Them.''
These are serious allegations that call into question the integrity
of the annual trustees' reports. Yet my colleagues have stated these
allegations repeatedly in various forms, from committee hearings, to
Twitter feeds, to campaign fundraising materials, all without any
apparent regard for these implications. Worst of all, the charges are
also patently false, and they cannot be supported by fact, reason, or
even common sense.
Setting aside the almost paranoid and conspiratorial tone my
colleagues have used when making these claims and even assuming, for
the sake of argument, that supposedly questionable assumptions were
baked into those trustees' reports, there is simply no remotely
possible way that they were used solely because of Dr. Blahous's
influence. Given the structure of these Boards, if a single public
trustee were able to have such a pernicious influence on assumptions
incorporated into reports that warranted some sort of alert from the
Chief Actuary, then all of the other trustees--Treasury Secretary Lew,
Labor Secretary Perez, Health and Human Services Secretary Burwell,
Acting Commissioner of Social Security Colvin, the Democratic Public
Trustee Robert Reischauer--and their staffs were either complicit in
the perverse distortions or were too incompetent and powerless to
detect them. Give me a break.
In other words, although they conveniently overlook these facts, when
my colleagues publicly indict the integrity of the Social Security
trustees' reports, they are implicitly and necessarily calling into
question the competence and efficiency of senior members of President
Obama's Cabinet and, really, that of President Obama himself, who
renominated Dr. Blahous to serve a second term.
Of course, being honest about the makeup of the Board and the process
by which these reports are compiled would make fundraising emails and
campaign commercials, not to mention inflammatory entries on a
Senator's Twitter feed, far less compelling. Recognizing this, my
colleagues have opted to simply imply that Dr. Blahous--only one of the
whole number of those on the Board--was solely responsible for
allegedly questionable contents of the reports, apparently hoping no
one will fact-check their assertions. I have to, as chairman of the
Senate Finance Committee, fact-check these not so very honest
assertions.
Sadly, no one from the Obama administration has stepped forward to
defend the President's nominee and refute these wild claims. More
curious, however, is the fact that no one from the administration has
publicly come forth to defend themselves from these Senators' charges
of apparent incompetence and powerlessness in the face of Dr. Blahous's
dastardly influence. I think we need a clearer picture of what went on
in the compiling of those reports.
In order to clear the air on this, I sent letters earlier today to
the administration officials who sit on the Board to see if they agree
with the claim that the reports they all willingly signed included some
unwarranted assumptions designed to undermine Social Security and
requesting that they provide me with a full briefing on the issue.
Of course, the absurdity of my various colleagues' claims goes beyond
their implicit condemnation of members of President Obama's Cabinet
because these senior officials were not the only line of defense
standing between the report and the alleged conspiracy to take down
Social Security.
If these reports included some pernicious assumptions, they not only
slipped by the Secretaries of Treasury, Labor, and HHS, and the Acting
Social Security Commissioner, they must also have had to slip the
notice of 10 members of the 2015 Technical Panel on Assumptions and
Methods, which was commissioned by the Social Security Advisory Board
and contained many recognized and highly respected experts, including a
Nobel Prize-winning economist.
In other words, the pernicious and allegedly billionaire-inspired
assumptions that a single public trustee was somehow able to covertly
insert into multiple trustees' reports in order to overstate Social
Security's financial challenges were so cleverly advanced that they
eluded prominent Obama administration officials, their staffs, 10
highly skilled, expert researchers, and the Social Security Advisory
Board staff. That is ridiculous. And only the Chief Actuary was able to
detect the skullduggery.
That is still not the end of it, however. The nonpartisan
Congressional Budget Office, CBO, has also produced forecasts of Social
Security's finances, using some assumptions that differ from those used
by the trustees for their reports but which identify even greater
financial challenges to the Social Security trust funds than those
concluded in the recent trustees' reports.
According to Senators Warren, Schumer, and Whitehouse, Dr. Blahous,
serving as an agent for the Kochs, was able to skew with nefarious
assumptions as part of ``the right-wing war on Social Security'' to
play up the potential future insolvency of the program. Even so, he
apparently wasn't diabolical enough because he ended up duping the
other trustees into assigning lesser financial challenges to Social
Security than those seen by the CBO.
Of course, perhaps my colleagues believe that this anti-government
conspiracy has somehow infiltrated CBO, as well. If that is the case,
perhaps they should come forward and reveal to the public just how deep
the rabbit hole goes.
Needless to say, none of this is sensible. It doesn't even pass the
laugh test. And Dr. Blahous's influence on the trustees' reports isn't
the only thing my colleagues have overstated in their writings, tweets,
and campaign materials. They also dramatically overstate the
``rebukes'' issued by the Chief Actuary for the 2014 and 2015 reports.
It is actually shameful for my colleagues to do this.
In truth, there actually were no rebukes or disagreements included in
the actuary reports. In fact, for both years in question, the Chief
Actuary wrote that ``the assumptions used and the resulting actuarial
estimates are, individually and in the aggregate, reasonable for the
purpose of evaluating the financial and actuarial status of the trust
funds, taking into consideration the past experience and future
expectations for the population, the economy, and the program.''
There were caveats which largely reflected the Chief Actuary's own
opinions but nothing that would call into question the integrity of the
reports as my colleagues claim. As I have said in the past, these
tactics are, in my view, shameful, and they have little to do with
protecting the promise of Social Security. Instead, they are 100
percent political, designed to serve as a proxy for what political
operatives hope will be an epic campaign battle over Social Security,
something the other side constantly wages falsely. And, as is too often
the case, the truth has taken a backseat to campaign talking points and
fundraising efforts.
Rather than engage on the substance of their preferred Social
Security policies--and those of their presumptive Presidential
nominee--my friends have opted to put forward false assertions and
allegations that cannot be supported by the facts in order to attack a
nominee's integrity and further a twisted story about supposed
Republican efforts to ``privatize'' Social Security and ``turn it over
to Wall Street.''
It is not hard to see why some of my friends on the other side and
their political allies in the activist community want to construct this
type of conspiracy with regard to Social Security. After all, in recent
years, the only meaningful advancement to prolong the life of any
Social Security trust fund took place last year under a Republican-
controlled Congress. Last year, Republicans put together a bipartisan
package to avert benefit cuts for disability beneficiaries. At best
Democrats only reluctantly came on board. That package, which President
Obama
[[Page S4385]]
signed into law, contained no ``privatization.'' The only thing close
to a ``benefit cut'' was a provision on retirement benefits claiming
strategies based on provisions put forward in President Obama's budget.
Yet, rather than help avert benefit cuts for disabled American
workers and improve the disability insurance program, many of my
friends on the other side spent most of their energy last year raising
campaign money by scaring Social Security beneficiaries and giving
speeches claiming that Republicans wanted to do nothing more than
privatize Social Security and turn it over to Wall Street. We have been
seeing those kind of tactics in every election for decades. It is
shameful. Even with these constant attacks and distortions coming from
my friends on the other side throughout 2015, Republicans constructed a
package that enacted the most meaningful reforms to Social Security in
three decades and averted massive benefit cuts. We did so by dragging
most Democrats along kicking and screaming. It is not surprising that
my colleagues are feeling the pressure to reassert their claims of
ownership of all things Social Security in this election cycle, which
they seem to do every election cycle--falsely, by the way. It is
shameful.
By the way, in the midst of that 2015 debate, a prominent Democratic
Senator gave a speech at the headquarters of a leftwing advocacy
group--one that happens to receive funding from a noted leftist
billionaire--warning of ``attacks from the far right'' on Social
Security and ``backdoor attempts to dismantle and privatize Social
Security by discrediting disability insurance.'' Curiously, that same
event was attended by the Chief Actuary of Social Security, who was
also a speaker at the event, and it was live tweeted by the Social
Security Administration. Yet no one from the Republican Party published
any inflammatory articles accusing the Chief Actuary of using his title
or position in association with a politically partisan event. No one
accused him of ``burnishing his credentials'' by speaking at a highly
partisan event. Certainly, no one made claims of a vast leftist
conspiracy to plant progressive sympathizers in influential positions
in order to advance a leftist view on Social Security or to capture the
agency.
By contrast, let's consider what that Huffington Post article and
three of my Democratic colleagues said about Dr. Charles Blahous. The
article claims that he ``burnishes his credentials'' as a public
trustee by daring to write articles outside of his role as public
trustee that identify and analyze financial challenges facing Social
Security and Medicare. Gee, I would think that would be part of his
responsibility. The article decries his affiliation with his own
workplace, calling it ``a Koch front-group,'' which zealously approves
an ``anti-government agenda.''
Essentially, these Senators are saying that if you dare have ideas
and thoughts with which they disagree, even if you offer them in
reasoned writings and speeches, then you should be censored and deemed
unfit to serve in any public capacity.
My friends on the other side of the aisle have unfortunately injected
needless politics into Social Security trustee reports and have
threatened the integrity of those very reports with their allegations,
as well as attacking an individual based on false claims.
Unfortunately, it seems that in an election year, Democrats are intent
on constructing a ``privatization'' straw man and using it to scare
seniors into sending checks and votes to Democrats--something we have
become pretty used to, really. That is despicable, to say the least. On
the altar of election-year politics, they are apparently more than
willing to sacrifice the historic transparency and integrity provided
by the trustees' reports. Indeed, they have gone out of their way to
claim that the reports are already politically compromised despite
having no credible evidence that such is the case--none, zero.
Thanks to a bipartisan desire to have the facts on Social Security's
trust funds reported objectively and honestly, we have gone for decades
with trustee reports that were largely free of political controversy.
Unfortunately, some of my friends in the Senate, spurred on by their
activist political operatives, seem no longer to have that political
desire. It would truly be sad and not in the interest of current or
future Social Security beneficiaries if trustees' reports now become
mere political documents. While that is the road my colleagues
apparently want to send us down--at least during this election year--I
plan to do all I can to ensure that will not become the case.
I am really concerned when I see people of this dimension in the
greatest legislative body in the world using the Social Security ploy
again in such a despicable way. It is hard for me to understand. I
think it is hard for anybody who looks at it carefully to understand.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. Mr. President, I have a question for the distinguished
Senator from Utah.
What are the Senator's proposals to stabilize the Social Security
trust fund?
Mr. HATCH. I am sorry; I did not hear the question.
Ms. MIKULSKI. Mr. President, the Senator from Utah said that we
Democrats have politicized the debate.
Mr. HATCH. I didn't say all of you have.
Ms. MIKULSKI. No, but my friend did say that we have injected
politics into the Social Security debate and then went on to talk about
how others have written articles. I don't dispute what my friend said.
But because he chairs the Finance Committee, I wondered what his five
ideas are for the stabilization of the trust fund. Maybe we can find
common ground because it is a troubling matter.
Mr. HATCH. Mr. President, I am willing to look at the trustees'
reports on this. There are six trustees, including Mr. Blahous, who is
the only Republican. I am not even sure if he is a Republican, but I
think he is. They all signed off on these reports, and they all
indicated we have to be careful about Social Security or we are going
to have a rough time keeping it stable.
I don't think anybody in their right mind thinks that we can continue
to keep doing what we are doing without finding some way of shoring
this up.
Ms. MIKULSKI. Right. As the chair of the committee, my question is
this: What are my friend's ideas so we can find common ground?
Mr. HATCH. Mr. President, my ideas are to not put out false
information or false language.
Ms. MIKULSKI. OK, that is one we agree on.
Mr. HATCH. I have to say that our ideas are to find every way
possible to stabilize the Social Security system.
Ms. MIKULSKI. What is an example of one?
Mr. HATCH. Who knows. All I can say is that we have held hearings on
it, and we have had everything from more taxes to pay for it, which
isn't very exciting to most people around here, to more government
programs to pay for, to any number of other social programs to pay for,
and, frankly, none of those have been picked up by either side, to be
honest with you.
It is apparent that we are going to have to do something to shore up
Social Security in the future, and the question is this: Are we going
to just make it a sinkhole where all we do is put more and more money
into it or are we going to live with the reality that we are spending
ourselves blind in this country? I don't see any desire on the part of
my colleagues on the other side to live with that reality right now.
Ms. MIKULSKI. Mr. President, I appreciate the response of the Senator
from Utah, for whom I have a great deal of respect, but I want the
record to show that the Democrats are not playing some kind of
privatization card. The proposal to do that has come from the other
party time and again.
Mr. HATCH. Mr. President, will the Senator yield on that?
Ms. MIKULSKI. Mr. President, I believe I have the floor.
The PRESIDING OFFICER. The Senator from Maryland has the floor.
Ms. MIKULSKI. Mr. President, we are not playing a Social Security
card. We don't believe you should play with Social Security, and that
is why many of us opposed the chained CPI. Everybody knows what chained
CPI is. That is Washington talk that would dramatically and irrevocably
lower the cost of living that Social Security beneficiaries already
get.
If speaking up to protect and make sure senior citizens are getting
their
[[Page S4386]]
cost of living is playing the Social Security card, deal me in. Talking
about Social Security solvency and trying to find common ground and
identifying what are the basic proposals that we could at least discuss
is not playing a card. I don't believe in playing the card, and I don't
believe in playing the game.
Let's not go around implying that Democrats are somehow or another
making Social Security a political football. It is a political
football, but what I worry about is, in the game of political football
on Social Security, who gets kicked around but the seniors. That is who
gets kicked around in the game of political football on Social
Security.
Yes, the stability of the trust fund is a very real issue, and I note
that the ranking member on the Finance Committee is here, and I ask if
the Senator wishes to speak.
Mr. HATCH. Mr. President, I would like to respond.
Ms. MIKULSKI. Mr. President, does Senator Wyden wish to speak at this
time?
Mr. WYDEN. Mr. President, I say to my colleague that I just walked in
and I am prepared to speak on another subject, whenever it is
convenient for my colleague.
The PRESIDING OFFICER. The Senator from Utah.
Ms. MIKULSKI. Mr. President, I haven't yielded the floor yet. I asked
because the distinguished Senator from Utah is the chair of the Finance
Committee. The ranking member has arrived, and I didn't know if they
planned a colloquy. That is why I turned and asked my colleague if he
wished to make a comment, but I was not giving up the floor.
The PRESIDING OFFICER. The Senator from Maryland is not permitted to
yield, apparently, but is certainly permitted to speak.
Ms. MIKULSKI. Mr. President, I thank the Senator from Ohio, who is
the Presiding Officer.
We have been in session for over a half-hour, and I have spoken for
only 5 minutes. I just want to reiterate that the solvency of Social
Security and its trust fund is indeed of significant national interest.
We have had a variety of commissions. We have had a lot of proposals.
We have had a lot of meetings. We now need to have the will to act, but
the will to act goes in pinpointing solutions and not pointing a finger
at someone because of the political party they belong to.
Mr. President, I am now going to yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I was just explaining that we just fixed
the disability insurance fund last year. I wish to also point out that
the last time I recall anybody talking about the privatization of
Social Security was President Clinton. The last time I heard, he was a
Democrat.
All I am saying is this: I don't know anybody on our side who is
advocating right now that we should privatize Social Security. I think
everybody is advocating that we should shore it up and somehow or
another strengthen it. I am one of those people. Yet we have a number
of Senators here alleging that one of the six trustees--it is so out of
line to say that--has all the evidence to sign off on a report that
Social Security needs some help, and they are saying that this man, who
happens to be the only Republican on the board of trustees, is trying
to push a privatization schedule. That is all I am bringing up. I can
say that I have heard Democrats talk about privatization as well. It is
one of the subjects that I suppose has to come up in conjunction with
this: Are we going to save Social Security? Will we do what is
necessary here? Are we just going to keep talking about it like we do
year after year? Are we going to allow one side to continue to distort
what Social Security is all about? And are we going to do it to the
detriment of every Republican in this body who feels completely
otherwise? That is what I am talking about.
I think most Democrats want to help secure Social Security, as I do,
but to use that as a political ploy every time we turn around every 2
years is just plain not right. That is what I am decrying here today.
We ought to all look and see what we can do to strengthen Social
Security, and we ought to look at every possible way of doing so and
choose the best approaches we possibly can. But to have false
allegations thrown out there just for political reasons to scare the
people out there who are on Social Security, unjustly scare them, I
think is despicable, and I think we ought to put a stop to it and quit
making Social Security the paddle ball for Democrats in our political
process.
I am chairman of the Finance Committee. I have every desire to work
with Democrats to resolve all of these issues, and I am open to
whatever will help to resolve them. Our senior citizens deserve that
type of treatment. I want to make sure we don't just make this a big
political issue, as has been done here.
Blahous is a very important person, a strong personality, a strong,
highly educated person who has given great service in this area. I just
don't think it is proper to make him a symbol in what really is a false
set of accusations. I am not going to put up with it, and I don't think
anybody else should either. And I don't think my colleagues on the
other side, if they really understand the situation, will put up with
it either.
We have a body that works together in many good ways. I have total
respect for the distinguished Senator from Maryland. She is somebody I
do work with, whom I want to work with. She is thoughtful. She has done
a great job on her committee--her committees, I should say--and she has
a friend in me, and so do the three who have been doing this. They are
friends, but they shouldn't be doing that. That is all I am saying.
I yield the floor.
The PRESIDING OFFICER (Mr. Lankford). The Senator from Oregon.
Amendment No. 4787
Mr. WYDEN. Mr. President, I believe the next vote will take place on
the amendment offered by the senior Senator from Arizona that would
allow for the issuance of what are called national security letters, or
NSLs, which are administrative subpoenas, and there will be an
additional provision on what is called lone wolf. I am going to direct
most of my comments for colleagues on the national security letters
because the lone wolf provision was reauthorized for another 4 years as
part of the USA FREEDOM Act.
I want colleagues to understand that this tool, which certainly has
been debated, while never used--it wouldn't have applied to the Orlando
or San Bernardino cases--I want colleagues to understand that it is the
law of the land today, and in the USA FREEDOM Act, it was extended for
another 4 years.
What I would like to do, though, is focus my remarks on the amendment
from the senior Senator from Arizona as it relates to national security
letters. In effect, what the senior Senator from Arizona is seeking to
do is add back a provision that the administration of George W. Bush--
not exactly an administration people would accuse of being soft on
terror--the senior Senator from Arizona is seeking to add back this
provision that was rejected by the administration of George W. Bush.
Here is how the amendment offered by the senior Senator from Arizona
would work. Under his amendment, which we will vote on tomorrow,
national security letters, which are called NSLs, could be issued by
any FBI field office to demand records from a company without going to
a judge or without any other oversight whatsoever. So let's repeat that
because what colleagues have wanted to know is exactly what this would
cover. The McCain amendment would allow for the government to demand
email records, text message logs, Web browsing history, and certain
types of other location information without any court oversight
whatsoever.
As I have indicated, this had been on the books for a number of
years, and the administration of George W. Bush said it was
unnecessary--in effect, that it was unnecessarily intrusive.
In addition, since the Bush administration acted, I want to make
mention of the fact that in the USA FREEDOM Act, the Congress adopted
something I have been working on for a number of years--since really
2013--to, in effect, give the government additional authority in the
case of emergencies.
In other words, I have always felt the Fourth Amendment and the
warrant process was something that was very
[[Page S4387]]
special in our country, but we live, of course, in a very dangerous
time. We are all concerned about the security and the safety and the
well-being of the people we represent. So I said, in section 102 of the
FREEDOM Act, let's make sure the FBI has all the authorities necessary
to protect the American people in the instance of an emergency. So the
USA FREEDOM Act gave the FBI the authority to demand all the records
they deemed necessary and then, in effect, after the fact--after the
fact--come back and settle up with the court. So unless you are opposed
to court oversight after the fact, unless you are opposed to court
oversight altogether, there is no reason to support the amendment
offered by the senior Senator from Arizona.
A number of colleagues have also asked about the history of these
national security letters. There is a long history of abuse and misuse,
a long and very undistinguished record of abusive practices.
The Justice Department inspector general has issued four separate
reports over the past few years--four separate reports--documenting a
number of serious problems. The inspector general found that data
collected pursuant to the national security letters was stored
indefinitely and used to gain access to private information in cases
that weren't relevant to an FBI investigation, and the national
security letters were used to collect tens of thousands of records at a
time.
Some have also made mention of the fact that a company that gets one
of these national security letters could challenge it in court. That is
technically right. Big companies that have the resources can challenge
them. The small companies invariably say they can't afford to do that.
So, again, no oversight. No oversight--particularly striking given the
fact that, as I have noted, in the FREEDOM Act--something I felt very
strongly about--we gave the government additional authority in the
instance of emergencies.
So we have now, by virtue of the amendment we will vote on tomorrow
from my friend and colleague--we certainly have agreed on plenty of
issues over the years. This is one where we see it differently. You
have something the Bush administration rejected. The administration of
George W. Bush--hardly one that we would say is sympathetic to the idea
of weakening the government's stance against terror--they thought this
was a mistake. They thought the amendment that there will be an effort
to add back in was a mistake, and it was taken out. This would not have
beefed up the fight against what happened in San Bernardino and
Orlando.
The FBI says it would help them with paperwork. I am not going to
quibble with that. I have great respect for the FBI. But we are going
to abandon court oversight in an area where the inspector general has
documented abuses because it is convenient?
Colleagues, I will close with this: It is a dangerous time. If you
sit on the Intelligence Committee, as I have for a number of years, you
know that is not in question. The American people want policies that
promote their security and their liberty. That is what we are aiming
for. What is being advanced in this amendment is an idea that really
doesn't do either. It doesn't advance the security and well-being of
the American people, and it certainly erodes their liberties.
So I hope tomorrow, when we have the vote on this amendment, that
colleagues will look at the history. It was rejected by the Bush
administration. Now we have emergency authority, I say to my
colleagues, for the government to get information when it needs it.
After the fact, the government can come back and settle up.
I think this amendment is a very substantial mistake. There has been
a long history documented by the inspector general of abuses with these
national security letters. I urge my colleagues tomorrow to oppose this
amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, the White House approved the FBI's request
for this fix and sent forward a proposal, and then FBI Director James
Comey, who I think is well respected--in fact, probably one of the most
respected men in America--summed up the importance of this amendment,
the Director of the FBI. No one who I know of has accused the Director
of the FBI of trying to adopt some unconstitutional practices or gather
power upon himself and his agency. Here is what he said: This amendment
``would be enormously helpful.'' That is despite what the Senator from
Oregon says. He said this is essentially ``a typo in the law that was
passed a number of years ago that requires us to get records, ordinary
transaction records that we can get in most contexts with a non-court
order, because it doesn't involve content of any kind, to go to the
FISA court to get a court order to get these records. Nobody intended
that.'' That is what the Director of the FBI says. That is what the
record shows, as is important. As the Director of the FBI says:
Nobody intended that. Nobody I've heard thinks that's
necessary. It would save us a tremendous amount of work hours
if we could fix that, without any compromise to anyone's
civil liberties or civil rights.
I agree with the Director of the FBI.
This amendment--I am astounded, very frankly, that there is not a
unanimous vote on this. It is simple. If the FBI is able to go into
your financial written records, if they are able to go into your
telephone records, then, pray tell, what is the difference between
those and electronic records? It just so happens electronic records are
much larger.
So don't take my word for it, I say to my colleagues, but I would
listen to the Federal Law Enforcement Officers Association--that
renowned ``corrupt'' organization. The Federal Law Enforcement Officers
Association--the Nation's largest nonpartisan professional association
which represents Federal law enforcement officers from every Federal
law enforcement agency, including the FBI--strongly supports this
amendment.
They go on to say--again, contrary to what the Senator from Oregon
says, the Federal Law Enforcement Officers Association says that this
amendment ``would correct an oversight in the law that has impeded the
FBI's ability to obtain these records in national security cases on a
timely basis.'' They go on to say that ``for over fifteen years--
including the eight years after 9/11--the FBI continued to use''--what
they are talking about now is they want ``to gather electronic
communications transactional records. Significantly, this authority was
never used to acquire these records indiscriminantly.'' They go on to
say that the amendment ``is necessary to protect America from terrorist
threats and transnational criminal organizations.''
This is what those men and women--thousands of them are members of
this organization. The list is incredibly long. The Federal law
enforcement agencies believe this amendment is necessary to protect
them and America from terrorist threats and transnational criminal
organizations. It is clear.
Mr. President, I ask unanimous consent that the following letters of
support be printed in the Record: the Federal Law Enforcement Officers
Association letter, the National Fraternal Order of Police letter, and
the Federal Bureau of Investigation Agents Association letter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Federal Law Enforcement
Officers Association,
Washington, DC, June 10, 2016.
Hon. Charles E. Grassley,
Chairman, Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Judiciary Committee, U.S. Senate, Washington,
DC.
Dear Chairman Grassley and Ranking Member Leahy: The
Federal Law Enforcement Officers Association (FLEOA)--the
nation's largest non-partisan professional association which
represents federal law enforcement officers from every
federal law enforcement agency, including the FBI--strongly
supports Senator Cornyn's effort to address issues related to
Electronic Communication Transactional Records (ECTRs) during
the Senate Judiciary Committee's consideration of S. 356, the
Electronic Communications Privacy Act Amendments Act of 2015.
The amendment, referred to as the ``ECTR Fix,'' would update
electronic privacy laws and would help the FBI effectively
investigate and thwart terrorist plots.
The ECTR amendment would correct an oversight in the law
that has impeded the FBI's ability to obtain these records in
national security cases on a timely basis. In
Counterterrorism and counterintelligence
[[Page S4388]]
investigations, telephone toll records and electronic
communications transactional records are key components. It's
important to distinguish that these electronic communications
are metadata, not content. Section 2709 of Title 18 permits
the FBI to collect this data with a national security letter
so long as the information is ``relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.'' The metadata from
these records are critical when the content of terrorist
communications are increasingly beyond the reach of lawful
process because of the widespread deployment of strong
encryption software.
As originally enacted, Section 2709(a) established a duty
for wire and electronic service providers to comply with an
FBI request for ``subscriber information and toll billing
records information, or electronic communications
transactional records,'' and subsection (b) provided the
means by which the FBI could make such requests. Section
2709(b), however, did not specify the information that the
FBI could request. Instead, it referenced ``any such
information and records'' as described in subsection (a).
Congress amended Section 2709(b) in 1993 to specify that
the ``subscriber information'' that a certification could
request consisted of ``name, address, length of service, and
toll billing records.'' No changes were made to the authority
to obtain electronic communications transactional records.
However, while Section 2709(a) still required production of
electronic communications transactional records, removal of
the phrase ``any such information and records'' left
subsection (b) without any specific reference to the
electronic communications transactional records referenced in
subsection (a). Nonetheless, Congress clearly intended
Section 2709 to continue to serve as a means of obtaining
electronic communications transactional records, as
subsection (a) continued to refer to a duty to produce such
records on request, and the title of the provision continued
to reference ``transactional records.''
For over fifteen years--including the eight years after 9/
11--the FBI continued to use Section 2709 to gather
electronic communications transactional records.
Significantly, this authority was never used to acquire these
records indiscriminately or in bulk. However, the recently-
passed USA FREEDOM Act specifically prohibits doing so. In
2009, however, some electronic communications service
providers began refusing to comply with these requests,
citing the scrivener's error referenced above. The number of
providers refusing to do so has increased over the years. In
certain cases, the FBI has sought the records using other
authorities, but those authorities take significantly more
time and resources than using Section 2709.
This section of the bill would amend Section 2709 to
reflect the original intent of Congress by clarifying the
types of ``telephone toll and transactional records'' that
the FBI used it to obtain for many years, while explicitly
prohibiting the collection of communications content.
In December 2015, FBI Director James Comey summed up the
critical importance of the ETCR amendment when he testified
before the Senate Judiciary Committee. He said, clarifying
this authority ``would be enormously helpful. There is
essentially a typo in the law that was passed a number of
years ago that requires us to get records, ordinary
transaction records that we can get in most contexts with a
non-court order, because it doesn't involve content of any
kind, to go to the FISA court to get a court order to get
these records. Nobody intended that. Nobody I've heard thinks
that that's necessary. It would save us a tremendous amount
of work hours if we could fix that, without any compromise to
anyone's civil liberties or civil rights.''
The ECTR amendment is necessary to protect America from
terrorist threats and transnational criminal organizations. I
strongly urge you to consider adopting the ETCR Fix as part
of S. 356 the Electronic Communications Privacy Act
Amendments Act.
Respectively,
Nathan R. Catura,
FLEOA National President.
____
National Fraternal
Order of Police,
Washington, DC, June 21, 2016.
Hon. Mitch McConnell,
Majority Leader,
U.S. Senate, Washington, DC.
Hon. Harry M. Reid,
Minority Leader,
U.S. Senate, Washington, DC.
Dear Senators McConnell and Reid, I am writing on behalf of
the members of the Fraternal Order of Police to advise you of
our support for S. Amdt. 4787 which will be offered to amend
H.R. 2578, the ``Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2016.''
The amendment will provide Federal law enforcement with the
tools they need to investigate and prevent terrorist attacks
by clarifying Section 2709 of Title 18 with respect to
Electronic Communication Transactional Records (ECTRs). Under
this statute, Federal law enforcement authorities have been
able to request and then collect metadata, not content, from
service providers as long as they have a national security
letter and the data request is ``relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.'' However, despite 15
years of regular cooperation, recent requests made to some
service providers have been rejected and these companies have
cited ambiguity in the existing statute.
The amendment would make clear Congressional intent that
such requests do not allow access to any content but that
name, email, Internet Protocol (IP) and physical addresses,
telephone me/instrument number, account number, login
history, length and type of service as well as the means by
which the service is paid for be made available to law
enforcement. This meta data can be crucial in
counterterrorism and counterintelligence investigations. The
FOP believes the amendment merely clarifies the existing
statute and does not give law enforcement any new authorities
or access to data previously unavailable to them. In fact,
the recent resistance to such requests was described to the
Committee on the Judiciary as ``essentially a typo'' and the
amendment better defines Congressional intent with respect to
``telephone toll and transactional records.''
I urge you and the Members of the United States Senate to
support S. Amdt. 4787 to ensure the timeliness and
effectiveness of our nation's counterterror and
counterintelligence operations. Our nation's security and
defense should not be held hostage or investigations
jeopardized because of a ``typo.''
Thank you as always for your consideration of the views of
the more than 330,000 members of the Fraternal Order of
Police. If I can provide any additional information on this
or any other issue, please do not hesitate to contact me or
Executive Director Jim Pasco in my Washington, D.C. office.
Sincerely,
Chuck Canterbury,
National President.
____
Federal Bureau of Investigation,
Agents Association,
Alexandria, VA, June 8, 2016.
Re: Electronic Communication Transactional Records.
Hon. Charles E. Grassley,
Chairman, Senate Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Senate Committee on the Judiciary, U.S.
Senate, Washington, DC.
Dear Chairman Grassley and Ranking Member Leahy: On behalf
of the FBI Agents Association (``FBIAA''), a voluntary
professional association currently representing over 13,000
active duty and retired FBI Special Agents, I write to
express our support for addressing issues related to
Electronic Communication Transactional Records (``ECTRs'')
during the Senate Judiciary Committee's consideration of S.
356, the Electronic Communications Privacy Act Amendments Act
of 2015. The relevant amendment, referred to as the ``ECTR
Fix,'' would be wholly consistent with the effort to update
electronic privacy laws, and would help the FBI more
effectively investigate and thwart terrorist plots.
Notwithstanding the well-funded efforts by technology
companies and activists to misrepresent the ECTR Fix, the
truth is that clarifying the language of Sec. 2709 would
strike a familiar and effective balance between privacy and
security. ECTRs provide information abut the IP addresses,
routing, and sessions times for electronic communications,
and electronic service providers have complied with FBI
requests for ECTRs pursuant to Sec. 2709 for years. This
cooperation furthered the protection of the public, as ECTRs
are used to identify patterns of communications in the course
of national security and terrorism investigations. At the
same time, access to ECTRs does not represent a threat to the
privacy identify patterns of communications in the course of
national security and terrorism investigations. At the same
time, access to ECTRs does not represent a threat to the
privacy of Americans because the FBI can only request ECTRs
for a limited scope of investigations, and because ECTRs do
not include detailed information about the specific web pages
visited by internet users or the content of web pages or
electronic communications.
Despite these facts, and as a part of their privacy-focused
marketing strategies, technology companies recently began
refusing to cooperate with the FBI on ECTR requests, and have
pointed to statutory ambiguity as a justification for their
actions. This choice has undermined national security and
counterterrorism investigations, and necessitates
Congressional action.
Given the importance of protecting the public from
terrorist threats, we support an amendment to include the
ECTR Fix in S. 356, as well as the efforts to address the
issue through other legislative vehicles. We hope that
Congress will make these reasonable and common-sense changes
in a timely manner.
If you have any questions, please contact me at
rtariche@fbiaa.org or 703-247-2173, or FBIAA General Counsel
Dee Martin, dee.martin@bracewelllaw.com, and Joshua Zive,
joshua.zive@bracewelllaw.com.
Sincerely,
Reynaldo Tariche,
President.
Mr. McCAIN. I will go on.
The Federal Bureau of Investigation Agents Association says that it
is a voluntary professional association currently representing over
13,000 active-duty and retired FBI special agents.
[[Page S4389]]
Here are 13,000 FBI agents, active and retired, who believe this
amendment is essential for them to be able to do their job and protect
America.
By the way--hello--we just had an attack in Orlando where 49
Americans were slaughtered, and we are arguing whether we should allow
the FBI to find out not the information in electronic communications,
but just find out about electronic communications. That is what this is
about.
I will quote from the 13,000 active-duty and retired FBI special
agents:
I write to express our support for addressing issues
related to Electronic Communication Transactional Records
(``ECTRs''). . . . The relevant amendment, referred to as the
``ECTR Fix,'' would be wholly consistent with the effort to
update electronic privacy laws, and would help the FBI more
effectively investigate and thwart terrorist plots.
After Orlando, do we want to help the FBI more effectively
investigate and thwart terrorist plots or do we want to restrict their
ability to do so? Is that what the Senator from Oregon wants? I don't
think so.
Notwithstanding the well-funded efforts by technology
companies and activists to misrepresent the ECTR Fix, the
truth is that clarifying the language [of subsection 2709]
would strike a familiar and effective balance between privacy
and security. ECTRs provide information about the IP
addresses, routing, and sessions times for electronic
communications, and electronic service providers have
complied with FBI requests . . . for years. . . . Given the
importance of protecting the public from terrorist threats,
we support an amendment to include the ECTR Fix . . . as well
as the efforts to address the issue through other legislative
vehicles. We hope that Congress will make these reasonable
and common-sense changes in a timely manner.
It is signed by Reynaldo Tariche, the president of the Federal Bureau
of Investigation Agents Association.
So we have a choice here. We have a choice here. We have those who
are so worried about privacy and those whose job and whose solemn duty
is to protect this Nation--Federal law enforcement officers, the FBI,
13,000 of the FBI agents, and then, of course, we have those who are
under assault on a daily basis--our police.
This is a letter from the Fraternal Order of Police ``writing on
behalf of the members of the Fraternal Order of Police to advise you of
our support'' for this amendment which will be offered. ``The amendment
will provide Federal law enforcement with the tools they need to
investigate and prevent terrorist attacks.'' It isn't any more
complicated than that.
My remarks probably will be a little longer.
The Fraternal Order of Police has it right. This will provide an
ability to prevent and counter further terrorist attacks.
How many attacks do we need? I would ask my colleagues who are
opposed to this simple amendment, how many attacks? Another San
Bernardino? Another Orlando? Two or three more attacks before we give
the Director of the FBI the tools he says he needs and wants to protect
this Nation? That is what this is all about.
The Fraternal Order of Police goes on to say that ``the amendment
would make clear Congressional intent that such requests do not allow
access to any content but that name, email, Internet Protocol (IP) and
physical addresses, telephone/instrument number, account number, login
history, length and type of service as well as the means by which the
service is paid for be made available to law enforcement.''
The Senator from Oregon, if I got his remarks right, says: Well,
there has been corruption of it. There has been abuse. There has been
misapplication.
One of our jobs is oversight, if that is happening. But I also would
say that is a damning indictment of these men and women who are putting
their lives on the line every single day and are begging for this tool
to defend this Nation.
The Fraternal Order of Police says:
I urge you and the Members of the United States Senate to
support [the amendment] to ensure the timeliness and
effectiveness of our nation's counterterror and
counterintelligence operations. Our nation's security and
defense should not be held hostage or investigations
jeopardized because of a ``typo.''
Thank you as always for your consideration of the views of
the more than 330,000 members of the Fraternal Order of
Police.
These are the views of more than 330,000 members of the Fraternal
Order of Police. I think maybe we ought to listen to the will of
330,000 men and women who are out there every day defending this
Nation. Maybe we ought to listen to them. Maybe they are the ones whose
lives are in danger. They are the ones who are the first targets of the
terrorists. Maybe we ought to listen to their views rather than some
misguided view that somehow this invades our privacy, to find out
simply whether an address has been used and for how long--not content.
If content is involved, that requires going to the FISA Court.
Last week the Director of the CIA appeared before a rare open session
of the Senate Intelligence Committee to deliver a stern warning to the
American people: ISIL has built a global apparatus with the intent to
plot and incite attacks against the West. He explained that despite our
2-year air campaign in Iraq and Syria and despite our efforts to build
and fight with local forces and despite the best work of our special
operators, ISIL and other terrorist groups continue to evolve and plan
to kill innocent Americans who reject their hateful ideology.
That is the warning of the Director of the CIA. The CIA's warning
obviously comes after the attack. It is remarkable. The CIA's notice
about ISIL's continued strength followed years of warnings by the
Director of the FBI and others in law enforcement who have explained to
policymakers time and time again that the use of advanced technologies
by our enemies is making it increasingly difficult for law enforcement
to uncover and stop attacks. That is their view.
We give these people the responsibility to defend this Nation,
particularly against these attacks, and they are telling us they can't
adequately defend against these attacks because of a provision we have
that they can't even look at the fact that a site was used.
By the way, if the Senator from Oregon and others believe this is an
invasion of privacy, then why don't they propose an amendment that
telephone and financial records should also be in that same category?
Of course, that has the problem of being consistent.
The law allows the FBI to request telephone billing information,
financial transaction records, but terrorists don't radicalize by phone
and they don't listen to ISIL propaganda through financial
transactions. They radicalize through the Internet. I repeat: They
radicalize through the Internet. So if they are radicalizing through
the Internet, shouldn't we gain as much possible information as we can
by monitoring their use of the Internet?
Reports indicate that in 2013 the Orlando terrorist was removed from
a terrorist watch list because there was insufficient information
showing he was radicalized and therefore a threat. Perhaps--and I
emphasize ``perhaps''--if the FBI had more effective authorities that
would allow them to more easily determine Internet activity of those
suspected of radicalization, he would have remained, perhaps, on the
watch list. Currently, the FBI can only receive electronic
transactional records information by going through the FISA Court
process, which is a time-intensive court process that often takes over
a month. With the thousands of potentially radicalized individuals
already in the United States, we need to make it easier, not harder,
for the FBI to receive the critical evidence they need so they can
focus their investigations.
Let me state again clearly for the benefit of my colleagues what this
provision does not do. It does not allow the FBI to see the content of
emails or conversations in Internet chat rooms. As I said before, this
provision is narrowly drawn and carefully limited.
The administration, Congress, and national security experts from both
sides of the aisle have spoken repeatedly about taking on ISIL's
Internet radicalism. This provision, according to the Director of the
FBI, is a most important tool to give the FBI valuable data points to
do just that.
We face a threat from individuals who have been radicalized by the
words, actions, and ideology of terrorist groups. These individuals may
act alone, without clear direction from terrorist groups, but they
fulfill the intent and desire of these groups.
We must ensure that our law enforcement authorities keep pace with
the tactics and methods of our adversaries. If our adversaries seek to
attack us by inciting lone-wolf violence, we have to
[[Page S4390]]
make sure law enforcement has the authorities they need to investigate
and, we hope, stop those attacks.
Our intelligence and law enforcement officers are the best in the
world, but as terrorist networks grow and metastasize around the world,
we ask them to bear an increasingly difficult--some even say
impossible--burden. We ask them to uncover threats by individuals who
are hidden among millions of law-abiding citizens. We ask them to
determine which of us has been inspired by evil to do harm to our
fellow citizens, and we ask that they do this difficult task with
little or no impact on anyone's privacy. We have to recognize this
threat for what it is.
As our enemy evolves, so, too, we must evolve and strengthen our
counterterrorism tools and authorities. Let's stop tying the hands of
those who wish only to keep us safe and on many occasions are ready to
make themselves unsafe in order to protect our fellow citizens.
I guess my colleagues are presented with a choice. As the Senator
from Oregon, with great skill and oratorical tools, will talk about
rights of privacy, will talk about constitutional protections, all of
those things--this is simple. This is a simple amendment. It has
nothing to do with going into these sites and finding out information.
That requires going to court.
All it does is tell the FBI, whose Director has pled for this
capability--does anyone assume the Director of the FBI wants to act in
an unconstitutional fashion? Of course not. But you must accept the
fact that it is his responsibility to protect the Nation and,
therefore, when he asks for the tools to protect this Nation, then
maybe we ought to pay attention and give them to him. I know of no one
who is an objective observer who believes it would be unconstitutional
to adopt this amendment.
I don't know about abuses in the past that the Senator from Oregon
says have taken place. I know abuses have taken place in the past on
almost any aspect of American life. But I also know that when you have
all of our police--330,000 of them, representing them--13,000 in the
Federal Bureau of Investigation, Federal law enforcement agencies from
all over America--the list is incredibly long--all asking for the
ability to defend this Nation, by God, I think we should give it to
them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, the senior Senator from Arizona--whom, as I
mentioned, I have worked with often--has said, in effect, if you oppose
his amendment, you are interested in privacy.
The reality is, my interest is in privacy and security. I believe it
is possible to have both, and I want to explain how that is the case.
Something I worked on for a long time, the USA FREEDOM Act, we
included section 102. Section 102 very explicitly said that if the
government--if the FBI, in a situation like Orlando or San Bernardino,
for example--if the government believed it needed information
immediately--immediately--the government could get the information and
then go back to the court after the fact. In effect, after the
government had been able to get the information of its own volition,
settle up immediately so as to protect the American people.
This debate is about are we going to have policies that advance both
our security and our liberty. I have felt very strongly--I see my
seatmate, the distinguished ranking member of the Appropriations
Committee. We sit next to each other on the Intelligence Committee. We
talk about these issues very often. As part of the USA FREEDOM Act, I
pushed very hard to make sure the government had those emergency
authorities.
This is a dangerous time. Nobody disputes that. If you have been on
the Intelligence Committee, as Senator Mikulski and I have been for so
many years, that is not in question. This is a dangerous time.
No. 1, the question is, Are we going to have both security and
liberty? In my view, that is where the amendment from the senior
Senator from Arizona comes up short.
No. 2, the Senator from Arizona has said the problem he seeks to
correct was just a typo, kind of a clerical error--not even close.
The debate back in 1993--we have the record, the House, the Senate,
the FBI. It was very carefully crafted in a way to ensure that there
would not be abuse in the digital area. When you look at that
specifically, that is very clear. This was not a typo. This was
carefully crafted--House, Senate, FBI--in 1993.
When my friend from Arizona says it was a typo--not even close. I
hope colleagues will avail themselves of our offer to look at the
record.
Right now, nobody from the government, the FBI, has said, if it had
the power the Senator from Arizona seeks to give the government--nobody
in the intelligence field or in the government said it would have
prevented Orlando.
The fact is, the government has the authority, the emergency
authority, and it was something I pushed very hard for. It was right at
the core of my belief that we ought to be pushing for both security and
liberty at a dangerous time and that the two are not mutually
exclusive. So we added to the USA FREEDOM Act that emergency authority
for the government.
It is also true, the administration of George W. Bush specifically
rejected the idea the Senator from Arizona is calling for. They
specifically said this has created problems. There have been four
separate inspector general analyses that support that.
As we continue this discussion, I hope colleagues will see that we
ought to keep the focus on both security and liberty. That is why the
emergency authorities we got in the USA FREEDOM Act are so important.
They are intact. They can be used for any situation--Orlando, San
Bernardino, any other--that the government, the FBI, feels the security
and safety of the American people are at stake.
With respect to the lone-wolf provision, which I heard my colleague
mention, we reauthorized that for 4 years in the USA FREEDOM Act. I
supported that as well.
I just hope colleagues will think through the implications of the
amendment from the Senator from Arizona because under what he is
talking about, a national security letter, what is called an NSL, can
be issued by any FBI field office to demand records from a company
without going to a judge. To support this, in effect, you basically are
saying you don't support oversight, you don't support court oversight,
because we have given the court and the government the ability to move
quickly.
I hope tomorrow we don't conclude that the FBI ought to be able to
demand email records, text message logs, Web-browsing history, and
certain types of information without court oversight.
The Senator from Arizona said: Well, you are not going to get all the
content of those emails.
That is true, but the fact is, in a lot of instances, when you know
who emailed whom, you know a whole lot about that person. If somebody
emailed the psychiatrist four times in 48 hours, you know a whole lot
about the person. You don't have to see all of the content of the
emails.
Colleagues, we will discuss this some more, but I hope Senators will
see this is about ensuring there is both security and liberty. The
government has not said or intimated that if they had the power the
Senator from Arizona seeks to put back--that the Bush administration
rejected--the government has not said or intimated this would have
prevented the horrific tragedy in Orlando.
I hope my colleagues will oppose the McCain amendment tomorrow.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Mr. President, we have heard a spirited debate between
two distinguished Senators, two distinguished Americans, who are very
passionate about defending America, and I know there will be more
debate on this.
The Senator from Arizona and those who cosponsor his amendment want
to add more authority to the FBI.
I rise to say that in the next day, when there is an opportunity to
offer another amendment, I will be offering another amendment to give
the FBI more money to do the job with the authority it does have.
Working on a bipartisan basis, the distinguished Senator from Alabama
and I tried to produce a very good bill to fund the Justice Department,
one of which is the FBI.
[[Page S4391]]
We did do a good job, there is no doubt about it, but we operated
within the budget caps. Within that, we did the best we could, but
there is no doubt that the FBI could use more resources to be able to
enhance its counterterrorism efforts and also increase its surveillance
by tracking the terrorist threats.
So when the opportunity arises, I will be offering an amendment that
gives more money to the FBI, that also gives more money--working with
the Senator from Wisconsin, Ms. Baldwin--to deal with hate crimes, one
of the other significant issues here. Also, while we are talking about,
again, the more authority issue, this amendment would include a section
by Senator Leahy, the vice chair of the Judiciary Committee, that would
have tough penalties for those who knowingly transfer or receive a
firearm or know or have reasonable cause to believe it will be used to
commit a crime of terrorism, violence, or drug trafficking. It will
reduce the threat.
We can debate all we want about more authority for the FBI. I think
it is a good debate, the tension between security and civil liberties.
The distinguished Presiding Officer is also a member--an active,
diligent member--of the Intelligence Committee.
These are not easy issues, but my amendment should be an easy issue.
My amendment would add $175 million dedicated to the FBI's
counterterrorism efforts that would raise funding for the FBI above
what the House suggested. It would strengthen the FBI's
counterterrorism workforce. The FBI would be able to restore--remember,
not add--restore more than 350 positions, including 225 special agents
for critical FBI investigations related to counterterrorism and
counterintelligence. It would also give the FBI new tools to be able to
go where these bad guys have access to new technology and new ways of
avoiding detection.
The number of terrorism threats disrupted by the FBI grew from 214 in
fiscal year 2014 to 440 in fiscal year 2015. In one fiscal year, it
actually doubled. As the threat goes, the FBI needs increased resources
to hire and sustain the agents and intelligence analysts who interrupt
these plots.
Again, while we are talking more authority--and that debate will go
on--I am saying, if you are going to give them more authority, and
whether you are giving them more authority, the FBI is stretched thin.
We did the best we could under the budget caps, but my amendment
would be emergency funding. We don't look for offsets in order to take
from one important Department of Justice function to give to the FBI or
take from other Federal law enforcement to give to the FBI, or take
from local law enforcement to give to the FBI. And it would be a
tremendous boost.
It would also boost the FBI's surveillance capabilities and add
critical personnel, including special agents. Additional funds would be
provided for 36 new positions, 18 fully dedicated to tracking terrorist
threats, and it would certainly help to gather evidence on high, high
priority targets.
Again, while we are working at more authority, please, regardless of
where you are on the lone-wolf debate, the Mikulski amendment offers
the opportunity to add more funding.
Mr. WYDEN. Will my colleague yield for a question?
Ms. MIKULSKI. Certainly, to the Senator from Oregon.
Mr. WYDEN. I appreciate my colleague yielding, and I am a very, very
strong supporter of her amendment because I think the idea of adding
more resources is absolutely essential.
As I look at these cases--and she and I have talked about this on the
Select Committee on Intelligence--we know that the workforce is aging
in the intelligence community. We are going to need more dollars for
the personnel we are going to need and certainly a lot of resources in
a variety of areas. Is that my colleague's intention, to make sure we
get the resources to, in effect, get out in front of these upcoming
threats?
Ms. MIKULSKI. The Senator has identified my rationale and its actual
underpinnings in a most accurate and precise way.
You see, I am from the school of thought--along with, I know, the
ranking member of the Committee on Armed Services, also a member of the
Committee on Appropriations--that the defense of the Nation and the
protection of its people doesn't rely only on the Department of
Defense. There are also other muscular ways of protecting it, some of
which are, first of all, response and surveillance and so on in
existing, constitutionally allowed authorities and giving more money to
the FBI to operate under the law as we have currently defined it.
But you know what, we need to do prevention. Prevention really comes
from the kind of intervention that would occur with the State
Department--again, a tool of diplomacy. And what they have is a whole
effort underway to deal with the recruitment and radicalization of
Islamic jihadist terrorists on the Internet. Well, we have to support
that. When they were going for more money for defense, we made that
argument. But I am not going to relitigate old arguments.
We have before us Orlando. We have before us those who want to
curtail the terrorist threat. I want to curtail that terrorist threat.
And some of the ways I want to do it are, No. 1, add more money for the
FBI; No. 2, join with our colleague from Wisconsin, Senator Tammy
Baldwin, in adding more money to deal with hate crimes--hate crimes--
because often those are the aegis and the incubator and so on of future
violence; and the other is to close the loophole to keep guns out of
the hands of terrorists, violent criminals, and traffickers that our
distinguished ranking member of the Judiciary Committee mentioned.
Mr. WYDEN. If my colleague will continue to yield, just briefly, what
my colleague has stated--and I strongly agree with--is that she is
trying to assure that the resources are there for the future.
I am not going to drag my colleague into the earlier discussion, but
what I am concerned about, and have been, is that the Senator from
Arizona is relitigating the past. In effect, when the Bush
administration took away the power because it was too intrusive, he
wanted to go back to it.
But apropos of my colleague, isn't that the heart of her case--that
she is looking to the future--FBI resources, resources to deal with
hate crimes, resources to deal with prevention? It seems to me she is
trying to lay out a plan for the future.
Ms. MIKULSKI. The Senator from Oregon is absolutely correct. This
would be funding that would begin October 1. Given no cute tricks
around shutdown and slam-down politics as we go into the fall--that we
could actually move our appropriations--this would provide money
starting October 1 with these additional resources to help the FBI be
more effective than what it is, and also to help our Justice Department
be even more effective than what it is in fighting hate crimes.
I will be discussing my amendment in even more detail, but I know
there are other colleagues on the floor, and I now yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Unanimous Consent Request--S. 2328
Mr. MENENDEZ. Mr. President, I have come to the floor once again, as
I have time and again, with a simple message. For Puerto Rico, time is
of the essence. For the 3\1/2\ million United States citizens who live
there, time is of the essence, but getting it right is also of the
essence.
There are only 8 business days left until Puerto Rico defaults on
approximately $2 billion in debt. Congress needs to act immediately to
prevent this fiscal crisis from becoming a full-blown humanitarian
catastrophe. And while the House has attempted to address this issue by
passing a legislative proposal called PROMESA--``promesa'' in Spanish
means ``promise''--it lacks the promise that really would help 3\1/2\
million U.S. citizens in Puerto Rico.
There are Members on both sides of the aisle who believe the bill is
fundamentally flawed. So instead of simply rubberstamping an inferior
solution, the Senate needs to follow the Founding Fathers' intent and
thoroughly debate this critical issue, which will have such a profound
impact on so many Americans. I would note that calls for a thorough
debate on the Senate floor are bipartisan in nature, and I thank my
colleague Senator Wicker for joining me in a letter to the leadership
asking for a full and open process to consider this bill.
I would remind my colleagues that each one of us was elected to this
very
[[Page S4392]]
Chamber to debate and enact legislation to improve the lives of
Americans. But I fear that, instead of a robust debate and thoughtful
consideration of amendments to improve this bill, those who wish to see
the House bill signed into law as drafted are going to delay and delay
and delay until the last possible minute. Just as they did today, they
are going to prevent us from debating this until next week, and then
they will tell us it is too late to make any improvements to this bill.
As a matter of fact, every article I have read suggests that is exactly
the tactic which is being pursued.
I come to the floor because it is not a new or novel tactic to quell
dissent with the threat of a deadline, but just because it has been
done before doesn't make it right. How can we as Senators shirk our
responsibility when the people of Puerto Rico are at the edge of an
abyss? They need our help, and they need it today. The bill will affect
a generation of Puerto Ricans, and we owe it to them and their brothers
and sisters who live in our States--half a million in my State of New
Jersey, 5 million throughout the country--to get this right.
Let me once again remind every one of my colleagues how deeply flawed
this legislation is. First, the fate of 3\1/2\ million American
citizens will be determined by 7 unelected, unaccountable members of a
so-called oversight board that will act as a virtual oligarchy and
impose their unchecked will on the 3\1/2\ million U.S. citizens on the
island of Puerto Rico.
As the nonpartisan Congressional Budget Office states:
The board would have broad sovereign powers--
Sovereign words have meaning--
to effectively overrule decisions by Puerto Rico's
legislature, governor and other public authorities. . . .
[It] can effectively nullify any new laws or policies--
Any new law or policy--
adopted by Puerto Rico that did not conform to requirements
specified in this bill.
So the elected representatives of the 3\1/2\ million U.S. citizens on
the island of Puerto Rico just don't get listened to. They can have
their decisions overruled by a nonelected board, for which there is no
guarantee there will be any representation by those who are elected to
recommend to this board anyone to be placed on it.
Even the bill's own author noted in the Interior Committee's report:
The Oversight Board may impose mandatory cuts on Puerto
Rico's government and instrumentalities--
Mandatory cuts--
a power far beyond that exercised by the Control Board
established for the District of Columbia.
If the board, in its sole discretion--and those words have enormous
meaning. If my colleagues take the time to read the bill, as I have
twice, fully, from the beginning to the end, 29 times the bill says
that the board, in its sole discretion--not the Congress's discretion,
not the bankruptcy court, not the Legislature of Puerto Rico, not the
Governor of Puerto Rico--no, the board, in its own sole discretion--29
times. If the board uses the superpower this bill allows it to have to
close more schools, shutter more hospitals, cut senior citizens'
pensions to the bone; if it decides to hold a fire sale and put Puerto
Rico's natural wonders on the auction block to the highest bidder; if
it puts balanced budgets ahead of the health, safety, and well-being of
children and families--similar to how the control board travesty
unfolded in Flint, MI--without their voices represented on the control
board, there is nothing--nothing--the people of Puerto Rico will be
able to do.
Think about this. How many in this legislative body would allow such
a board to take control over their State, no matter what their economic
woes? The people on the island deserve a transparent oversight board
where their voices and concerns are heard, not muted, and where the
deals made with creditors are in the best interests of the people, not
just hedge funds. The fact that the Puerto Rican people will have
absolutely no say over who is appointed or what action they decide to
take is blatant--blatant--neocolonialism.
Second, I have said this before and I will say it again: Any solution
needs a clear path to restructuring. That is the only reason to do this
legislation anyhow--to give Puerto Rico a clear path to restructuring
in the bankruptcy court under the edicts of the bankruptcy law. The
unelected control board created in this bill will have the authority to
decide whether Puerto Rico's debts are worthy of restructuring.
Let's not fool ourselves into believing it is a sure thing that this
bill guarantees the island the ability to restructure its debts in the
first place. Instead, it would take a supermajority of this 7-member
board--a 5-to-2 vote--in order for any of the island's debts to be
restructured. What does that mean? It means that three people--a
minority of the board--could derail the island's attempts to achieve
sustainable debt payments. Without any authority to restructure its
debt, all this legislation will do is take away the democratic rights
of 3\1/2\ million Americans and leave the future to wishful thinking
and a prayer the crisis will somehow be resolved.
I am afraid we are opening the floodgates for Puerto Rico to become a
laboratory for rightwing economic policies. Puerto Rico deserves much
more than to be the unwilling host of untested experiments in
austerity.
I am not advocating to completely remove all oversight power. To the
contrary, I support helping Puerto Rico make informed, prudent
decisions and put it on the path to economic growth and solvency. But
despite its name, the oversight Board envisioned by this bill doesn't
simply oversee. It directs, and it commands. It doesn't assist; it
controls. The Senate has an opportunity to change that situation. We
have a chance to improve this bill and strike the right balance.
Now, I would like to have the opportunity--and I welcome others as
well--to offer a number of targeted, commonsense amendments to restore
a proper balance and ensure the people of Puerto Rico have a say in
their future. By the way, since they are going to have to live with the
tough consequences that are coming, no matter what, it is always better
when stakeholders are engaged in the process and have a say about their
future. This tempers the powers of the control board and gives the
people of Puerto Rico more of a say in who is on the board. I encourage
my colleagues to do the same--to offer amendments they feel will
improve the bill. I know, as all of us know, that success is never
guaranteed, but at the very least, the people of Puerto Rico deserve a
thorough and thoughtful debate on the Senate floor.
I do not take lightly, nor should my colleagues, a decision to
infringe upon the democratic rights of the people of Puerto Rico. The
3.5 million American citizens living in Puerto Rico, and 5 million
family members living in our States and in our districts--in New
Jersey, New York, Florida, Pennsylvania, Ohio, and Connecticut, just to
name a few--deserve more than the Senate's holding its nose to approve
an inferior solution.
So I hope the majority leader stands true to his word when he said we
``need to open up the legislative process in a way that allows more
amendments from both sides''--well, both sides are calling for
amendments to this bill--and allows us to call this bill up for debate
so we can do what we were elected to do--fix problems and make the
lives of the American people better--and do what the Senate, as an
institution, should do, particularly as viewed by the Founding Fathers;
that is, to take the passions of the moment, to think about it, morally
and logically, and at the end of the day hopefully to refine and make
proposals much better.
There is no reason that this has to wait until next week, on the
verge of the Fourth of July recess. But I will say this. I want to give
my colleagues notice now that I am not ready to rush to celebrate
independence and create a situation of colonialism for 3.5 million of
my fellow citizens. I hope we will get an early opportunity to debate
this bill, offer amendments, and we will see how it falls then.
Mr. President, in view of that desire, I ask unanimous consent to lay
before the Senate the House message on S. 2328; that the motion to
concur with an amendment be considered made and agreed to with no
intervening action or debate.
The PRESIDING OFFICER. Is there objection?
The majority whip.
[[Page S4393]]
Mr. CORNYN. Mr. President, reserving the right to object, I would say
to our friend from New Jersey that it is the plan, publicly announced
by the majority leader, to bring this legislation that was passed by
the House to the floor of the Senate next week. Obviously, we are
working on the CJS appropriations bill, and our deliberation on that
has been delayed by a number of the other amendments and other matters
that have been voted on this week. But it has always been the intention
of the majority leader to allow Senators to offer amendments, unlike,
frankly, when Democrats controlled this Chamber. But I do think it is
going to require some cooperation and maybe even some consent
agreements to agree to amendments that can be resolved in time to meet
the July 1 deadline. To me, one of the best arguments in favor of this
legislation is that we want to avoid a taxpayer bailout. We want to
avoid a taxpayer bailout. This legislation from the House does that. I
understand the Senator may have some objections to it and some better
ideas in his mind, but we are going to have that opportunity next week.
If we want to see what the effect of leftwing fiscal policy is, what
we see is the bankruptcy occurring in Puerto Rico now. I think they
need to try something else, some fiscal responsibility and restraint.
Frankly, I worry for the rest of the country that if we don't do
something to get our own fiscal house in order here in the United
States Senate, the rest of the country is going to find itself in dire
straits at some point in the not too distant future.
So I would say that we are going to have a chance to have that debate
and those votes next week. This is not the time to do it because we
have other important work that is pending before the Senate. Nor are
the rest of us 99 Senators going to agree to a unanimous consent
request to legislation we haven't even read or had time to consider.
So under those circumstances, I would be compelled to object.
The PRESIDING OFFICER. Objection is heard.
The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, I am disappointed but not surprised. I
do hope that the remarks of the Senator from Texas that there will be
time and opportunity for amendments are real, because every published
report I have seen suggests this will be brought up next Thursday on
the verge of everybody trying to go on recess. My advocacy or my
unanimous consent request wasn't to bring a bill to the floor that
isn't already known. That bill has been out there for some time. It is
to create the process to debate and begin to amend the bill--the bill
passed by the House of Representatives that has been out there for some
time now. So I wasn't offering a bill of my own vision. It was to
create the process.
Of course, I respect the importance of the present appropriations
bill that we are discussing, but the urgency of the time limit as it
relates to the default that can take place in July is not as pressing
on that appropriations bill as it is for the people of Puerto Rico. So
I think there can be a reasonable opportunity to move to PROMESA--a
false promise, from my view--and a real opportunity to have a debate on
it, and more than debate, amendments--amendments to make it better.
So I hope that is going to happen. But I want to signal now that if
we are jammed on Thursday and it is an up-or-down vote--take it or
leave it--that I have every intention of doing whatever I can
procedurally to make sure we have amendments on this.
As it relates to the question of bankruptcy and bailout, we are not
bailing anybody out here. That is why we want Puerto Rico to have
access to restructuring. Restructuring is a provision under the
bankruptcy code that you take your debts--whether you are an
individual, a company, or, in this case, a government--and you go
before the bankruptcy court and you say: Here are all of our debts, and
here is our income. We want to be able to restructure this in such a
way that we can be solvent and at the same time be responsible to those
debtors. And they will live with the dictates of the bankruptcy court.
But this bill doesn't even guarantee that the bailout my colleague is
concerned about doesn't happen, because it guarantees no absolute road
to restructuring.
As it relates to leftwing policies, I would just note--as someone who
has been an advocate and a voice for the people of Puerto Rico for the
24 years I have been in the Congress, since they have no elected
representatives here who have a vote, at the end of the day--that there
have been leaders of that government in Puerto Rico, many who have been
Republican in nature and others who have been Democrat in nature. The
policies that have taken place and that have accrued to this moment are
a combination of some bad fiscal policies by leaders on both sides of
the aisle but also by policies that treat the 3.5 million U.S. citizens
in Puerto Rico inferior to any one of them if they took a flight to any
State in the Nation, for which they would have full rights,
obligations, and benefits.
So we have been part of creating the process here, and we have been
part when we took away section 936, which was an inducement to the
private sector to help build jobs and economic opportunities. We just
took it away. They had provisions to elements of the bankruptcy code.
Somehow, in the middle of the night, that was taken away from them. So
we have treated them like a colony, and now we are worried.
As it relates to leftwing policies, let me just say that, if raising
incomes of people, if saying to people there should be a minimum wage
that can sustain your family and help you realize your hopes and dreams
and aspirations, if you are working overtime and you ultimately should
have some protections that you should be paid overtime--if those are
leftwing fiscal policies, then I think most Americans believe that they
should get a living minimum wage to be able to sustain their families,
help their children be educated, take care of their health care, and
think about their retirement.
So I don't think this is about that at all. If we are going to lose a
fight for the people of Puerto Rico, it is going to be because we are
going to have a fight at least to have amendments and to consider what
that future should be. But we are not going to take it that it is an
up-or-down vote on a House-passed bill that has no voice of the Senate,
no imprint of the Senate. That is not what I got elected to the Senate
for.
With that, I yield the floor.
The PRESIDING OFFICER. The majority whip.
Amendment No. 4787
Mr. CORNYN. Mr. President, tomorrow we will have a chance to begin to
talk about the real cause of what happened that horrible night in
Orlando at the Pulse nightclub--that is a homegrown terrorist attack
inspired by the poisonous ideology of ISIS, the Islamic State. We will
have a chance to revisit the total lack of any coherent plan coming out
of the White House to deal with the threat of the Islamic State over in
the Middle East and the consequences of failing to deal with that here
at home.
The poisonous fruit of that failure and previous ones is already
self-evident: the massacre of American soldiers at Fort Hood, TX, in
2009 that took the lives of 13 people and an unborn child; a deadly
attack on 2 military facilities in Chattanooga, TN, in 2015 that took
the lives of 5 U.S. servicemembers; an attempted attack in Garland, TX,
about a year ago that--but for a vigilant police officer was thwarted--
could have been disastrous; and then, of course, the shooting in San
Bernardino where 14 people were killed. Add to that poisonous fruit of
the failure to have a coherent policy to deal with the Islamic State
and its poison, the 2013 Boston Marathon bombing, where 3 persons were
killed and many more wounded--not by a gun but by pressure cooker bombs
made by the terrorists. Most recently, the worst terrorist attack in
our country since 9/11 was in Orlando, where a jihadist pledged his
allegiance to ISIS and then viciously gunned down 49 people in that
Orlando nightclub.
It is telling that the Attorney General sought to withhold from the
American people the 911 calls of the Orlando shooter to excise out--to
rewrite history--and to diminish the terrorist influences that
motivated him in the first place. It is further evidence that the Obama
administration fails to see what is plainly right in front of its face
when it comes to the threat, and it continues to refuse to deal with it
in a
[[Page S4394]]
way that would crush ISIS and discourage people from becoming
radicalized because they feel like ISIS is winning. If ISIS were
crushed and destroyed, which should be our goal, I don't believe we
would have radicalized Americans here pledging allegiance to the leader
of a crushed or destroyed Islamic State.
So jihadi terrorism on American soil is not just some one-off, freak
occurrence. It is now an undeniable pattern. How many ISIS-inspired
attacks do we need in this country before we start talking about and
taking the threat seriously and begin targeting the evil ideology ISIS
is selling?
Typically, in an investigation, law enforcement has to work hours on
end to answer the question of who did it. But that is not the case with
these examples of Islamic extremism. We know who the enemy is. But the
Obama administration has failed to call it for what it is, and the
President has failed to offer any strategy to root out and exterminate
it. Promises to ``defeat and degrade'' appear just about as hollow as
the President's threat of retaliatory action if redlines were crossed
with the use of chemical weapons in Syria. When that happened, there
were no consequences.
So the result is that ISIS isn't contained, and it is surely not
retreating. Don't take my word for it. The Director of the Central
Intelligence Agency just last week suggested that ISIS would continue
to ``intensify its global terror campaign.'' They are not giving up,
and they are not going away. They are doubling down. Like the terrorist
in Orlando, ISIS is actively using every tool at its disposal to
recruit, train, and radicalize individuals here in America and in other
parts of the world.
This terrorist army figured out a long time ago that it could
accomplish its objectives of inflicting death and destruction on
innocent Americans without even having to send its operatives from the
Middle East into the United States. All it had to do was to export, not
its soldiers, but its ideology and poisonous ideas to the United States
via the Internet with the propaganda that it uses to, again, poison
susceptible minds, those who are sympathetic to the cause and willing
to swear allegiance to it and carry out the horrific acts like we saw
in Orlando.
Over the weekend, the House Homeland Security Committee chairman
noted that ISIS and its supporters are posting an estimated 200,000
tweets a day--200,000 separate messages a day on Twitter. How long will
it take before the administration recognizes that this propaganda poses
a growing national security problem? Once they acknowledge it, how much
longer will it take them before they do something about it?
In fact, we heard from FBI Director Comey that there are open
investigations on individuals suspected of being radicalized in all 50
States. I don't see the administration doing anything at all to
effectively counter this terrorist propaganda popping up all over the
Internet, turning some susceptible Americans into cold-blooded jihadist
killers. We can fight back by equipping our law enforcement personnel
with the tools they need to keep us safe. The fact is, you can't
connect the dots unless you can collect the dots, and that means robust
intelligence consistent with our Constitution, including the Fourth
Amendment.
Too often law enforcement officials have to operate with one hand
over their eye or one hand behind their back, however you want to
characterize it, because they can't access key information in a timely
manner, and because of that they are not able to discern the pendency
of an attack or the motivations of somebody who is planning an attack.
If they could collect the information, maybe--just maybe--they could
then go to the FISA Court and get a search warrant. Maybe--just maybe--
they could get a wiretap upon the showing of probable cause in court.
Those, of course, are consistent with the Fourth Amendment protections
against unreasonable searches and seizures, and the burden should be on
law enforcement to produce probable cause evidence in order to justify
collection of the content of those communications.
We saw the consequences of our flying blind in Garland, TX, just last
year. On the morning of the attempted terrorist attack, the two men who
came from Phoenix dressed in body armor with semiautomatic weapons sent
more than 100 messages overseas to suspected terrorists, and vice
versa, but, unfortunately, FBI Director Comey--at least the last time
he testified before the Senate Judiciary Committee--said the FBI still
doesn't have access to that information because of encryption. This
means our law enforcement authorities could be missing critical
information that could uncover future terrorist attacks or identify the
network of terrorists here so we can stop them before they kill again.
The Garland case isn't unique. The FBI is regularly slowed down by
outdated policies that make their job of protecting the homeland much
more difficult--more difficult than it needs to be. We saw that in San
Bernardino too. We have to address this gaping hole in our legal
authorities and do all we can to give the FBI and our other law
enforcement officials the tools they need, and a good place to start
would be tomorrow morning by allowing the FBI to use national security
letters to obtain key information about what suspected terrorists are
doing on the Internet and whom they are communicating with online in
counterterrorism investigations. This is not for content, as the
Presiding Officer knows. This is information about Internet and email
addresses, much as national security letters are currently authorized
to collect telephone numbers and financial information. In fact, the
FBI Director said the omission of this authority years ago, he
believes, was an oversight, but it now provides a gaping vulnerability
and has blinded the FBI to information that could well allow them to
have detected the intentions earlier of jihadists like the one in
Orlando.
I don't know for a fact, but I just wonder if the FBI, back when they
were vetting the Orlando shooter on two separate occasions because
things he said and did put him on the watch list, if they would have
been notified immediately when he purchased his firearms. Well, as we
now know, the FBI investigations were inconclusive and he was taken off
the watch list. I wonder if the FBI had access to a national security
letter that would allow them to gain information about the IP addresses
he had been visiting from his Internet service provider, along with
email addresses--again, not content because you can't do that without a
warrant issued by the FISA Court and a showing of probable cause--and
what he might have been viewing, such as YouTube videos of Anwar al-
Awlaki, who was responsible for radicalizing MAJ Nidal Hasan at Fort
Hood and others, and the information was sufficient enough that the
President of the United States authorized the use of a drone in order
to kill him on the battlefield so he could not kill other innocent
Americans--well, you get my point. We need to make sure the FBI has
access to all the information they can legally get their hands on, and
a good place to start is voting on the McCain-Burr amendment tomorrow
so the FBI can obtain information about what they are doing on the
Internet and who they are communicating with, and if it is justified,
to be able to then go to court and demonstrate probable cause
sufficient to actually then look at content in order to prevent
terrorist attacks.
I want to be clear about one thing. The FBI already has the power to
review financial records like Western Union transfers and the FBI
already has the power to review telephone records. They can access
telephone numbers, not the content of the conversation, again, unless
there is further authority issued by a court of law, but because of an
inadvertent omission in the law, the FBI can't readily access the exact
kind of information ISIS is using to recruit and radicalize violent
extremists lurking in our midst.
We have seen how difficult it is to identify these people before they
kill. Why in the world wouldn't we want to make sure we provide all the
information under our constitutional laws that could be available to
law enforcement to identify these people before they kill?
I introduced a similar proposal to the McCain-Burr amendment a few
weeks ago in the Judiciary Committee that would address this and
provide access
[[Page S4395]]
to this counterterrorism information. I am glad our colleagues, the
senior Senators from Arizona and North Carolina, have now offered this
amendment to the underlying legislation.
As the Presiding Officer knows, this provision, or one very similar
to it, was contained in the Intelligence reauthorization bill that had
the bipartisan support of everybody on the Intelligence Committee, save
one.
This is long overdue. It is bipartisan, and I think our failure to
act to grant this authority, particularly in the wake of this terrible
tragedy in Orlando, would be inexcusable. This is something the FBI
Director, appointed by President Obama, has said he needs. He said this
is their No. 1 legislative priority. President Obama's administration--
beyond just the FBI Director--supports it. What is stopping us from
providing this authority?
The truth is, these threats are at our doorstep. ISIS is using every
tool it has to spread fear and chaos, and we owe it to those on the
frontlines of our counterterrorism efforts to get them what they need
in order to more effectively counter these terrorists' efforts. It is
our duty to do something about it. Unlike some of the provisions we
voted on last night that would do nothing to stop people like the
Orlando shooter, this could actually stop them.
I am all ears if there are other ideas when it comes to advancing
commonsense proposals to fight terrorism at home and make our
communities safer, but this is a good place to start. I hope going
forward we can do a better job of providing the FBI and law enforcement
officials the resources they need to keep us safe. This is within our
grasp, and all we need to do is to take advantage of this opportunity
and have a strong bipartisan vote to adopt the McCain-Burr amendment
tomorrow morning.
I yield the floor.
Mr. LEAHY. Mr. President, after voting down sensible gun measures
earlier this week, Republicans want to change the subject. They want to
resort to scare tactics to divert the attention of the American people.
Now, they are offering an overbroad proposal that they argue is needed
to keep this country safe.
Let's be clear about what we need to stay safe. We need universal
background checks for firearms purchases. We need to give the FBI the
authority to deny guns to individuals suspected of terrorism. Senate
Republicans rejected those sensible measures last night, but we still
have the chance to give law enforcement real tools to fight terrorism
and violent crime. We should strengthen our laws to make it easier to
prosecute firearms traffickers and straw purchasers who put guns in the
hands of terrorists and criminals. And we need to fund the FBI and the
Justice Department so they have the resources they need to combat acts
of terrorism and hate. Those are the elements of the amendment that
Senators Mikulski, Baldwin, Nelson, and I have filed--and those are
among the actions that Congress could take to protect this country.
Instead Republicans are proposing to reduce independent oversight of
FBI surveillance of Americans' Internet activities and make permanent a
law that, as of last year, had never been used. And I should note that
this is the same law that the Republican leadership in the Senate
allowed to expire just last year.
In case there is any confusion, I will state it clearly: The McCain
amendment would not have prevented the Orlando attack.
The amendment would eliminate the requirement for a court order when
the FBI wants to obtain detailed information about Americans' Internet
activities in national security investigations. This could cover Web
sites Americans have visited; extensive information on who Americans
communicate with through email, chat, and text messages; and where and
when Americans log onto the Internet and into social media accounts.
Over time, this information would provide highly revealing details
about Americans' personal lives. The government should not be able to
obtain this information whenever it wants by simply issuing a subpoena.
Senator Cornyn and others have argued forcefully that we cannot
prevent people on the terrorist watch list from obtaining firearms
without due process and judicial review. They say we need an
independent decisionmaker; yet at the same time, they are proposing to
remove judicial approval when the FBI wants to find out what Web sites
Americans are visiting. The FBI already has authority to obtain this
information--if it obtains a court order under section 215 of the USA
PATRIOT Act. In an emergency where there is not time to go to court,
the USA FREEDOM Act allows the FBI to obtain this information before
getting judicial approval, so this amendment is unnecessary.
This amendment is opposed by major technology companies and privacy
groups across the political spectrum, from FreedomWorks to Google to
the ACLU. I ask unanimous consent that a letter from nearly 40
organizations and companies opposing this proposal be printed in the
Record at the conclusion of my remarks.
The Judiciary Committee also should study this proposal before it
proceeds. The Judiciary Committee has not held a hearing to examine
whether this expansion of the NSL statute is necessary or how it would
affect Americans' privacy and civil liberties.
Rather than trying to distract us from their opposition to
commonsense gun measures, Republicans should support actions that will
actually help protect us, like those in the amendment filed by Senator
Mikulski, Senator Baldwin, Senator Nelson, and myself. They should
support emergency FBI funding. They should support funding for the
civil rights division to help protect the LGBT community, the Muslim
American community, and the African-American community from hate crimes
and discrimination. And they should support my proposal to make it
harder for terrorists and criminals to evade background checks by
turning to firearms traffickers and straw purchasers. This is a
provision that I have developed with Senator Collins and that has been
strongly supported by law enforcement.
As we saw in San Bernardino, terrorists can acquire assault rifles by
simply using a friend to purchase the guns for them; yet prosecuting
such individuals for firearms trafficking has proven to be an extremely
difficult task. My proposal will fix these laws. It will provide law
enforcement the tools it needs to deter and prosecute those who traffic
in firearms, and it will help to close another glaring loophole in our
gun laws that allows terrorists and criminals to easily acquire
powerful firearms.
I urge Senators to oppose the McCain amendment and to support these
measures that will actually help keep our country safe.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 6, 2016.
Dear Senator: The undersigned civil society organizations,
companies, and trade associations strongly oppose an
expansion of the National Security Letter (NSL) statute, such
as the one that was reportedly included in the Senate's
Intelligence Authorization Act for Fiscal Year 2017 and the
one filed by Senator Cornyn as an amendment to the ECPA
reform bill. We would oppose any version of these bills that
included such a propsal expanding the government's ability to
access private data without a court order.
This expansion of the NSL statute has been characterized by
some government officials as merely fixing a ``typo'' in the
law. In reality, however, it would dramatically expand the
ability of the FBI to get sensitive information about users'
online activities without court oversight. The provision
would expand the categories of records, known as Electronic
Communication Transactional Records (ECTRs), that the FBI can
obtain using administrative subpoenas called NSLs, which do
not require probable cause. Under these proposals, ECTRs
would include a host of online information, such as IP
addresses, routing and transmission information, session
data, and more.
The new categories of information that could be collected
using an NSL--and thus without any oversight from a judge--
would paint an incredibly intimate picture of an individual's
life. For example, ECTRs could include a person's browsing
history, email metadata, location information, and the exact
date and time a person signs in or out of a particular online
account. This information could reveal details about a
person's political affiliation, medical conditions, religion,
substance abuse history, sexual orientation, and, in spite of
the exclusion of cell tower information in the Cornyn
amendment, even his or her movements throughout the day.
The civil liberties and human rights concerns associated
with such an expansion are compounded by the government's
history of
[[Page S4396]]
abusing NSL authorities. In the past ten years, the FBI has
issued over 300,000 NSLs, a vast majority of which included
gag orders that prevented companies from disclosing that they
received a request for information. An audit by the Office of
the Inspector General (IG) at the Department of Justice in
2007 found that the FBI illegally used NSLs to collect
information that was not permitted by the NSL statutes. In
addition, the IG found that data collected pursuant to NSLs
was stored indefinitely, used to gain access to private
information in cases that were not relevant to an FBI
investigation, and that NSLs were used to conduct bulk
collection of tens of thousands of records at a time.
Given the sensitive nature of the information that could be
swept up under the proposed expansion, and the documented
past abuses of the underlying NSL statute, we urge the Senate
to remove this provision from the Intelligence Authorization
bill and oppose efforts to include such language in the ECPA
reform bill, which has never included the proposed NSL
expansion.
Sincerely,
Access Now, Advocacy for Principled Action in Government,
American Association of Law Libraries, American Civil
Liberties Union, American Library Association, American-Arab
Anti-Discrimination Committee, Amnesty International USA,
Association of Research Libraries, Brennan Center for
Justice, Center for Democracy & Technology, Center for
Financial Privacy and Human Rights, CompTIA, Computer &
Communications Industry Association, Constitutional Alliance,
Demand Progress, Electronic Frontier Foundation, Engine.
Facebook, Fight for the Future, Foursquare, Free Press
Action Fund, FreedomWorks, Google, Government Accountability
Project, Human Rights Watch, Institute for Policy Innovation,
Internet Infrastructure Coalition/I2Coalition, National
Association of Criminal Defense Lawyers, New America's Open
Technology Institute, OpenTheGovernment.org, R Street, Reform
Government Surveillance, Restore the Fourth, Tech Freedom,
The Constitution Project, World Privacy Forum, Yahoo.
The PRESIDING OFFICER. The Senator from Maryland.
Mass Shooting in Orlando
Mr. CARDIN. Mr. President, I take this time to continue the
discussion as to the tragedy that occurred on June 12 in Orlando, FL.
The shooting occurred at a popular LGBT club, Pulse. The club owner,
Barbara Poma, lost her brother to the AIDS epidemic. The club was named
to remember a pulse that faded from this world far too early. Pulse was
not just a place to socialize, it was a refuge and a place of
acceptance and solidarity where members of the Orlando LGBT community
could be themselves without judgment.
The fact that an attacker would target this venue, especially during
Gay Pride Month, is a horrific tragedy and a senseless loss of human
life. My deepest sympathies are with those killed and injured in this
terrorist attack, along with their families and loved ones. My thanks
go out to the first responders who saved lives in the midst of such
danger.
This attack, and others like it in recent years, tears at our hearts
and leaves us angry, frustrated, and confused. We, as a nation, must
resolve to stop those who wish to do harm to Americans from committing
and encouraging acts of terror.
The Orlando shooter apparently subscribed to an extreme system of
beliefs that led him to carry out this heinous attack. No religion
condones or encourages such violence and killing. We must reject any
ideology that leaves room for discrimination and dehumanization to a
point where someone can commit these types of acts. No one should ever
fear for their life simply for being themselves or expressing who they
are as an individual. America's values of tolerance, compassion,
freedom, and love for thy neighbor must win out over hate, intolerance,
homophobia, and xenophobia.
The time for talk is over. We, as a nation, as a community, and as an
American family, must take actions to change minds, hearts, and,
finally, change policies. The attack in Orlando was a terror attack and
a hate crime. We can stop others and save lives by taking immediate
action.
I was disappointed we missed opportunities to do that yesterday with
sensible gun safety amendments. I cosponsored the Murphy amendment,
which would have created a system of universal background checks for
individuals trying to buy a gun. The amendment would have ensured that
all individuals who should be prohibited from buying a firearm are
listed in the National Instant Criminal Background Check System and
would require a background check for every firearm sale. We know there
are loopholes today. Why do we allow those loopholes to continue? It
should not matter whether you buy a gun at a local gun store or at a
gun show or on the Internet, you should have to pass a background check
so we can make sure guns are kept out of the hands of people who should
never have one. This amendment would have helped keep guns out of the
hands of convicted felons, domestic abusers, and the seriously mentally
ill, who have no business buying a gun.
Studies have shown that nearly half of all current gun sales are made
by private sellers who are exempt from conducting background checks.
It makes no sense that felons, fugitives, and others who are legally
prohibited from having a gun can easily use a loophole to buy a gun.
Once again, the use of a universal background check will have no
impact on the legitimate needs of people who are entitled to have a
weapon, but universal background checks could and would help us keep
our communities safe by helping us keep weapons out of the hands of
criminals and those who have serious mental illness and domestic
abusers. We need to stop their ability to easily be able to obtain a
weapon.
Universal background checks are strongly supported by the American
people. Most background checks can be completed very quickly and do not
inconvenience a purchaser at all.
To my colleagues who have reservations about this legislation, let me
cite the Heller decision. In June 2008 the Supreme Court decided the
case of District of Columbia v. Heller. The Court held that the Second
Amendment protects an individual's right to bear arms rather than a
collective right to possess a firearm. The Court also held that the
Second Amendment right is not unlimited, and it is not a right to keep
and carry any weapon whatsoever in any manner and for any purpose.
Justice Scalia wrote for the Court in that case:
Nothing in our opinion should be taken to cast doubt on the
longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of firearms.
That was Justice Scalia for the Court.
Justice Scalia recognized Congress's right to make sure those who are
not qualified to own a firearm do not get that firearm. We have an
obligation to make sure that background checks are effective so as to
keep out of the hands of criminals and those who have serious mental
illness the opportunity to easily be able to obtain a firearm.
The legislation pending before us in the Senate is fully consistent
with the Heller decision. That amendment would have been fully
consistent with the Heller decision and Justice Scalia's opinion.
I know we can protect innocent Americans while still protecting the
constitutional rights of legitimate hunters and existing gun owners. We
should take that action on behalf of the American people.
There was a second amendment I cosponsored that unfortunately was
rejected yesterday--the Feinstein amendment--that would close the
terror gap. If you are not safe enough to fly on an airplane, you
shouldn't be able to buy a gun. The Feinstein amendment would give the
Attorney General the authority to block the sale of guns to known or
suspected terrorists if the Attorney General has reason to believe the
weapons would be used in connection with terrorism. The amendment would
have ensured that anyone who had been subject to a Federal terrorism
investigation in the past 5 years would have been automatically flagged
with the existing background check system for further review by the
Department of Justice.
Note that under this amendment, being included on a terrorist watch
list is not by itself a sufficient justification to deny a person the
right to buy a firearm. The Attorney General may deny that weapon
transfer only if she determines that the purchaser represents a threat
to public safety based on a reasonable suspicion that the purchaser is
engaged or has engaged in conduct related to terrorism. So there is a
standard there.
[[Page S4397]]
A recent GAO report concluded that approximately 90 percent of
individuals who were known or suspected terrorists were able to pass
background gun checks. This amendment would have closed this loophole
and would have reduced the risk of a terrorist being able to legally
acquire a firearm.
Under current law, individuals who are known or suspected terrorists
and do not fall into one of the nine prohibited purchaser categories
can legally purchase a weapon. While the FBI is notified when
individuals on the terrorist watch list apply for a background check
through the National Instant Criminal Background Check System, it does
not have the authority to block the sale.
The Feinstein amendment contains remedial procedures so that
individuals get the reason for denial, the right to correct the record,
and the right to bring action to challenge the denial. In other words,
there is due process in the Feinstein amendment.
So I was disappointed that the two amendment chances we had yesterday
were not approved by the Senate. I think both would have helped in
making our communities safer.
Congress has an obligation to act. As I have indicated before, we
need to act. Inaction is not an option. The President of the United
States has already acted to the extent he is permitted using his
Executive authority. Many of our States have acted as well, including
my own State of Maryland, but we need a national law that applies to
all 50 States to stop criminals, terrorists, domestic abusers, and
others who should not get their hands on a gun from simply driving to a
nearby State with less restrictive gun laws and being able to legally
acquire a weapon.
I encourage my colleagues to continue to work on compromise
legislation on the issue of universal background checks and terror
watch lists. Congress should also act to ban assault-type weapons,
which have no legitimate civilian use, and we should ban the sale of
high-capacity magazines which only increase the level of carnage in a
mass shooting.
The time for action is now. We cannot wait.
Mr. President, with that, I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Miners Protection Act
Mrs. CAPITO. Mr. President, I rise today to express the urgent need
to take up and pass a piece of legislation which has great meaning for
me and my fellow West Virginians and which is important to our Nation's
coal-mining community, and that is the Miners Protection Act.
Seventy years ago, in 1946, President Harry Truman secured an
agreement committing the Federal Government to protect lifetime health
and pension benefits for our Nation's miners. These men and women
earned this care through their tireless and often very dangerous work
to produce the coal that has powered our Nation and spurred economic
growth for years.
Over the course of seven decades, Congress has kept their promise. In
1992, a bipartisan effort in Congress led by my predecessor, Senator
Rockefeller, resulted in the passage of the Coal Act to address the
health care needs of orphaned coal miners. Those are miners whose
companies are no longer in existence.
In 2006, I voted for legislation that built upon the Coal Act and
continued the bipartisan congressional tradition, fulfilling our
promise to coal miners and their families and retirees and protecting
their promised health care benefits.
In 2012, the bankruptcy of Patriot Coal placed the health care of
more than 12,000 retirees and dependents at risk. A temporary solution,
which has been going on for a couple of years, has preserved health
care for these individuals, but that short-term solution is nearing an
end.
Additional coal industry bankruptcies--and I feel like we hear about
one a week, and they are major--have threatened health care benefits
for more families.
If we don't act now, health care for more than 21,000 miners and
families will be lost by the end of this year--just 6 months from now.
West Virginians really know what mining has meant to our State and to
our Nation, and our miners have depended on these benefits. Every day I
am reminded of this.
Char from Bob White, WV--and Bob White is the name of the little town
he lives in--recently wrote to me:
We are desperate. Our benefits are about to lapse unless we
get this legislation passed. It cannot be ignored again. Many
retired miners cannot afford to pay for their medications if
we lose our health care.
Kenneth, who lives in Mullens, WV, said:
It seems more and more that the attack on coal is no longer
an industry attack but one that is personal on individuals.
He went on to ask this question: ``What about folks like me that
worked hard their entire life?''
Recognizing the significance of this problem, I joined with
Congressman David McKinley to introduce legislation in 2013 that
addressed both the retiree health care and the looming insolvency of
the mine workers' multiemployer pension bill.
Last year, Senator Manchin and I introduced the Miners Protection
Act, a very similar bill. This bill demands immediate action. We need
to follow through with our commitment to all the hard-working West
Virginians and other coal miners across this country. In addition to
addressing the health care needs of retirees through the same
mechanisms supported by Congress in 1993 and 2006, the Miners
Protection Act will ensure the solvency of the multiemployer pension
plan that provides benefits to almost 90,000 retirees and surviving
spouses. More than 27,000 of those--nearly one-third--live in my home
State of West Virginia. The Miners Protection Act uses unobligated
funds authorized by the 2006 AML reauthorization bill to support
existing mine-working health and pension programs.
Let's be clear. Mining retirees do not receive lavish benefits. The
average pension payment is only $560 per month. But these funds are
vital to our retirees who live on very small fixed incomes. They are a
key part of a local economy in West Virginia and other States where
these retirees live.
If we fail to act, the pension plan will become insolvent, imposing
projected liabilities of over $4 billion on the PBGC, known as the
Pension Benefit Guaranty Corporation. If we pass the Miners Protection
Act, the pension plan will remain in good standing, benefiting
taxpayers, beneficiaries, and coal communities.
In May, the trustees of the UMWA Health and Retirement Funds
announced that contributions to the pension fund have dropped by nearly
two-thirds from last year's level. This just shows you how devastated
our coal communities are.
The continued regulatory assault on the coal industry has hastened
this decline and threatened the retirement security of our miners. In
2001, the EPA finalized the mercury and air toxins rule for coal
plants. Since that time, our Nation has lost more than 40,000 coal
jobs, and 1,000 of those workers are West Virginians. Our State's
unemployment is among the highest in the country for this very reason.
The impact of other EPA proposals, like the Clean Power Plan, which has
been stayed by the Supreme Court, and the stream protection rule that
is currently being finalized, would make the situation even worse in
our coal communities.
As I have said many times before, the negative regulatory impact on
coal extends far beyond the tens of thousands of families who are most
directly affected. A loss of coal severance tax revenue has triggered
drastic budget problems for our State, which we just got a 1-year
solution for, and a lot of our local governments are having to lay off
county workers and school workers and schoolteachers.
The severe impact on the health care pensions of our miners is
another consequence of the administration's War on Coal.
Given that Federal policies have played a major role in causing this
problem, it is appropriate for the Federal Government to fulfill its
commitment to retiring miners who will lose their promised benefits
unless we act.
The Miners Protection Act is critically important to so many people
in my State and across this country. We need to keep the promise of
lifetime health care for those retired coal miners whose companies have
gone through bankruptcy, and we need to
[[Page S4398]]
make sure our retirees receive the pension benefits they have worked so
hard for.
The Miners Protection Act is a truly bipartisan effort. It is
supported by Democrats and Republicans and Independents in the Senate.
There are 72 cosponsors on the House bill, including 39 Republicans and
33 Democrats.
West Virginians understand that this need not be a political
football. As Thomas from Shady Spring, WV, put it, ``This issue is not
partisan; this is an easy fix to funding promised pensions.''
It is important this bill be enacted this year before the temporary
solution expires and ends the health care benefits for so many retirees
and before the continued downturn takes an even greater toll on the
pension fund.
I will continue to work with my colleagues in the West Virginia
delegation, including Senator Manchin, Congressman McKinley,
Congressman Mooney, and Congressman Jenkins, and all of the other
cosponsors of this legislation, to see it become law before it is too
late.
Thank you, Mr. President.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. MANCHIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MANCHIN. Mr. President, first of all, I thank my colleague,
Senator Capito. We come from the same State, and we have known each
other for a long time, and we basically represent the same people, who
have given so much to this country. I want to thank her. This is truly
bipartisan, and that is how it should be in this body. When you have
something causing the people in your State and in the country to be
hurting, you don't worry about the politics. Democrat or Republican,
you reach across the aisle and do the right thing.
I thank her so much. Everything she said is absolutely correct. This
thing goes clear back to 1946 under President Harry Truman. At that
point in time, John L. Lewis basically was going on strike for the MWA.
Every miner back in the 1940s belonged to the United Mine Workers. This
Miners Protection Act basically fulfills the promise that a President
of the United States made by Executive order. And what we have asked
for now is to fix this.
We have a pathway forward. Democrats and Republicans on both sides of
the aisle, as Senator Capito has said, have stepped forward, and I am
so appreciative of that. If we don't do something quickly--by the end
of this year--they will lose their health care, and in another year or
two they are going to lose their pensions.
We are mostly talking about widows. Most of their husbands have
passed away from black lung disease or other causes. These are widows
who don't have much to begin with. These are stipends that assist with
their medical and health care.
This is something that should have been done a long time ago, but we
are taking it right down to the end of the wire. That is what we are
concerned about.
We have asked everybody to look at the bill. We have found pay-fors.
Here is a really good pay-for. The 1974 fund was solid until the
collapse of 2008. The collapse didn't happen because the MWA did
something wrong with the miners' pensions. It happened because of Wall
Street. Guess what. We have a $5 billion fine on Goldman Sachs. We
said: Let's take $3.5 billion of it. That is what caused the problem;
that is a pay-for. We are also using abandoned mine land money excess--
not any of the mitigation we are responsible for.
Senator Capito has laid this out to the point, and we have worked
together. Both of our staffs have worked closely together on this. This
is the way things should have been done.
We hope that all of our colleagues on both sides of the aisle will
encourage the leadership to take a position on this and put it up for a
vote. We think it will pass. We know that it will pass if it gets its
day in court. This is the body that will make it happen. I think on the
House side they will do the same thing.
With that, I thank Senator Capito again for the hard work she has
done. It is a pleasure working with her, and we will show that
bipartisanship is alive and well in West Virginia and should be alive
and well in the United States of America.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Ayotte). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COATS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ending U.S. Aid for Palestinian Acts of Terrorism
Mr. COATS. Madam President, terrorist violence against civilians in
Israel has been accelerating in recent years amounting to what is now
called the silent intifada, the term meaning ``violent uprising.''
Perhaps it is called silent because we are not paying enough attention
to the atrocities that are currently taking place in Israel.
The first intifada lasted from December 1987 to 1993, the second,
from 2000 to 2005. This third uprising, the so-called silent intifada,
began in Jerusalem in 2014. Last year, the latest intifada was
characterized with a new name, ``knife intifada.'' Earlier, we
witnessed media accounts of Palestinian terrorists slaughtering
Israelis and others, including American citizens, by blowing up
restaurants or schoolbuses or using automatic weapons. Breaking news on
CNN or FOX, or whatever we were watching, showed us the scenes of body
parts, pools of blood in the streets, ambulances, with sirens
screaming, rushing to the nearest hospital or aid station with
mutilated and badly injured victims of these attacks. Lately, though,
the weapons of choice seem to be increasingly the knife. Apparently, in
some ways, the Palestinians think the direct face-to-face bloody
slaughter of a teenager or a grandmother by a knife-wielding thug makes
it even more personal and horrifying. Americans may know, through
recent media reports, about this wave of violence injecting new poison
into the region, but I think what most don't know is that American
taxpayers are supporting this with their tax dollars. Let me repeat
that.
While we may be aware of some of what is going on in Israel through
this knife intifada, through the continued horrors and the murders that
are taking place, what Americans don't seem to know--in fact, what many
of us have now learned--is that their tax dollars are supporting this
effort. Since 1998, the Palestinian Authority has been encouraging such
attacks by honoring and supporting Palestinian terrorists serving
criminal sentences in Israeli prisons and rewarding the families of
those who were martyred by their own violent acts.
Since then, the system of payments has been formalized and expanded
by President Abbas in Presidential directives. Palestinian terrorist
prisoners are regarded by the Palestinian Authority as patriotic
martyrs, fighters, heroes, and actually as employees of the Government
of the Palestinian Authority. While in prison for their crimes, they
and their families are paid premium salaries and given extra benefits
as rewards for their service--their service being a criminal act, an
assault, and even a murder. It is interesting that they use that word.
Under release from custody, the terrorists then become civil service
employees. Shockingly, monthly salaries for both incarcerated and
released prisoners are on a sliding scale, depending on the severity of
the crime and the length of the prison sentence. Thus, the more heinous
the crime, carrying a longer sentence, enables the criminal or his
family to receive a much higher premium salary. For example, a prisoner
with a 5-year sentence or his family receives about $500 a month;
whereas, a more serious criminal serving a 25-year sentence will
receive $2,500 a month--six times the average income of the average
Palestinian worker. Where else in the world does a prisoner receive
such benefits that actually increase with the severity and violence of
the crime?
In May 2014, Palestinian President Mahmoud Abbas issued a
Presidential
[[Page S4399]]
decree that moved this payment system from the PA, Palestinian
Authority, to the PLO, the Palestine Liberation Organization. The
openly acknowledged reason for this shift was to sidestep the
increasingly critical scrutiny of this payment system by foreign
governments--including the United States--which are contributing much
of the money that is keeping the Palestinian Authority afloat.
In 2014, I, along with Senators Graham and Kirk, cosponsored an
amendment to the fiscal year 2015 appropriations bill providing for the
reduction of budgetary support for the PA by an amount the Secretary of
State determines is equivalent to the amount expended by the PA as
payments for acts of terrorism by individuals who are imprisoned after
being fairly tried and convicted for acts of terrorism and by
individuals who died committing acts of terrorism during the previous
calendar year. That is something Senator Kirk, Senator Graham, and I
worked on to try to address this issue. Subsequent annual
appropriations legislation continues now to include this provision.
Once that prohibition was enacted and became law, PA President Abbas
formally ended the program and transferred that support function to the
PLO, by transferring to the PLO the exact amount that had been budgeted
by the Palestinian Authority accounts for this prisoner support
purpose; in other words, nothing but a shell game. Oh, we are getting a
lot of criticism about providing support to these so-called martyrs,
these criminals who have been convicted in Israeli courts. We are
getting criticized for doing that--actually, people are telling us it
is an incentive to do this. The sickness of this is that families
benefit by having one member of their family actually go out and commit
a crime, including a murder, getting sentenced to prison for a number
of years, and then the family or the criminal is being rewarded for
that very act.
So when criticism came and the language we passed in the Congress
which enforced this came, Abbas simply pulled out a shell game and
said: I will just shift the money and the authority over here,
designating that the cutoff of aid by the United States and other
countries now was going to a different authority. Now, the relationship
between the two organizations, while complex, is also very intertwined.
While the PLO claims it is an independent body, the PA receives its
legitimacy and mandate from the PLO in agreements with Israel. In
effect, the PA is subordinate to the PLO.
I am speaking on the Senate floor because I have become increasingly
concerned that this payment issue is not receiving the public attention
and criticism it deserves. People think, well, we have solved the
problem through the language which we passed a couple of years ago but
are now discovering that a shell game was simply in play and that money
is simply fungible and then shifted over to another function under the
PA called the PLO that is then now distributing the money to the
families.
It appears some pro-Israel organizations may be hesitant to bring
more pressure on the financially weak, dependent PA, believing it would
deprive Abbas of what little remains of his authority and status as a
negotiating partner, thus making a negotiated settlement with Israel
less likely. It also appears that some Israeli officials have been
reluctant to support the cutoff of aid to the PA, presumably to
preserve the PA's stability as a West Bank security provider.
Our administration--the U.S. administration--is similarly not eager
to enforce this issue. The Department of State's Bureau of
Counterterrorism said in a report last month that this payment system
was ``an effort to reintegrate released prisoners into society and
prevent recruitment by hostile political factions.'' There is nothing
in the PA Presidential directives establishing this system that
justifies such an absurdly positive view of its purposes. The U.S.
Government should not see this payment program in such a positive light
at all, nor does the Palestinian Authority deserve immunity because of
its fragility. These payments provide rewards and motivations for
brutal terrorists, plain and simple. To provide U.S. taxpayer money to
Abbas and his government so they can treat terrorists as heroes or
glorious martyrs is morally unacceptable. To tolerate such an outrage
because of concern for Abbas's political future or preserving the PA's
security role for Israel amounts to self-imposed extortion. If the PA's
fragile financial condition requires U.S. assistance, then it is their
policy--not ours--that must change.
Let me be more specific as to why we need to take immediate action to
stop the use of U.S. taxpayer dollars to reward the PLO for its
barbaric acts. Since 2014, there have been at least 45 terrorist
attacks in Israel killing 585 people, including Americans. Just this
past March, Taylor Force, a U.S. Army veteran of Iraq and Afghanistan,
was stabbed to death by a Palestinian terrorist in Jaffa. Taylor was a
graduate of the U.S. military academy, and as a former U.S. military
officer, he was buried with full honors. His attacker was killed by the
Israeli police. This terrorist then received the honors of his own
community and a burial ceremony that glorified him as a martyr, the
highest religious achievement in Islam. The official Palestinian
Authority spokesman said the celebration funeral was ``a national
wedding befitting of martyrs''--a reference to the Islamic belief that
a martyr marries 72 dark-eyed virgins in paradise.
The family who presumably paid for this celebration received
substantial rewards from the Palestinian Government and will now
receive a permanent monthly stipend. Some of that money is paid into
the U.S. Treasury by American taxpayers and is given as assistance to
the Palestinian Authority, which is then shell moved over to the PLO
and then provided as a reward for killing an American soldier.
I, for one--and I am sure I am speaking for the American taxpayer--am
not interested in paying for a martyr's funeral or his so-called
wedding. I am also not interested in paying for what amounts to civil
servant salaries for the two terrorists who shot four Israelis to death
this past June in Tel Aviv or the two Palestinian boys who attacked
customers in a supermarket in February or the 16-year-old terrorist who
stabbed an Israeli mother of six to death in her own kitchen last
January.
I could go on and on about these atrocities and murders, and to think
that American taxpayer dollars are paying the families and criminals of
those who committed the crimes, with our tax dollars.
As I said earlier, we need an immediate response to this outrage, and
I am ready to lead the effort. First, I intend to work with my
colleagues, particularly Senator Graham and Senator Kirk, who are on
the relevant committees and had joined me years ago to try to put a
stop to this. I want to work with them to end American financial
support for incarcerated terrorists or the families of these so-called
martyrs who have earned that status by the brutal slaying of Jewish
citizens, including some Americans. We will identify the amount of
money that flows from the PA to the PLO for this purpose and cut U.S.
assistance by at least that amount. If that partial cutoff of U.S. aid
is not sufficient to motivate the PA to end this immoral system of
payments to terrorists, I propose a complete suspension of any
financial assistance to the Palestinian Authority until their policy
has changed.
I am aware that suspending assistance to the Palestinians will have
other consequences that we and Israel will have to address, but I
believe the pressure that we and other like-minded governments could
and should apply in this manner will bring President Abbas and other
Palestinian officials to their senses. Whether or not this will occur,
the moral imperative is clear: Payments that reward and encourage
terrorism must stop. We have a moral obligation to do all that we can,
as soon as we can, to stop financing the murder of innocent Israelis
and Israel's friends and supporters.
With that, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Gardner). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
For-Profit Colleges
Mr. DURBIN. Mr. President, I have taken the floor many times to call
to
[[Page S4400]]
the attention of the Senate abuses by for-profit colleges, an industry
that enrolls 10 percent of all college students, receives 20 percent of
all Federal aid to education, and accounts for 40 percent of all
student loan defaults. That is 10 percent of the students and 40
percent of the student loan defaults. I have spoken about specific
companies involved in this industry--for-profit colleges and
universities--including Corinthian, the University of Phoenix, DeVry,
ITT Tech, Westwood, and Ashford. It is a long list. I have spoken about
Congress's responsibility and the responsibility of the Department of
Education to reform higher education laws and be aggressive in
overseeing these companies. Fortunately, things are starting to change
at the Department of Education.
Today, I wish to speak about the accreditors and one in particular--
the Accrediting Council for Independent Colleges and Schools, or ACICS.
Accreditors are, according to the Department of Education,
responsible for ensuring that education provided by institutions meet
acceptable levels of quality. In that role, they are, frankly, the
gatekeepers of Federal dollars that flow to these colleges and
universities. Without accreditation, the schools can't receive the
money through the students for Pell grants and Federal loans. But, by
law, the Department of Education decides which accrediting agencies are
``reliable authorities as to the quality of education or training
provided by the institutions of higher education and the higher
education programs they accredit.''
In order to be a gatekeeper of Federal educational student aid funds
like loans and grants, these accrediting agencies must be approved by
the Department of Education. The Department performs periodic reviews
of federally recognized accrediting agencies to ensure that they are
still ``reliable authorities.''
Here is where ACICS comes in. This outfit is currently undergoing one
of those regular reviews by the Department and the Department's
advisory board. It is a group called NACIQI, the National Advisory
Committee on Institutional Quality and Integrity and they will hold a
hearing on ACICS this Thursday. Last week, in the first part of this
review process, the Department of Education staff made its initial
recommendation to NACIQI to revoke the recognition of ACICS, an
accrediting agency responsible for about 25 percent of all for-profit
colleges and universities.
This is the right decision. I commend the Department. I hope that
NACIQI and ultimately the Secretary of Education, Mr. King, will follow
the recommendation.
Last week, I joined Senators Blumenthal, Murray, Brown, and Warren in
writing to NACIQI to express support for their recommendation. For too
long, this accrediting agency has acted as a rubberstamp for some of
the worst for-profit colleges in America. Let's take one example to
start with: Corinthian. Some will remember this company. It lied to the
Federal Government and to the students who went to school there about
its job placement rates. Listen to this. They used a scheme where they
paid employers to hire recent graduates of Corinthian in temporary jobs
so that Corinthian could report to the Federal Government that their
graduates got employment. They were caught. The fraud was systemic at
Corinthian and ultimately resulted in its bankruptcy. They were
defrauding the government and, even worse, they were defrauding these
students and their parents.
I wrote to the Department of Education asking them to look into these
allegations of fraud about Corinthian in December of 2013. That same
day I wrote to Dr. Albert Gray. He was the CEO of ACICS, which was the
agency which accredited Corinthian. That was the agency that said to
the Federal Government: This is a real college; you should let Federal
funds flow to this college.
So I wrote to Dr. Gray and I said: What are you doing as an
accrediting agency to hold Corinthian accountable and to ensure that
they do not continue their fraudulent practices?
I received a response from Dr. Gray. His letter said the allegations
were ``a source of great concern'' and that the council that he
administered would review information submitted by Corinthian and
``make a determination of what actions to take regarding additional
inquiries, compliance hearings or more serious sanctions.''
This so-called review of Corinthian by ACICS continued for more than
a year, even as States like California, Massachusetts, and Wisconsin
and Federal agencies such as the Consumer Financial Protection Bureau
filed suit against Corinthian for their corrupt practices. Meanwhile,
their accrediting agency was ``really looking into this''--really
looking hard.
As the evidence of Corinthian's fraud and abuse mounted, ACICS--this
accrediting agency--continued its wishy-washy ``monitoring'' that never
led to anything. In fact, up until the date that Corinthian Colleges
declared bankruptcy in May of 2015, they were still fully accredited by
this ACICS accrediting agency. That is disgraceful.
But it wasn't disgraceful to ACICS. In response to an effort by
Senator Chris Murphy of Connecticut in a 2015 Senate HELP Committee
hearing to get Dr. Gray to admit that ACICS made a mistake by
continuing to accredit Corinthian, Dr. Gray said:
I will be the first to admit that accreditors like any
other organization make mistakes. Corinthian was not one of
those mistakes.
Incredible--here is a group that has defrauded students, defrauded
the Federal Government, is being sued by at least three States and
other Federal agencies, had declared bankruptcy, and the accrediting
agency was still standing firmly behind it. Is this an organization
that we can truly trust as taxpayers to be a reliable authority as to
the quality of education? This is the gatekeeper--this agency, this
accrediting agency--the gatekeeper for millions and sometimes billions
of dollars to flow out of the Treasury from taxpayers through students
and their families to lots of CEOs at for-profit colleges that are
doing quite well, thank you. History tells us we can't trust ACICS.
Corinthian isn't the only embarrassment on the ACICS resume.
According to the Center for American Progress, more than half of the
$5.7 billion in Federal student aid awarded to ACICS-accredited schools
in the past 3 years went to institutions facing State and Federal
investigations or lawsuits. Twenty percent of the students at these
for-profit schools accredited by this discredited agency defaulted on
their Federal student loans. Does this sound like an organization that
is a reliable authority when it comes to quality education schools
provide?
In my home State of Illinois, Attorney General Lisa Madigan, who has
been a real leader on this subject, settled a lawsuit last year against
the notorious Westwood College. Westwood's practices were not all that
different from Corinthian--lying to students about job prospects.
I remember meeting a young girl in Chicago. She had been smitten by
all of these criminal investigation shows on television. So she signed
up at Westwood, and she signed up to take courses in criminal justice.
It took her 5 years to finish, to get her so-called degree from
Westwood College in Chicago. Do you know what she found afterwards? Not
a single law enforcement agency would even recognize her diploma. She
spent 5 years and, even worse, she went deeply in debt--almost $90,000
in debt--for a worthless diploma from Westwood College. She moved back
into her parents' home, living in the basement, and her dad came out of
retirement to try to earn some money to help pay off the student loans
at this worthless Westwood school.
Guess who accredited Westwood College. ACICS, the same agency. In
fact, in the course of their investigation, the attorney general's
office found that ACICS was not annually verifying even a sample of job
placements reported by Westwood and other institutions they accredited.
There are so many other examples of negligence by this accrediting
agency. That is why 13 State attorneys general, including Lisa Madigan
of Illinois, have written to the Department of Education asking them to
revoke ACICS' recognition.
Mr. President, I ask unanimous consent that the letter from the
attorneys general be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S4401]]
The Commonwealth of Massachusetts, Office of the Attorney
General,
April 8, 2016.
Re Opposing the Application for Renewal of Recognition of the
Accrediting Council for Independent Colleges and Schools
(ACICS).
Hon. John King,
Department of Education, Washington, DC.
Jennifer Hong,
Executive Director/Designated Federal Official, National
Advisory Committee on Institutional Quality and
Integrity, U.S. Department of Education, Washington, DC.
Dear Secretary King and Ms. Hong: We write in response to
the notice of intent to accept written comments on the
application for renewal of accrediting agencies,
specifically, the Accrediting Council for Independent
Colleges and Schools (ACICS), as published in the Federal
Register on March 18, 2016. We have carefully reviewed the
Criteria for the Recognition of Accrediting Agencies,
including Sec. Sec. 602.16(a)(1)(i), 602.19(a) & (b), and
602.20(a), that are of particular importance to our
consumers. We believe that stronger oversight by accrediting
agencies is necessary to protect vulnerable students from
predatory schools, ensure accountability to taxpayers, and
level the playing field for career schools that are
delivering quality, affordable programs. Given ACICS' failure
to ensure program quality at the institutions it accredits,
we oppose renewal of recognition and urge the Department to
revoke its status as a recognized accreditor.
Because the Department of Education does not directly
assess the quality of institutions of higher education,
students depend on accreditors to ensure that schools provide
an education that fleets at least minimum standards of
quality. Accreditors, more than any other party charged with
.he supervision of higher education, are responsible for
protecting students from profit-seeking institutions offering
training of no educational value. Today, when millions of
students are defaulting on the student loans they incurred to
attend subpar for-profit schools, it is clear that certain
accreditors are failing to do the job.
Even in the crowded field of accrediting failures, ACICS
deserves special opprobrium. According to a recent analysis
by ProPublica, only 35% of students enrolled at ACICS
accredited schools graduate from their programs, ``the lowest
rate for any accreditor.'' Of students who actually did
graduate, more than one in five defaulted on their student
loans within the first three years after graduation. A full
60% had not yet paid down a single dollar of the principal
balance on their loans.
As consumer advocates in our respective states, our offices
have investigated many ACICS accredited schools based on
complaints from students, and found a fundamental lack of
substantive oversight for student outcomes by the accreditor.
Lapses that we have encountered include a failure to take
action when improper job placement statistics are reported,
inadequate job placement verification processes, and a lack
of transparency and cooperation with investigations into
student outcomes.
ACICS' most spectacular failure was its decision to extend
accreditation to several dozen schools operated by Corinthian
Colleges. Corinthian's practice of offering extremely
expensive degrees of little value to low-income students has
been the target of more than twenty state and federal law
enforcement agencies. Yet ACICS continued to provide
accreditation to Corinthian's schools until the day
Corinthian declared bankruptcy. The U.S. taxpayer provided
approximately $3.5 billion to Corinthian, made possible by
ACICS's accreditation.
ACICS has failed repeatedly to take action in response to
public enforcement actions by state and federal law
enforcement. In the Illinois Attorney General's investigation
and subsequent litigation with Westwood College, the office
found that ACICS was not annually verifying even a sample of
job placements reported by the institutions it accredits.
When asked by the attorney general's office, ACICS would not
commit to formally outline their verification process in an
affidavit. This type of obfuscation hinders regulatory
cooperation between the ``triad'' that oversees higher
education in the United States, the federal government, the
states, and accreditors.
There are other examples of ACICS' failure to identify
compliance problems and enforce its accreditation standards.
In 2015, Education Management Company (EDMC), with campuses
accredited by ACICS including The Art Institute and Brown
Mackie College, settled with thirty-nine State Attorneys
General and agreed to forgive $102.8 million in outstanding
loan debt. ITT Tech has been sued by the Consumer Financial
Protection Bureau, and Attorneys General of Massachusetts and
New Mexico and is under investigation by 19 other states.
Daymar College employed dozens of unqualified faculty as
determined by the Kentucky Council on Postsecondary Education
and the Kentucky Attorney General, yet ACICS took no action
to rebuke the school or require remedies for students. Daymar
subsequently settled with the Attorney General and agreed to
provide $11 million in debt relief and pay $1.2 million in
student redress. National College of Kentucky, Inc. was fined
$147,000 by a Kentucky Court for failing to fully respond to
a subpoena from the Kentucky Attorney General. National
College of Kentucky later admitted in litigation with the
Kentucky Attorney General that it advertised false job
placement rates yet ACICS has taken no action against the
school.
Career Education Corporation, whose Sanford Brown schools
are ACICS-accredited, settled with the New York Attorney
General's Office in 2013 for $10.25 million based on findings
that CEC fabricated job placement rates. ACICS failed to
identify the placement rate inaccuracies and, when CEC's
misconduct came to light, failed to terminate or suspend
accreditation to any Sanford Brown Schools. In fact, ACICS
did not even request that CEC recalculate inaccurate
placement rates for several of the affected cohorts.
It should be noted that ACICS has representatives of these
problem schools on its board and committees, raising serious
questions about potential conflicts of interests and
therefore ACICS's ability to impartially evaluate those and
other schools. For example, ITT, Corinthian Colleges, and
National College all had representatives on the ACICS Board
of Directors/Commissioners during the pendency of these
enforcement actions or the events leading thereto.
ACICS's accreditation failures are both systemic and
extreme. Its decisions to accredit low-quality for-profit
schools have ruined the lives of hundreds of thousands of
vulnerable students whom it was charged to protect. It has
enabled a great fraud upon our students and taxpayers. ACICS
has proven that it is not willing or capable of playing the
essential gate-keeping role required of accreditors. It
accordingly should no longer be allowed to do so.
The state attorneys general appreciate this opportunity to
comment and we urge the Department to exercise its
appropriate discretion in refusing to renew recognition.
Sincerely,
Maura Healey, Massachusetts Attorney General; Brian E.
Frosh, Maryland Attorney General; Thomas J. Miller,
Attorney General of Iowa; Lisa Madigan, Illinois
Attorney General; Andy Beshear, Kentucky Attorney
General; Karl A. Racine, District of Columbia Attorney
General; Janet Mills, Maine Attorney General; Stephen
H. Levins, Executive Director, Hawaii Office of
Consumer Protection; Lori Swanson, Minnesota Attorney
General; Ellen F. Rosenblum, Oregon Attorney General;
Eric T. Schneiderman, New York Attorney General; Hector
Balderas, New Mexico Attorney General; Bob Ferguson,
Washington Attorney General.
Mr. DURBIN. Mr. President, ACICS has shown time and again that it is
not a reliable authority when it comes to the quality of an education.
It is not a responsible steward of taxpayers' dollars.
Follow the money in this case. Think of schools like Corinthian that
took billions of dollars out of the Federal Treasury through loans that
are assigned to students and paid into Corinthian so they can maintain
their operations and pay handsome salaries to their CEO. Now they go
bankrupt, and at that point the students of Corinthian have a choice.
They can keep their worthless semester hours from Corinthian and keep
their debt or they can walk away from both. Well, many of them choose
to walk away. When they walk away, they have wasted years of their
lives, but even more important, taxpayers have just taken a beating.
These are corrupt capitalist ventures that rely, for 85 to 95 percent
of their revenue, directly on the Federal Government. These are not
free market entities. These are not private corporations. It is crony
capitalism at its worst.
So, today, I want to commend the Department of Education for making
its recommendations to NACIQI to withdraw ACICS' federal approval. I
hope this is the beginning of the end for this awful organization that
has been complicit in defrauding students and the fleecing of taxpayers
by major for-profit education companies for way too long.
I encourage the Department to continue to remain steadfast in its
current position and to ensure that the students and institutions that
ACICS currently accredits are well informed that this process is under
way.
Finally, I will say that ridding our higher education system of ACICS
is a good first step, but more needs to be done to reform it. In the
coming weeks, I will be introducing an accreditation reform bill with
several of my colleagues, and I hope this issue will be front and
center during the Senate's consideration of a Higher Education Act
reauthorization in the next Congress.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
[[Page S4402]]
Climate Change
Mr. WHITEHOUSE. Mr. President, I am here for the 141st time to urge
my colleagues to wake up, in this case more specifically to the
political influence, particularly the dark money, that perpetuates the
climate blockade in Congress.
In 1831, Alexis de Tocqueville traveled to the United States to write
his famous ``Democracy in America.'' De Touqueville described our
American style of government as ``quite exceptional.'' He wrote about
it with affection and with fascination. He may have been the first
American exceptionalist.
As the son and grandson of Foreign Service officers, I can personally
attest to the importance of America as a paragon of government across
the globe, as an aspirational model of self-governance, and as a
country that others count on that comes to help, not to loot or
conquer.
The roots of our American exceptionalism are found in the three
simple words that introduce our Constitution: ``We the People.'' The
notion that the government belongs to the people seems unremarkable
now, but in its day, it was literally revolutionary.
Today, this proposition is under threat from few very well-heeled
special interests and their shadowy front groups, all powered up by the
Supreme Court's disastrous 5-to-4 Citizens United decision. In that
decision, the Court's conservative bloc overturned long-standing laws
of Congress, rejected the common sense of the American people, and gave
wildly outsized influence over our elections to a little stable of Big
Money interests, creating what one newspaper in Kentucky has aptly
called a ``tsunami of slime.''
The evidence is in. The evidence is found in our elections, where the
tsunami of outside cash has wiped out previous campaign spending
records and created whole new campaign spending categories that never
existed before, like dark money. And the evidence is found in this
Chamber, where before Citizens United we had a thriving bipartisan
debate on climate change. Now we have exactly the silence the polluters
want from the Republican side. It wasn't very long after de Tocqueville
published his famous book on American democracy that the physicist John
Tyndall wrote about excess heat trapped by the buildup of certain gases
in the atmosphere. He wrote:
[T]o account for different amounts of heat being preserved
to the earth at different times, a slight change in [the
atmosphere's] variable constituents would suffice for this.
Such changes in fact may have produced all the mutations of
climate which the researches of geologists reveal.
Those ``variable constituents'' to which Tyndall referred included
carbon dioxide, methane, and water vapor; he was writing about what we
now call the greenhouse effect. We have understood this greenhouse
effect for a century and a half. Abraham Lincoln was President when
this was published. It is nothing new or controversial in real science,
as I think every single one of our major State universities would
attest, and it is starting to have a pretty pronounced effect.
NOAA just reported that the Earth passed what they call ``another
unfortunate milestone.'' Carbon dioxide concentrations passed 400 ppm
at the South Pole last month. That was a first in 4 million years. NOAA
also announced that the globally averaged temperature over land and
ocean surfaces for May 2016 was the highest for any May in the NOAA
global temperature record. This marks the 13th consecutive such month,
breaking its monthly global temperature record--the longest streak in
NOAA's 137 years of keeping records.
We understand what is going on. So why is Congress stuck, asleep at
the wheel? Why? Because since the Supreme Court's decision in Citizens
United, the big fossil fuel polluters and their network of front
groups--a well-documented crowd now in academic literature and in
journalism--have poured money and threats into our politics. Just one
group, the Koch brothers-backed front group Americans for Prosperity,
openly proclaimed that if Republicans support a carbon tax or climate
regulations, they would ``be at a severe disadvantage in the Republican
nomination process.'' It would mean their ``political peril.''
The threat is plain. It is funded by the very deep pockets and the
highly motivated schemes of the fossil fuel industry, enabled by
Citizens United, and much of it is largely hidden from public
disclosure. Candidates get it; it is the public that doesn't see what
is going on behind the scenes.
Every election since Citizens United has broken spending records, and
this year is on track to do it again. Super PACs, anonymous so-called
social welfare 501(c)(4) groups, and other outside groups have so far
spent nearly $400 million in this election, and we are still nearly 5
months from election day. Politico has reported that donations to super
PACs are expected to exceed $1 billion this election cycle. Gee, for $1
billion, what could they possibly want?
We know where this money will go. It will fund an onslaught of the
ugly, noxious, negative campaign ads that Americans hate. They hate the
negative messages smearing the ad's targets. But they also hate another
message. They hate the message that this smear was paid for by some
shadowy group that they know perfectly well has no role in their State
or in their life and that they usually have never heard of but has
suddenly commandeered their TV screen to deliver the smear attack. That
secondary payload, which has delivered negative ad after negative ad,
is piling up, and its message to the American viewer is clear: This has
gotten weird. This has gotten out of hand, and you don't count.
Not surprisingly, Americans are becoming more and more disillusioned
with our politics. According to a Bloomberg poll, 72 percent of
Americans report being fed up with politics and politicians, and 59
percent feel the ``political system is broken.'' According to a recent
Rasmussen poll, three-quarters of voters believe the wealthiest
individuals and companies have too much influence over elections, and 8
in 10 agree that wealthy special interest groups have too much power
and influence. They are not wrong. That Citizens United decision has
even helped make Americans feel by a ratio of 9 to 1 that an ordinary
American will not get a fair shot against a corporation in the U.S.
Supreme Court.
It is a dirty circle. The strength of America lies in its people.
Stoking distrust and contempt for our political system breeds cynicism,
and that cynicism gives special interests more influence in their age-
old battle to loot the public. That failure also jeopardizes the
exceptionalism that has made America an example for good throughout the
world--fat chance that we are an example for good on climate change
when the fossil fuel industry has done what it has with its campaign
spending.
It is a mess, and to clean it up a group of us have assembled a ``we
the people'' suite of legislation. The ``we the people'' legislation is
a collection of straightforward reforms designed to loosen the grip of
big money on our elections, reduce the influence that wealthy special
interests have over our government--often behind the scenes--and return
America's democracy to its true owners, the American people.
How do we do this? Well, first, we bring transparency back to our
elections with an updated DISCLOSE Act, a bill I have introduced in the
last three Congresses. DISCLOSE would require every organization
spending money in elections, including super PACs and tax-exempt
501(c)(4) groups, to promptly disclose donors who give $10,000 or more
during an election cycle and to get the spending information online
within 24 hours. It would prevent super PACs from acting as de facto
extensions of a candidate's campaign, and it would reform the Federal
Election Commission to break the partisan deadlock that cripples
enforcement of existing campaign finance laws.
Second, we undo the Court's dreadful Citizens United decision.
Citizens United was wrong in treating corporations as if they were
people. It was wrong that corporate money will not corrupt. It was
wrong not seeing that whatever special interests are allowed to do
politically, they can threaten and promise to do, and those threats and
promises are corrupting. Finally, it overlooked that a small class of
special interests can actually make a bundle buying influence.
The fossil fuel industry, for instance, even when it spends $750
million in one
[[Page S4403]]
election, is still making a bundle protecting the massive subsidies
that support fossil fuel in this country. According to the IMF, that
number is about $700 billion every year in effective subsidies.
So ``we the people'' includes Senator Udall's constitutional
amendment to give Congress the power to once again pass commonsense
measures regulating presently unlimited corporate cash in our
elections. Finally, ``we the people'' includes proposals championed by
Senators Bennet and Baldwin to stop the spinning, revolving door that
so often makes officials beholden to corporate special interests.
It was not long after Alexis de Tocqueville described our unique
American democracy and it was about the same time John Tyndall
described the basic science of the greenhouse effect that President
Lincoln reminded a war-weary nation of the point of all that
bloodshed--that ``government of the people, by the people, and for the
people shall not perish from the earth.''
Allowing special interests to secretly buy elections and influence
government officials gives away an American patrimony that was dearly
bought. Make no mistake, without Citizens United, and without the
maligned and dishonorable use of its weaponry by the fossil fuel
industry, we would have had by now a bipartisan solution to climate
change. A faction on the Court that unleashed that new political
weaponry, an industry that took shameful and remorseless advantage of
it, and a party that has willingly subordinated itself to that
influence to keep the money flowing all share the blame for where we
are today.
We need to clean this up. The polluters don't just pollute our
planet; they are polluting our very democracy.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Economic Growth
Mr. SULLIVAN. Mr. President, for months now I have been coming to the
floor to talk about an issue that I know the American people want us to
talk about, and that is the economy and the importance of growing our
economy. I am highlighting what unfortunately has been a very anemic
record of economic growth over the last 10 years, highlighting what is
called the gross domestic product for the United States. I have been
doing that because certainly the Obama administration doesn't want to
do that. When we look at these numbers, we know that these are some of
the weakest economic numbers, certainly in the last 7 years--some of
the weakest economic numbers in U.S. history. The media doesn't want to
talk about it, so I believe it is important that we come and have a
debate on the economy because the American people want us to talk about
this.
I want to remind my colleagues that the gross domestic product--what
we have here on this chart--is really a marker of the health of our
economy. It is a marker of progress, a marker of the American dream.
Right now we have a sick economy by any measure.
Last quarter the U.S. economy grew at 0.8 percent GDP growth--barely
grew.
To put that in perspective, what has made our country great year
after year, decade after decade, has been an economic growth rate of
about 3.7 percent, almost 4 percent.
If you look at this chart, it has many different administrations.
This red line is the 3-percent GDP marker, which is considered OK, not
great. Usually, most administrations are above that.
Year after year, decade after decade--Democratic administration,
Republican administration--what has made the country great is economic
growth. If you look at the Obama years right here, it never even hit 3
percent GDP growth. That is why they don't want to talk about it. When
the President does talk about it, he doesn't remind Americans that this
is the slowest, weakest recovery in over 70 years, but when he does
talk about it, he still points fingers at those who came before him.
After nearly 7\1/2\ years, two terms, this economy is his. He owns
it, and he should take responsibility for it.
As Michael Boskin, the well-respected Stanford economics professor,
put it: ``Mr. Obama will likely go down as having the worst economic-
growth record of any president since the trough of the Great Depression
in 1933.''
Whether the President owns up to it, there is no doubt--just look at
the charts. These are their numbers, by the way. These are the Obama
administration numbers. There is no doubt we have experienced a lost
decade of growth that is harming not only the economic security of our
country and the national security of our country but--most
importantly--American families who are experiencing this. The great
engine of our economic growth, driven by the American worker, the most
productive worker in world history, is now idle because we cannot grow
our economy.
We had more evidence of this last month with the abysmal May jobs
report. Again, nobody talked about it. The media didn't talk about it.
Certainly, the White House didn't talk about it, but we should be
talking about it, what happened in May. The report showed, in May,
employers throughout the entire United States added 38,000 jobs. That
is in an $18 trillion economy that employs 126 million Americans--
38,000 jobs is nothing and everybody knows it.
As a matter of fact, today, Fed Chairman Janet Yellen talked about
what a dismal report that was in May. In fact, that is the lowest
monthly gain since 2010 in terms of jobs, and 2016 has seen the worst
employment start since 2009, since the beginning of the Obama
administration.
All of this is very bad news for the country, the economy, American
families, and American workers. Every economist, including the Fed
Chairman today, every pundit, even politicians who understand this
issue, know this is a big problem. Yet the President and Members of his
administration refuse to level with the American people about what is
going on. You didn't hear anyone talking about the jobs report. In
fact, right now they are calling our economy the strongest in the
world. They are touting the fact that despite this economic jobs
report, the unemployment rate actually ticked down. It went down from
5.1 percent to 4.7 percent. They are kind of bragging about that. That
is normally good news. The unemployment rate going from 5.1 to 4.7
percent, they are talking that up.
What is going on? What is the real story behind these numbers?
Because the people who know these numbers know what is going on. I
thought I would try to explain a little bit about why this
administration is not leveling with the American people at all. First,
having the strongest economy in the world right now is nothing to brag
about. The President used to brag about how we were growing more than
Europe. That was last quarter. We are not growing more than Europe now.
The EU grew at about a 2-percent GDP growth last quarter. As I said, we
grew at about 0.8 percent, so even that comparison is not working.
An economist recently stated that bragging about having a strong
economy right now globally is ``like having the best-looking horse in
the glue factory.'' There is not a lot to brag about there.
Really, the only comparison that matters when the administration
tries a spin, ``Hey, we are doing better than Japan or better than
Brazil''--the only comparison that matters is this one: How are we
doing relative to American history? That is all that really matters,
not the spin of how we are doing relative to another country. This is
what matters. Again, by any measure, we have been performing very
poorly for the last 10 years.
Second, let's unpack the unemployment numbers. The 4.7-percent
unemployment rate sounds pretty good, but what the President knows and
what his administration knows but will not tell the American people, is
that rate from the jobs report last year had numbers behind it that
were very worrisome. If we only created 38,000 jobs, then how does the
unemployment rate go down from 5.1 percent to 4.7 percent?
This is how. The standard measure of unemployment in this country,
the unemployment rate, includes only people who are actively looking
for work. That is a term called the labor force participation rate. So
if the labor force participation rate goes down, then the unemployment
rate will also go down, even if we have a weak economy.
So what happened in May? Why did the unemployment rate tick down to
[[Page S4404]]
4.7 percent? That is normally good news. Well, we know it is not
because of robust job growth because there were only 38,000 jobs
created. Nobody thinks that is robust.
What happened in May--and the White House isn't talking about it--the
unemployment rate went down because almost 700,000 American workers
quit working, quit looking for a job. Think about that. In 1 month,
664,000 Americans--in 1 month, almost 700,000 Americans who had been
looking for work got discouraged. They said there is nothing out there.
This economy is so weak so I am quitting even looking for a job. That
is why the unemployment rate went down--not a strong economy, not
strong growth--discouraged American workers saying: I am done. I am not
even going to look anymore. Of course, that is nothing to celebrate,
700,000 Americans completely discouraged who said: I have had enough, I
am not even going to try. Think about the families. Think about the
workers who made that decision.
Unfortunately, this is one of the dismal, economic legacies of the
Obama years. Year after year, as exhibited by this chart, millions of
Americans have simply left the workforce. They just quit. This is a
chart of the labor force participation rate at the beginning of the
Obama administration and now.
Year after year, you can see more Americans say: I have had it. I
give up. The economy is too weak. I am quitting, quitting even looking.
Again, they are not counted in the unemployment rate.
The labor force participation rate is a rather ungainly term, but
what it really measures is the hope of the American worker and his or
her family. So we should call it the American worker hope index. Here
is the hope index for the American worker.
As you can see by the chart, it has been crashing under this
President with his economic policies year after year. Hope has been
declining for American workers ever since the President got into
office. In fact, it has not been this low since the economic malaise
years of President Jimmy Carter.
If you see the right hand here, 62 percent--the Carter malaise
years--Reagan, Clinton, Bush, and then the Obama administration years,
back almost on par with the Carter years. That is not a strong legacy.
The last time we had an American worker hope index this low was in
1978, the height of the Carter stagflation, when so many Americans were
discouraged from even trying to work. That is the legacy we have right
now.
The most recent job numbers that came out in May was the day the
President gave a speech to a bunch of high school students. To the
children, the high school kids, the President painted a rosy picture of
the economy. He told them the economy was strong and that he had cut
the unemployment rate in half. We know that is not a fully accurate
statement. If we had the same labor force participation rate today that
we had at the beginning of the Obama administration, our unemployment
rate would actually be 9.7 percent, almost unchanged from the beginning
of 2009 when it was 10.1 percent.
So the bottom line, the main reason--indeed, almost the sole reason
the official unemployment rate has been, ``cut in half,'' as the
President said, is because millions and millions of Americans have left
the workforce because the hope of the American worker has crashed, and
it has now reached the same low levels it did during the Carter years.
The President did also tell these high school students that to create
a better, stronger economy, we have to be honest about what our real
economic challenges are.
Here, I agree with him. Let's start with an honest assessment made
recently by former President Clinton. This is what he said about the
Obama economy: ``Millions and millions and millions and millions of
people look at the pretty picture of America [Obama] painted and they
cannot find themselves in it to save their lives.''
That was former Democratic President Bill Clinton talking about the
loss of hope over the last 8 years. President Clinton recently said:
But the problem is, 80 percent of the American people are
still living on what they were living on the day before the
[2008 financial] crash. And about half the American people,
after you adjust for inflation, are living on what they were
living on the last day I--
Meaning President Clinton--
was president 15 years ago. So that's what's the matter.
That is President Clinton. He is talking honestly about this economy.
That is what honesty looks like. Family incomes have declined during
the Obama years, wages have been stagnant, and the economic hope of the
American worker has crashed to levels not seen since Jimmy Carter.
I close with a few words for the American people as we get to the
final months of the Obama administration.
The President is going to make the claim--and some of his supporters
and maybe even Secretary Clinton are going to make the claim--that the
unemployment rate during the Obama years went from 10.1 percent to 4.7
percent. They are going to talk about this. They are going to make
people believe that somehow this is a great accomplishment.
While technically true, what the President is not going to do, what
Secretary Clinton is not going to do, is unpack the numbers to actually
tell the whole truth because that unemployment rate decline is due
primarily to the fact that so many American workers have simply quit
looking for work. That is the full truth.
So when you hear this great number--10.1 percent unemployment all the
way down to 4.7 percent--the real number is 9.7 percent. The real
number is in this index. The real number is that the American workers'
hope over the last 8 years has crashed.
So when the President and the White House continue to tell us that
everything is fine, that jobs are plentiful, that the unemployment rate
has been slashed in half, that our economy is strong relative to other
countries, it is very important to look at what they are really saying.
We shouldn't believe that. And the vast majority of Americans don't
believe it because they are hurting. They are hurting because this
economy is hurting. Millions of Americans want to work but can't find a
job. Millions of Americans have quit looking for a job. And, as the
President says, we need to recognize that fact and to be honest about
it. Only then can we do what is one of the most important jobs this
Senate can do, which is grow our economy again and create real job
opportunities for the millions of American workers who want to work but
have been so discouraged they have left the workforce.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Daines). Without objection, it is so
ordered.
UNANIMOUS CONSENT AGREEMENT--EXECUTIVE CALENDAR
Mr. McCONNELL. Mr. President, I ask unanimous consent that at a time
to be determined by the majority leader, in consultation with the
Democratic leader, the Senate proceed to executive session to consider
individually either of the following nominations: Calendar Nos. 357 and
358; that there be 30 minutes for debate only on each nomination,
equally divided in the usual form; that upon the use or yielding back
of time on the respective nominations, the Senate proceed to vote
without intervening action or debate on the nomination.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
____________________