Sen. Rand Paul to Offer Amendment to House-Passed FISA Bill to Protect Americans’ Privacy, Reform System
‘What Happened to General Flynn and President Trump Should Never Be Allowed to Happen Again’ ~ Rand Paul
WASHINGTON, D.C. – Today, U.S. Senator Rand Paul (R-KY) announced he will introduce an amendment to H.R. 6172, the USA FREEDOM Reauthorization Act of 2020, to protect every American’s privacy, ensure due process, and reassert the Fourth Amendment.
“It flies in the face of our Constitution that a secret court can authorize invading an innocent American’s privacy. Recent months have once again made all too clear how such a system leads to abuse. It’s time for Congress to stop paying lip service to reform and pass real safeguards that respect Americans’ rights. What happened to General Flynn and President Trump should never be allowed to happen again,” said Sen. Paul.
Senator Paul’s amendment would still allow the Foreign Intelligence Surveillance Court (FISC) to order surveillance of non-Americans and our enemies, but it would require the government to obtain a warrant from a traditional federal court to surveil an American.
The amendment would also prohibit the federal government from introducing into evidence any information gained from warrantless surveillance on an American, while guaranteeing an American’s ability to use such evidence in their defense.
See Senator Paul’s USA FREEDOM Reauthorization Act of 2020 PDF below Transcript.
Senator from Kentucky.
The Patriot Act was begotten of the most unpatriotic of ideas, that Liberty can be exchanged for security. The history of the Patriot Act shows that the exchange is a poor one. As our liberty wanes and wastes away, we find that the promises of security were an illusion.
The history of the Patriot Act is really a history of how power corrupts and how bias and malfeasance grow when power is unchecked. The Patriot Act allows a secret court FISA to Grant generalize warrants to collect personal data from millions of Americans. The spies who won the surveillance programs then lied for years and years to us. One of the most notorious of these liars was James Clapper. When cross-examined, under oath, by Senator Wyden, James Clapper denied that the government was collecting data on millions of Americans. A month later the whistleblower, Edward Snowden, revealed that Clapper had lied.
Snowden revealed that Clapper and others were using the Patriot Act to spy on virtually every American. Snowden revealed that the secret FISA Court was allowing a single court order to command the collection of millions of Americans personal phone data. Most members of Congress had no idea that this was going on. In fact, one of the authors of the Patriot Act publicly expressed his shocked that such a massive surveillance of Americans was occurring with no notification of Congress. Clapper, and others though, said that’s not true. They justified their actions by saying, ‘We’ve been briefing the elite eight congressman.
Who are the elite eight and who made them elite? The elite eight are the majority and minority leaders of the House and the Senate and the majority to minority leader of the Intelligence Committee in the House and the Senate, eight people. When they were quizzed about this program most of them said they couldn’t remember ever being briefed on it. But the real constitutional question is, have we not changed and subverted the Constitution to make eight people more important than the rest of us. So this is a program where they were collecting the data on everybody’s phone calls, everybody in America, you would think there would have to be a debate and approval by Congress, but they only take eight people and those are people seem to be confused that they had approved the program as well.
The idea that a single court order can allow the collection of personal data from millions of people is antithetical to the intentions of the Fourth Amendment. The Fourth Amendment dictates that the government must identify an individual on the items and the location to be searched. The 4th amendment was intended to forbid general warrants or writs of assistance that historically monarchs had used indiscriminately to collect vast amounts of other belongings or possessions of individuals. The fourth amendment was written to prevent that from happening. The Patriot Act essentially allows for generalized warrants and the collection of personal data. The Fourth Amendment also dictates that a search can only occur when you prove to a judge, when a government proves to a judge, that there is probable cause that a crime has been committed. However under the Patriot Act they lower the standard. So there’s the Constitutional standard the Fourth Amendment. But under the Patriot Act the standard now becomes if it is relevant to an investigation. So that’s a much looser, broader standard and it’s not a constitutional standard.
So the question is through the special secret courts and through the Patriot Act, can we allow things that the Constitution actually prevents. What we’ve done is eroded protections for Americans. And so some of us have said, the Constitution should still apply to Americans. If you want to look at the data of foreigners or spy on foreign countries or potential terrorist, by all means do it. But Americans still should be protected by the Constitution. The Patriot Act doesn’t provide this protection and allows anybody to be investigated if the government can prove it’s relevant to an investigation. That standard is so broad that can mean almost anything. It’s hard to imagine something that could not be argued to be relevant to an investigation.
To those of us that prize the rights guaranteed in the Bill of Rights, the Patriot Act is a violation of our most precious rights. The Patriot Act in the end is not patriotic. The Patriot Act makes an unholy and unconstitutional exchange of liberty for a false sense of security and I, for one, will oppose it’s reauthorization.
Today we’re also here, though, to discuss the FISA court that interacts and uses some of these extra powers, these extra Constitutional powers. It has been revealed over the last few years that the FISA Court was manipulated lied to and ultimately condoned the investigation of a political campaign. I believe that the authors of the FISA Court who intended to restrain unconstitutional searches would be appalled at what the FISA Court has become. they would be appalled that the secret court intended to be used to investigate foreign spies and terrorists, was turned into a powerful and invasive force to infiltrate and disrupt the political process. It should not matter whether you are democrat, a republican or libertarian, we should all be appalled at this abuse of power. The question is how do I fix it?
To my mind there are two approaches. Number one we could try to make the FISA Court less bad by adding procedural hurdles to make it more like a Constitutional Court, or number two, admit that the FISA court cannot be made Constitutional. Admit that FISA uses a less than constitutional standard, when it allows search has to be performed would you not meet the Fourth Amendment. The Fourth Amendment requires probable cause that you’ve either committed a crime or are committing a crime. The FISA Court only says we have to say that there is probable cause, the government must prove or assert, that there’s probable cause that you’re connected to a foreign government. But as we’ve seen, the standards were so lax that when they went to the Trump campaign and said that a certain person was related to a foreign government it turns out it was untrue, and they didn’t present facts to the court that actually argued that he wasn’t an agent of the foreign government and that person had no one to argue for him. The deficiency of the FISA court and why it’s not constitutional is you don’t get a lawyer. You actually don’t even get told that you’ve been accused of a crime. The only reason we know that President Trump’s campaign got caught up in this is he won. Because he won and now has the power to open and put sunlight on this, we are now able to see this. If this had been an ordinary American caught up in this, you would never be told. You would never get a lawyer and you have been brought before this investigated body and allowed to search vast amounts of your private information without probable cause. That is not constitutional and I don’t think we can make it constitutional. I think we should admit that we can’t constitutionally allow Americans to be subjected to a search that doesn’t call the 4th Amendment.
I believe there’s no fixing the FISA court to make it constitutional for Americans. I believe the only solution is to exempt Americans from the FISA Court. If government wants to investigate a political campaign, which should be a very rare and a very unusual circumstance to have the government involved in a political campaign, government should request a Fourth Amendment search from an Article 3 Constitutional Court. Now some will say it’s so hard, we’ll never get it. Guess what even constitutional warrant are mostly granted. The vast majority of them are granted., but guess what, a judge will be a little reticent to get involved in the political process because they know how he did it is and how important it is to our Republic, but that’s the way you should invest in a campaign if you’re going to.
Opponents of doing the tried-and-trusted Constitutional why will argue that it takes too long, it’s too hard. But guess what, the Constitution was meant to be an onerous standard, the Constitution was meant to be rigorous. Our founding fathers understood that justice cannot be achieved and secret courts that don’t notify the accused nor let the accused have legal representation. You can’t find justice where there is no adversarial process, where you don’t get a lawyer. I think it’s high time we quit letting fear over run our Constitutional Duty. So today offering Amendment the restores the Constitution for all Americans and forbids the secret FISA Court from ever again meddling in our political process. Mr. President I call up my Amendment 1586 and asked that it be reported by number.
The clerk will report.