[Congressional Record: May 26, 2011 (Senate)]
[Page S3367-S3372]

	[Senate Colloquy on Secret Law}

  Mr. WYDEN. Mr. President, I ask unanimous consent that I be permitted 
to engage in a colloquy between Senators Udall, Feinstein, and Merkley.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. WYDEN. Mr. President, I am going to talk for just a couple of 
minutes about the issue of secret law that Senator Udall and I, as we 
are both members of the Intelligence Committee, have been working on 
for quite some time. Then I am going to yield to our friend, the 
distinguished chairwoman of the Intelligence Committee, Senator 
Feinstein, for a colloquy.
  What this issue is all about is this: I believe there are two PATRIOT 
Acts in America. The first is the text of the law itself, and the 
second is the government's secret interpretation of what they believe 
the law means.
  As an example, several years ago Americans woke up to learn that the 
Bush administration had been secretly claiming for years that 
warrantless wiretapping was legal. This disclosure greatly undermined 
the public's trust in the Department of Justice and our national 
intelligence agencies, and it took Congress and the executive branch 
years to sort out the situation.
  I believe the American people will also be extremely surprised when 
they learn how the PATRIOT Act is secretly being interpreted, and I 
believe one consequence will be an erosion of public confidence that 
makes it more difficult for our critically important national 
intelligence agencies to function effectively. As someone who served on 
the Intelligence Committee for 10 years, sitting right next to Senator 
Feinstein, I don't want to see that happen.
  Let me yield now to Senator Udall. He will also have brief remarks, 
and any colleagues who want to speak, and then Senator Feinstein will 
lead us in the discussion of how we will be moving forward. So I yield 
to Senator Udall who has been an invaluable member on the Intelligence 
Committee. He and I have worked on this since the day he joined our 
committee, and I am so appreciative of his involvement.
  Mr. UDALL of Colorado. Mr. President, I thank the Senator from Oregon 
for his kind words. I also wish to echo his remarks about the 
leadership of the chairwoman of the Intelligence Committee and her 
focus on keeping our country safe and our citizens protected.
  I also wish to make the point that, as my colleague from Oregon, I 
also oppose reauthorization of the expiring provisions in the PATRIOT 
Act without significant reforms. I believe it is critical that the 
administration make public its interpretation of the PATRIOT Act so 
Members of Congress and the public are not kept in the dark.
  Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and 
Senator Udall for their comments. We did have a meeting last night. We 
did discuss this thoroughly. The decision was that we would enter into 
this colloquy, so I will begin it, if I may.
  These Senators and I, along with the junior Senator from Oregon, Mr. 
Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator 
from Rhode Island, Mr. Whitehouse met last night to discuss this 
amendment, the legal interpretation of the Foreign Intelligence 
Surveillance Act provisions and how these provisions are implemented.
  I very much appreciate the strong views Senator Wyden and Senator 
Udall have in this area, and I believe they are raising a serious and 
important point as to how exactly these authorities are carried out. I 
believe we are also all in agreement that these are important 
counterterrorism authorities and have contributed to the security of 
our Nation.
  Mr. WYDEN. Mr. President, I have enormous respect for my special 
friend from California, the distinguished chairwoman of the 
Intelligence Committee. I have literally sat next to her for more than 
a decade. We agree on virtually all of these issues, but this is an 
area where we have had a difference of opinion.
  I have said I wouldn't support a long-term reauthorization of the 
PATRIOT Act without significant reforms, particularly in this area. I 
am especially troubled by the fact that the U.S. Government's official 
interpretation of the PATRIOT Act is secret, and I believe a 
significant gap has developed now between what the public thinks the 
law says and what the government secretly claims it says. That is why I 
and my colleagues from Oregon and Colorado and New Mexico have proposed 
an amendment that would make these legal interpretations public.
  Mr. UDALL of Colorado. Mr. President, let me say once again, as does 
my colleague from Oregon, I oppose reauthorization of the existing 
provisions of the PATRIOT Act that we have been debating on the Senate 
floor without significant reforms. I also have to say I believe it is 
critical that the administration make public its interpretation of the 
PATRIOT Act so Members of Congress and our public are not kept in the 
dark. That is the important work we have in front of us, and we have a 
real opportunity to accomplish those goals.
  Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that 
these are important issues and that the Intelligence Committee, which 
is charged with carrying out oversight over the 16 various intelligence 
agencies of what is called the intelligence community, should be 
carried out forthrightly. I also believe the place to do it is in the 
Intelligence Committee itself. I have said to these distinguished 
Senators that it would be my intention to call together a hearing as 
soon as we come back from the Memorial Day break with the intelligence 
community agencies, the senior policymakers, and the Department of 
Justice to make sure the committee is comfortable with the FISA 
programs and to make changes if changes are needed. We will do that.
  So it would be my intention to have these hearings completed before 
the committee considers the fiscal year 2012 intelligence authorization 
bill so that any amendments to FISA can be considered at that time.
  The fact is, we do not usually have amendments to the intelligence 
authorization bill, but I believe the majority leader will do his best 
to secure a future commitment if such is needed for a vote on any 
amendment. I have not agreed to support any amendment because at this 
stage it is hypothetical, and we need to look very deeply into what 
these Senators have said and pointed out last night with specificity 
and get the response to it from the intelligence committee, have both 
sides hear it, and then make a decision that is based not only on civil 
liberties but also on the necessity to keep our country safe. I believe 
we can do that.
  I am very appreciative of their agreement to enter this colloquy.
  Mr. WYDEN. Mr. President, I thank the distinguished chairwoman of the 
Intelligence Committee for proposing this course of action for 
addressing the secret law issue. Obviously, colleagues would like more 
information on that, and they are going to be in a position to know 
that the Intelligence Committee is going to be examining it closely. I 
will just describe the next steps from there.
  Senator Udall and I have discussed this issue with Senator Reid. 
Senator Reid indicated to the chairwoman and myself and Senator Udall 
that we would have an opportunity through these hearings--and, of 
course, any amendments to the bill would be discussed on the 
intelligence authorization legislation, which is a matter that 
obviously has to be classified--but if we were not satisfied, if we 
were not satisfied through that process, we would have the ability to 
offer an amendment such as our original one on the Senate floor.
  Of course, the chairwoman would still retain full rights to oppose 
it, but we would make sure if this issue of secret law wasn't fixed and 
there wasn't an improved process to make more transparent and more open 
the interpretation of the law--not what are called sources and methods 
which are so important to protect our people--we would have an 
opportunity, if it wasn't corrected in the intelligence community, to 
come to the floor.

[[Page S3370]]

  Senator Reid has just indicated to all of us that he would focus on 
giving us a vote if we believed it was needed on another bill--not the 
intelligence authorization--before September 30. So there is a plan to 
actually get this fixed, and that is what is key.

  At this time I yield to the Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, as we begin to end this 
important colloquy, I wish to acknowledge the leadership of Senator 
Wyden on this important matter. I also wish to acknowledge the 
involvement of the Senator from New Mexico, who is presiding at this 
moment in time, and the Senator from Oregon, Mr. Merkley, and the 
Senator from Rhode Island, Mr. Whitehouse, who has been very involved 
in bringing this case to the attention of all of us. I wish to also 
thank my good friend from California, the chairwoman of the committee. 
She has shown a great willingness to work with everybody and to listen.
  I have to say I expect that once the committee examines this issue 
more closely, I think many more of our colleagues will want to join us 
in reforming the law in this area. I think this is important. I do 
think we can find the right balance between protecting civil liberties 
and protecting the health and welfare of the American citizens.
  Mr. WYDEN. Mr. President, let me just make one last comment. I also 
wish to express my appreciation to Senator Merkley, who has been an 
extraordinarily outspoken advocate of our civil liberties and our 
privacy in striking a good balance between fighting terror and 
protecting the rights of our people, and I have so appreciated his 
leadership on this issue.
  Let me sum up. First, I am very grateful to our chairwoman and 
pleased with this agreement. The chairwoman has indicated she believes 
those of us who want to reform secret law have raised a serious and 
important issue. Those are her words. We are grateful for that because 
we obviously believe very strongly about it. The chairwoman has said we 
will hold hearings promptly to examine the secret law issue, give 
serious consideration to looking at reforms in the fiscal year 2012 
intelligence authorization bill, and then, per our conversations with 
the majority leader, if Senator Udall and I believed it had not been 
corrected on the intelligence authorization bill, we would have the 
right to offer--and certainly the chairwoman could oppose it--an 
amendment on the floor of the Senate on an unrelated bill. Senator 
Reid, to his great credit, in an effort to try to resolve this and move 
it along, said to the three of us that he would be working to do that.
  Again, our thanks to the chairwoman and all of my colleagues on the 
floor, including Senator Merkley, who is not a member of the committee 
and knows an incredible amount about it and certainly showed that last 
night in our discussions and was very helpful. I wish to yield to him.
  So with the cooperation the chairwoman has shown all of us who are 
trying to change this and the efforts of Senator Reid to make sure if 
we didn't work it out we could come back to the floor again, I withdraw 
the Wyden-Udall amendment for the time being. It ought to be clear to 
everybody in the Senate that we are going to continue to prosecute the 
cause of making more open and accountable the way the government 
interprets this law in making sure that the American people have the 
confidence that the way it is being interpreted is in line with the 
text of the legislation.
  I withdraw at this time the Wyden-Udall amendment, and I yield the 
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I am deeply appreciative of the dialogue 
that has just taken place. It was William Pitt in England who commented 
that the wind and the rain can enter my house, but the King cannot.
  It captured the spirit and understanding of the balance between 
personal privacy, personal freedoms, and issues of the Crown regarding 
maintenance of security. It was this foundation that came in for our 
fourth amendment of our Constitution that lays out clear standards for 
the protection of privacy and freedoms.
  So as we have wrestled with the standard set out in the PATRIOT Act, 
a standard that says the government may have access to records that are 
relevant to an investigation--now, that term is, on its face, quite 
broad and expansive, quite a low standard, if you will. But what 
happens when it is interpreted out of the sight of this Chamber, out of 
the sight of the American people? That is the issue my colleague has 
raised, and it is a very important issue.
  I applaud the chair of the Intelligence Committee for laying out a 
process whereby we all can wrestle with this issue in an appropriate 
venue and have a path for amendments in the committee or possibly here 
on the floor of the Senate because I do think it is our constitutional 
responsibility to make sure the fourth amendment of the Constitution is 
protected, the privacy and freedoms of citizens are protected.
  I say thank you to the Senator from Colorado; my senior colleague, 
who has led this effort from Oregon; my colleague from New Mexico, who 
is the Acting President pro tempore; and the chairwoman from 
  Mrs. FEINSTEIN. Mr. President, I thank my colleagues very much. I 
believe this concludes our colloquy.
  I thank the Acting President pro tempore, and we yield the floor.