WASHINGTON, D.C. - Today, U.S. Senator Martin Heinrich (D-N.M.), a member of the Senate Select Committee on Intelligence and the Armed Services Committee delivered the keynote address at the Albuquerque Press Women and League of Women Voters luncheon where he discussed balancing civil liberties with national security in a digital age.
Senator Heinrich is an original co-sponsor of the USA FREEDOM Act, a bill he co-sponsored that was signed into law in June to end the National Security Agency's (NSA) bulk collection program that has allowed the government to collect billions of Americans' private records while suspecting them of no wrongdoing. He also strongly supported the release of the Senate Select Committee on Intelligence's report on the CIA's detention and interrogation program and supports a series of reforms to prevent the future use of torture.
Below are his remarks as prepared for delivery:
Good afternoon, and thank you to the Albuquerque Press Women and the League of Women Voters for all of the work you do to promote free speech, journalism, and political engagement here in New Mexico.
Thank you to Karen Wentworth, the President of Albuquerque Press Women, for inviting me to speak today, and please accept my gratitude to all of you who made this lunch possible.
I was asked to discuss with you today the issue of privacy.
As a member of the Senate Intelligence Committee, I've spent a lot of time working and thinking about the important decisions we as a nation must make in order to balance our constitutional liberties with the evolving needs of our national security--especially in the digital information age.
This is not a new issue for America.
After harassment of colonists from the British government, our founders included the Fourth Amendment in our Bill of Rights to ensure that citizens were "secure in their persons, houses, papers, and effects against unreasonable searches or seizures."
Our founders were brilliant in their ability to craft constitutional language that has not grown stale with the passing of over two centuries.
And one could easily argue that the word "effects" in the Fourth Amendment would apply to your iPhone or your electronic bank records.
I take seriously Ben Franklin's admonition that a society that trades essential liberties for short-term security risks losing both.
That's why I have advocated for reforms to our intelligence gathering programs, as I believe it ¬is possible to keep Americans safe while protecting our treasured constitutional rights and liberties.
Because of the Fourth Amendment, law enforcement agencies have to follow a very specific procedure when filing for search warrants. They must show probable cause before they can search the records of suspects.
The advent of modern communications technology has made the policy issues surrounding searches and seizures substantially more complicated than in the days of a law enforcement agent searching a suspect's apartment for paper records.
And our Intelligence Community has not always felt that they needed to play by the same rules as other law enforcement agencies.
In 1966, Supreme Court Justice William O. Douglas lamented when reflecting on our nation's growing intelligence gathering activities:
"We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government."
After Watergate, in the wake of serious abuses to Americans' civil liberties--from the CIA spying on Americans throughout the 1960s and 70s to the Nixon administration's wiretapping of political enemies--the House and Senate Intelligence Committees were established to oversee and reform our intelligence agencies.
Congress passed the Foreign Intelligence Surveillance Act of 1978--or FISA--to rein in those abuses and realign our efforts with the Fourth Amendment.
In the post-9/11 world--as we contend with the very real threats of cyber-attacks and non-state terror cells--finding the right balance between protecting our safety and protecting privacy became a flashpoint once again.
The PATRIOT Act--a law passed with little review or debate by lawmakers worried about another major attack and still displaced from their offices by an Anthrax attack--gave intelligence agencies new opportunities for abuse.
That's the landscape that I stepped into when I started as a member of the Senate Select Committee on Intelligence in the beginning of 2013.
When I joined the Committee, our national debate was about to be renewed regarding the appropriate reach of our intelligence activities.
I thought I knew how far the post-9/11 intelligence gathering programs had gone.
I was wrong.
Following reports in 2005 that the Bush Administration interpreted Section 215 of the PATRIOT Act to allow the unwarranted monitoring of the call history of millions of Americans, Congress reformed government data collection in 2008.
But those reforms proved inadequate and resulted in activities that few in Congress--even Congressman Jim Sensenbrenner, the author of the PATRIOT Act--fully understood.
Most people seem to believe that every member of Congress is briefed extensively and knows all the details before they take votes on legislation like an extension of PATRIOT Act provisions.
Let me be clear. That simply is not the case.
For example, when I was in the House of Representatives, I received little more than superficial briefings on our nation's intelligence activities.
But after joining the Senate Intelligence Committee, I was informed at a more detailed and more accurate level regarding what's going on every week in most of the conflict areas around the world.
I hear about what may have happened in Afghanistan, or Syria, or Yemen.
The Committee also has in-depth discussions about how the Intelligence Community does its work to gather this information.
When I joined the Committee, I had committee staff set up detailed and specific briefings for me to get up to speed on the Intelligence Community's global activities.
I called it Intelligence 101.
I met directly and at length with many leading experts and officials to make sure I became well-versed in the programs and agencies I was tasked with overseeing.
I gained a sincere appreciation for our nation's intelligence professionals. They are effective, dedicated, patriotic men and women who make real sacrifices to protect our nation.
But my oversight responsibilities require me to ensure that intelligence agencies are operating within the boundaries of the law.
As a member of the Committee, I am part of a very small group with insight into these collection activities.
I have a special responsibility to think carefully about whether our intelligence agencies are acting in a way that reflects our national principles and both the letter and spirit of our Constitution.
Just six months after my first intelligence briefing, National Security Administration contractor Edward Snowden leaked thousands of classified documents and revealed that the NSA's bulk collection of personal data was much more expansive than publicly known, and that the NSA was collecting and holding the records of many innocent Americans.
What became obvious to me was that because of our continued lack of knowledge of Al-Qa'ida and other terrorist organizations, some within our government believed we needed to collect every scrap of available information available in order to ensure that--should we ever need it--we could query this information to possibly track down threats.
In doing so, the government collected billions of call data records and email messages linked to millions of completely innocent Americans.
There were several programs in particular that I believed required substantial reform.
- The NSA's dragnet bulk collection of cellphone metadata--or call records--under Section 215 of the PATRIOT Act;
- Secret court decisions in the Foreign Intelligence Surveillance Court that allowed intelligence agencies to determine collection warrants without the normal transparency or accountability of normal search warrants;
- And how the government uses authorities under Section 702 of FISA to collect the contents of email communications, incidentally scooping up records from Americans in the process that can be the subject of what we termed "backdoor searches."
This means that if your emails are either a few degrees of separation from a suspect or if you are sending emails to contacts out of the country, your emails can be swept up.
And based on recent Justice Department decisions and testimony I've heard on the Intelligence Committee from administration officials, our government believes it has the authority to search these records "through this back door" at will.
Allowing these records to be used for "backdoor searches" represents a serious overreach and a misuse of records.
FISA is a broad and powerful tool.
It was designed to be used against foreign terror subjects.
It was never meant as a tool to target American citizens and strip them of the constitutional protections inherent in the warrant process.
As the debate over our intelligence agencies' surveillance programs increasingly moved into the public sphere, my Intelligence Committee colleagues Senators Ron Wyden, Mark Udall, and I pressed the NSA and the Director of National Intelligence for clear examples in which information collected under Section 215 was uniquely responsible for the capture of a terrorist, or the thwarting of a terrorist plot.
They couldn't provide one single example.
And they couldn't make a case for why the data collected by the government needed to be held for such a long period of time.
These programs damaged our nation's reputation, had serious economic costs for American technology companies with overseas operations, and clearly infringed upon some of our most fundamental civil rights and American values.
Most of us live our daily lives on our phones and on our computers with the reasonable assumption that our transactions, emails, and phone records are protected from unwarranted government monitoring.
And most of us--I'd say particularly those of us here in New Mexico who value our liberties, and many of you who are politically active or who are journalists--don't like the idea of our government scooping up and searching through our private information without a warrant and without probable cause.
More importantly, the Fourth Amendment doesn't allow our intelligence agencies to do that.
In December of 2013, a review panel set up by President Obama agreed with this assessment and recommended that the government end its bulk collection of telephone metadata.
The President made his first proposal to end the bulk collection program in March of 2014.
But the ultimate solution was to change the law.
I am very proud of the long overdue national conversation and the constructive debate in the Senate that eventually resulted in the passage of the USA FREEDOM Act this past June, when Section 215 of the PATRIOT was set to expire.
Over the course of the last two years, Congress debated the merits of various legislative proposals to reform our intelligence gathering programs.
I was pleased that we ultimately passed the USA FREEDOM Act, a major reform that many predicted would be impossible to pass with Mitch McConnell as our Majority Leader in the Senate.
This new law put a definitive end to the NSA's Section 215 bulk collection program and also addressed the problem of "secret law" by establishing a process for the public release of significant decisions by the Foreign Intelligence Surveillance Court and by creating opportunities for review of the court's decisions.
The USA FREEDOM Act also increased transparency of surveillance activities that affect Americans by requiring increased government reporting and providing Internet and telecommunications companies the option to publicly report information about the national security-related requests they receive.
These are all significant reforms and they were major victories for Americans who value their independence and cherish their individual liberties as guaranteed by our Constitution.
But the battle is far from over.
The government is still collecting, holding, and sometimes searching the records of American citizens--through Section 702 of FISA.
Remember, these records are from Americans citizens--collected incidentally while targeting foreign terror suspects. And the government is abusing these records by searching through them without a warrant.
This must be stopped.
Section 702 expires at the end of 2017. We must act by then, but I think we should act sooner rather than later.
And as Congress works through important legislation to improve our nation's defenses against cyber-attacks like the recent hack of federal employee's records at the Office of Personnel Management and hacks on private companies and banks, we need to be sure appropriate restraints and proper protections of Americans' constitutional liberties are put in place.
New Mexicans can count on me to continue to work with my colleagues, Republican and Democrat, who understand the potential abuse of intelligence collection efforts to redouble our efforts to shift the Intelligence Community's collection paradigm back to one that is focused on real threats, and one that is fully respectful of the civil liberties and privacy of innocent Americans.
Before I get to your questions, I want to also just briefly talk about something else that is on all our minds.
New Mexico is at a crossroads. We must fundamentally change the trajectory of our state.
I don't have to tell you that our economic picture remains stark.
America is the richest nation on Earth. Yet too many families in New Mexico can't escape multigenerational poverty.
I believe that everyone willing to work hard deserves a fair shot at success in this country. That is at the heart of the American dream. That is why my number one priority in the Senate is to level the playing field for hard-working New Mexico families.
I remain committed to the idea of investing a sustainable portion of our state's $15 billion permanent fund in early childhood education.
To attract business to New Mexico, we must have a well-educated and well-trained workforce.
That begins with early childhood education.
We need to look for opportunities to expand the private sector in the state, and we must give more than lip service to diversifying our economy.
At the same time, we must vigorously defend the high quality jobs at our labs and bases.
We must work together to develop a cohesive and collaborative vision of what we want our state--and our country--to be.
I am currently working on legislation that seeks to lift families out of poverty through two-generation programs that holistically target both parents and children.
I know that all the potential we could ever ask for sits in homes, churches, and classrooms across New Mexico. By helping families overcome poverty and pursue their dreams together, we can make the Land of Enchantment a land of opportunity for all of us.
Thank you again for inviting me to speak, and I welcome your questions.