Congressional Record: December 21, 2005 (Senate)
Page S14275-S14281
EXTENSION OF THE USA PATRIOT ACT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to a bill at the desk relating to the extension of the PATRIOT
Act which the clerk will report by title.
The legislative clerk read as follows:
A bill (S. 2167) to amend the USA PATRIOT Act, and for
other purposes.
The Senate proceeded to consider the bill.
Mr. LEAHY. Mr. President, those of us working constructively to
extend the USA PATRIOT Act have repeatedly offered to enter into a
short-term extension while we work out the differences and improve this
reauthorization legislation. The extension we are passing for 6 months
is a commonsense solution that allows us to take a few more weeks to
get this right for all Americans.
A majority of Senators--Republicans, Democrats, those Senators who
voted for cloture, those who voted against cloture on the conference
report that failed to pass the Senate--have joined on a letter urging
the Republican leader to act on this commonsense offer by calling up a
short-term extension bill.
As soon as it became apparent that the conference report filed by the
Republican leadership would be unacceptable to the Senate, I joined on
Thursday, December 8, in urging a 3-month extension to work out a
better bill. On the first day the Senate was in session, Monday,
December 12, Senator Sununu and I introduced such a bill, S. 2082. We
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sent out a Dear Colleague letter to other Senators on December 13 and
that bipartisan bill now has 47 cosponsors.
We offered this solution before the vote on the Senate floor last
Friday. Contrary to the false claims and misrepresentations by some,
there is no effort to do away with the PATRIOT Act. That is just not
true. Along with others here in the Senate, I am seeking to mend and
extend the PATRIOT Act, not to end it. There is no reason why the
American people cannot have a PATRIOT Act that is both effective and
that adequately protects their rights and their privacy.
Republican and Democratic Senators joined together last week to say
we can do better to protect Americans' liberties while ensuring our
national security is as strong as it can be.
Every single Senator--Republican and Democratic--voted in July to
mend and extend the PATRIOT Act. I have joined with Senators of both
parties in an effort to enact a short-term extension so that we can
keep working to improve the bill. This is standard operating procedure
in the Congress where we pass extensions in the nature of continuing
resolutions regularly. The Sununu-Leahy bill to provide a 6-month
extension, S. 2167, accomplishes this purpose. I thank the majority
leader and Democratic leader for their leadership in passing this
measure.
A clear majority of the Senate, Republican and Democrats, have come
together and requested a short-term extension. These are Senators who
voted for cloture and Senators who voted against cloture in an effort
to improve the long-term extension of the PATRIOT Act. These are
Republicans and Democrats.
No Democratic Senator opposes extending the PATRIOT Act. All of the
52 Senators who signed the letter to the majority leader urged its
extension.
Our Nation is a democracy, founded on the principles of balanced
government. We need to restore checks and balances in this country to
protect us all and all that we hold dear. Our Congress and our courts
provide checks on the abuse of executive authority and should protect
our liberties.
We need to write the law so that Congress has provided its check in
the law and so that courts can play their role, as well. All Americans
need to take notice and need to demand that their liberties be
maintained. We can do better and must do better for the American
people.
Just this week, we celebrated the 214th anniversary of the passage of
the Bill of Rights, the first 10 amendments to the Constitution of the
United States. These amendments ensure some of our most vital freedoms,
including the freedom of speech, religion and press in the first
amendment. Within these amendments is also the right ``to be secure in
our persons, houses, papers, and effects, against unreasonable searches
and seizures.'' The Bill of Rights made clear not only the rights of
the American people, but also the limitations on the power of
government.
Just as we cannot allow ourselves to be lulled into a sense of false
security when it comes to our national security, we cannot allow
ourselves to be lulled into a blind trust regarding our freedoms and
rights. We must remain vigilant on both counts or we stand to lose much
that we hold dear.
In arguing for reauthorization of the USA PATRIOT Act, Attorney
General Alberto Gonzales sought to assure us that ``concerns raised
about the act's impact on civil liberties, while sincere, were
unfounded.'' I am not reassured, however.
We need only pick up a morning newspaper to see how the overreaching
of the Bush administration plagues our efforts to uphold democracy at
home and throughout the world. We have seen secret arrests and secret
hearings of hundreds of people for the first time in U.S. history; the
abuse of detainees in U.S. custody; detentions without charges and
denial of access to counsel; and the misapplication of the material
witness statute as a sort of general preventive detention law. Such
abuses harm our national security as well as our civil liberties
because they serve as recruiting tools for terrorists, intimidate
American communities from cooperating with law enforcement, and, by
misusing limited antiterrorism resources, make it more likely that real
terrorists will escape detection.
We have learned that the Pentagon maintains a secret database
containing information on a wide cross-section of ordinary Americans.
It keeps track of people like those in Vermont who planned peaceful
protests of military recruiters, including one organized by Veterans
for Peace. It monitored the activities of an antiwar group that met at
the Quaker Meeting House in Lake Worth, FL, a year ago to plan a
protest against military recruiting at local high schools.
Similarly, the FBI also engages in monitoring other ordinary, law-
abiding citizens. Records show that the FBI kept information on
Greenpeace, the American-Arab Anti-Discrimination Committee, and on
students and peace activists who attended a conference at Stanford
University in 2002. In a similar story, a student at the University of
Massachusetts/Dartmouth reportedly was visited by Federal agents in
October, after he requested a copy of Mao Tse-Tung's tome on Communism
called, ``The Little Red Book'' through the University's interlibrary
loan program. If the FBI is investigating what book a college senior is
borrowing, what is it that they are not investigating that they should
be?
The New York Times reports that after September 11, 2001, when former
Attorney General John Ashcroft loosened restrictions on the FBI to
permit it to monitor Web sites, mosques, and other public entities,
``the FBI has used that authority to investigate not only groups with
suspected ties to foreign terrorists, but also protest groups suspected
of having links to violent or disruptive activities.'' For example,
recently disclosed agency records show that FBI counterterrorism agents
have conducted surveillance and intelligence-gathering operations on
groups concerning the environment, animal cruelty, and poverty relief.
Now we are learning that President Bush has, for more than 4 years,
been secretly authorizing warrantless surveillance of Americans inside
the United States. In fact, he acknowledges issuing secret Presidential
orders to authorize such warrantless surveillance more than 30 times
since September 11, 2001.
The U.S. Supreme Court has consistently held for nearly 40 years that
the monitoring and recording of private conversations constitutes a
``search and seizure'' within the meaning of the fourth amendment,
extending as far back as the 1967 case, Katz v. United States. It was
because of concerns over unconstitutional surveillance of Americans in
the 1960s and 1970s that Congress enacted the Foreign Intelligence
Surveillance Act in 1978 to provide a legal mechanism for the
Government to engage in searches of Americans in connection with
intelligence gathering. Unless pursuant to a criminal search warrant
issued by a judge on a showing of probable cause, FISA warrants are the
exclusive means by which electronic surveillance and the interception
of electronic communications may be undertaken pursuant to the rule of
law.
The Foreign Intelligence Surveillance Act has been amended over time,
and it has been adjusted several times since 9/11. Indeed, much of the
PATRIOT Act includes FISA amendments. The law has been further amended
since the PATRIOT Act, as well.
Congress allows the FISA Court to operate in secret and authorizes
the Government to begin immediate surveillance in an emergency
situation, so long as it seeks a warrant from the FISA Court within 72
hours. In addition, Congress has provided that following a declaration
of war, the President may authorize electronic surveillance without a
court order for a period not to exceed 15 days.
There has never been a leak reported out of the FISA Court.
Furthermore, it has never been alleged that FISA's emergency procedures
are inadequate or that FISA ties the hands of law enforcement. If the
Bush administration believed that FISA was inadequate, it should have
alerted Congress to these flaws. It did not. Instead, it worked with me
and with others in the days following 9/11 to amend FISA. I chaired the
Senate Judiciary Committee at that time, apparently the same time that
the Bush administration began surveillance outside FISA. I was not
informed of the President's secret
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eavesdropping program while I chaired the Judiciary Committee in 2001
and 2002. I read about it for the first time in the press last week.
Spying on Americans without safeguards to protect against the abuse of
government power is unnecessary, and it is wrong.
Over the last week, we have learned of long-term, widespread
eavesdropping on Americans by the Bush administration without
compliance to the law, without court oversight, and without
congressional authorization. Compounding that already troubling
discovery were new, disturbing reports that the FBI has been monitoring
U.S. advocacy groups working on behalf of the environment and civil
rights issues, Quaker meetings and students checking out books to write
school papers. This is all too reminiscent of the dark days when a
Republican President compiled ``enemies lists'' and eavesdropped on
political opponents and broke into doctors' offices and used the vast
power of the executive branch to violate the constitutional rights of
Americans.
I was elected to the Senate in the aftermath of Watergate and the
White House plumbers and the secret wars that led to the impeachment
articles being considered against President Nixon. The Foreign
Intelligence Surveillance Act was passed in 1978 as part of the reform
and reaction to those abuses. As I have noted, this law has been
extensively updated in accordance with the Bush administration's
requests in the aftermath of 9/11 and has been modified further in the
last 4 years with respect to so-called lone wolf terrorists. Neither in
the first year of his Presidency or in the aftermath of 9/11 or in the
4 years since enactment of the PATRIOT Act has President Bush come to
Congress and asked us for authority to engage in the kind of extensive
surveillance on Americans by the National Security Agency that The New
York Times reported and the President has now confirmed that he
secretly ordered and has reaffirmed more than 30 times.
We are a nation of laws, and the fact that no person is above the law
is a bedrock principle upon which this Nation was founded and one we
are defending and fighting for abroad. This type of covert spying on
American citizens and targeted groups on American soil betrays that
principle.
The chairman of the Judiciary Committee has the right instinct and
was right to announce that we need hearings and an explanation, and the
American people deserve an accounting for this troubling revelation.
Earlier this week, I joined with Senators Reid and Rockefeller in
requesting specific information from the Bush administration on its
covert spying operations domestically. I cannot emphasize strongly
enough how important it is for the Bush administration to cooperate
with Congress on this matter. No one should be able to conduct secret,
illegal spying programs on our soil with no accountability to Congress
or the American people.
Congress has passed laws that established a legal way to eavesdrop on
al-Qaida and other potential terrorist organizations. Internationally
that monitoring should have been done more effectively before 9/11 by
this administration. We have established legal authority in emergency
circumstances for the Attorney General to proceed first so long as he
promptly seeks court approval thereafter. We even provided a 15-day
window after a declaration of war. This program has apparently been
going on for not 4 days or 14 days but for more than 4 years. That is
not pursuant to or consistent with FISA. In the PATRIOT Act and other
actions since 9/11, Congress has created additional authorities. But it
is Congress that passes laws. The President cannot simply declare when
he wishes to follow the law and when he chooses not to.
What happens to the rule of law if those in power abuse it and only
adhere to it selectively? What happens to our liberties when the
Government decides it would rather not follow the rules designed to
protect them?
The Bush administration, in secret legal justifications for a secret
eavesdropping program, apparently argues that when the Congress
authorized the use of force in September 2001 to attack al-Qaida in
Afghanistan, it authorized warrantless searches and eavesdropping on
Americans. I voted for that authorization. This program is not what I
voted for. Congress did not sign a blank check. The power to eavesdrop
on Americans is not even authority that the Bush administration asked
for from Congress.
I was chairman of the Judiciary Committee when the President's
program was undertaken, and I was never informed of the program or its
purported legal justification. In this, as with its detention and
interrogation practices, this administration has chosen to go it alone.
That is wrong, and it is corrosive to our system of checks and
balances.
This is a Government with three co-equal branches. As Justice
O'Connor reminded the Bush administration, even wartime does not give
the President a blank check with regard to power. As I said last week,
the same lawyers who advised the President that he was above the law
when it came to torture, in a memorandum the Bush administration has
had to disavow and withdraw when it was brought to light, have
apparently advised the Bush administration that this President has
authority to conduct warrantless surveillance of Americans. That is
wrong. Accountability is sacrificed when there is rampant
unilateralism.
No one can just ignore the law or the constitutional limits on
Executive authority that protect Americans' liberties. Accordingly, I
urge the Bush administration to make public its purported legal
justification for what I view as an illegal program of spying on
Americans without court approval. I urge them not just to recite bumper
sticker slogans or conclusory statements that they view their actions
as consistent with the self-serving rewriting of the law they have
secretly made amongst themselves, but to provide that legal
justification in the light of day so that Congress and Americans can
consider it. Provide and post the legal memoranda.
Al-Qaida knows that we eavesdrop and wiretap. Whether we do so
legally, whether we protect the liberties of Americans by respecting
the constitutional requirements for court-issued warrants, these
aspects are of little concern to terrorists but matter greatly to
Americans. I expect that when the supposed legal underpinnings for the
President's eavesdropping program are examined, they, too, will be
withdrawn and disavowed by this administration. I also expect that they
will be rejected by an honest review in Congress, in the courts, and
certainly by the American people. I ask that a copy of a letter to the
President of which I referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, December 20, 2005.
The President,
The White House,
Washington, DC.
Dear Mr. President: Your recent acknowledgement of the
existence of a highly-classified program to conduct
electronic surveillance on U.S. citizens and permanent
residents without obtaining a court order as required by law
has raised a number of troubling issues in the minds of the
American people. That is why Democrats and Republicans have
called for prompt and thorough congressional investigation of
this program. We write to ask that you immediately provide
Congress with additional details on the extent and scope of
this program, your legal justification for your actions, and
your efforts to inform Congress about this program.
The relevant law governing surveillances, the Foreign
Intelligence Surveillance Act of 1978 (``EISA''), could not
be clearer on the need to obtain a court order for such
surveillance. It also provides for emergency procedures and
for authorization of electronic surveillance during a time of
war, with reasonable time limits beyond which a court order
must be obtained. We are deeply troubled by your assertions
that the Constitution and the Authorization for Use of
Military Force passed by Congress following the 9/11 attacks
provide you justification for contravening a statute's clear
language. In your public statements to date, you have not
made a convincing legal argument for the authority to do so.
In addition, public statements by several of the handful of
Members of Congress who were provided a briefing on this
program indicate that insufficient information was provided
to them under ground rules that did not enable Congress to
conduct satisfactory oversight. There are questions whether
your Administration has properly complied with the National
Security Act of 1947 requirement to keep the appropriate
committees of jurisdiction ``fully and currently informed of
the intelligence activities of the United States.''
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It is important for Congress to review these matters. We
respectfully ask that you cooperate fully to provide all
necessary information on all relevant aspects of this
program, including presidential orders, supporting legal
opinions, complete descriptions of actions taken under the
program, and other information, to the appropriate oversight
committees.
As Congress begins to examine this program in greater
detail, it is clear Congress and the American people need
immediately to understand at least four issues:
(1) Under what specific legal authorities did you authorize
warrantless electronic surveillance of American citizens and
permanent residents inside the United States?
(2) Given your assertion that the FISA is insufficient in
providing appropriate authority and procedures to protect
Americans from terrorism, what specific powers or authorities
are insufficient and why, in the four years since the 9/11
attacks, has your Administration not proposed correcting
modifications?
(3) You have stated that you authorized the NSA to
intercept the international communications of people with
known links to al Qaeda and related terrorist organizations.
Have you ever authorized the interception, without a warrant,
of purely domestic communications, or communications of
people without known links to al Qaeda and related terrorist
organizations?
(4) Could you please provide additional information on the
legal and other justifications for limiting briefings on
these matters to a handful of Members of Congress, as well as
information on the dates, attendance, and issues discussed at
these briefings, so it can be determined whether you complied
with the letter and spirit of the National Security Act of
1947?
Sincerely,
Harry Reid,
Democratic Leader.
John D. Rockefeller IV,
Vice Chairman, Select Committee on Intelligence.
Patrick Leahy,
Ranking Democrat, Committee on the Judiciary.
Mr. BIDEN. Mr. President, according to the Book of Mark, Jesus asked
this question: ``For what shall it profit a man, if he shall gain the
whole world, and lose his own soul?'' Mark 8:36.
I would ask the President of the United States a similar question--
what good is it to expand the power of the President, if in the process
you erode the fundamental freedoms guaranteed by the U.S. Constitution?
Last week, we learnd--from a New York Times report and then from
President Bush himself--that since September 11, 2001, the President of
the United States has authorized the National Security Agency to
conduct electronic surveillance of American citizens on American soil
without resort to the procedures of the Foreign Intelligence
Surveillance Act.
Today we learn, contrary to assurances by administration officials,
that the NSA has also conducted warrantless surveillance of purely
domestic phone calls because of the technical difficulties of
determining the physical location of a particular telephone.
There is still much that we do not know about this secret program and
much that we do not know about the purported legal basis for it. In
briefing the press on Tuesday, the Attorney General noted that people
criticizing the administration are proffering opinions based on ``very
limited information,'' and that such critics ``probably don't have the
information about our legal analysis.''
But we do know this: for the past 4 years, the Bush administration
has aggressively sought to expand the power of the President beyond
recognition. In the face of this campaign, a Republican Congress has
largely stood idle, reluctant to exercise its constitutional duty of
oversight.
The Framers provided for a system of checks and balances in the
Constitution for one simple reason: to protect against abuse of power
by any branch of government in order to protect our personal freedoms.
In its zeal to expand the power of the President, the Bush
administration's actions have threatened the fabric of the
Constitution. These are hardly the actions of a self-described
conservative who professes to want to reduce the power of the National
Government.
It would be one thing if the President's actions to expand
Presidential power reflected sound judgment and wisdom. But again and
again, the President's overreaching in the name of security has been
profoundly misguided, and has undermined support for the war against
al-Qaida at home and abroad; in his decision to create special military
tribunals for al-Qaida suspects held in Guantanamo Bay, a system that
has yet to produce a complete trial, in his decision to authorize
secret prisons abroad holding terrorist suspects--including,
apparently, using facilities once operated by Soviet Intelligence
agencies; in his decision to play fast and loose with time-tested
standards against torture; and now in his decision to unilaterally
authorize secret wiretaps of Americans without a court order.
Without more information from the Executive, it is difficult to judge
the legality of the President's secret spying program. I call on the
Attorney General, therefore, to provide the necessary information by
promptly releasing the legal opinions governing this program--so that
the Congress and the American people can assess the propriety of the
President's actions. And I call on the Director of National
Intelligence to promptly provide full and complete briefings to the
appropriate congressional committees on the scope and operation of this
program.
What is clear today is that the President of the United States
decided to create a new system outside the framework of the Foreign
Intelligence Surveillance Act of 1978--a framework that Congress
designed to be comprehensive for electronic surveillance of foreign
powers and agents of foreign powers. It is this framework on which I
will focus my remarks today.
The Foreign Intelligence Surveillance Act, or FISA, was enacted in
1978 after a 3-year effort to do so.
As stated in the report of the Senate Select Committee on
Intelligence, the purpose of the law was to provide regulation for
``all electronic surveillance conducted within the United States for
foreign intelligence purposes'' in order to provide a check against
abuses that had been revealed by the investigation of the Church
Committee.
The bill was a bipartisan product; in the Senate, the original
version introduced in 1977 that served as the basis of the 1978 law was
sponsored by Senators across the ideological spectrum--including Birch
Bayh, Ted Kennedy, Mac Mathias, James Eastland, and Strom Thurmond. The
Senate ultimately adopted the bill on April 20, 1978, by a strong,
bipartisan vote of 95 to 1. At the time the bill was approved in the
Senate, I stated that it ``was a reaffirmation of the principle that it
is possible to protect national security and at the same time the Bill
of Rights.'' I was also a member of the conference committee that
produced the final version of the law that was enacted with broad
support in October 1978.
Here is what we did in 1978. FISA was designed to govern our
collection of ``foreign intelligence.'' Typically, in the criminal
context, search warrants can only be issued if the Government can
demonstrate to a neutral judge that probable cause exists to believe a
crime has been committed.
Under FISA, surveillance orders are issued so long as probable cause
exists that someone is an ``agent of a foreign power.'' That term has
been expanded in the last year to even include a lone wolf terrorist;
in other words, someone not affiliated with a known terrorist
organization.
Not only is the standard different under FISA, but the FISA process
is done in secret, with a special court known as the Foreign
Intelligence Surveillance Court. This is a court made up of Federal
judges who sit on U.S. district courts. I should parenthetically note
that we learned today that one of the 11 judges on this court just
resigned in reaction to President Bush's unilateral domestic spying
program.
When we wrote FISA, we knew there could be times when the President
would have to act quickly. We knew there would be times when probable
cause would have to be demonstrated to the FISA court after the
surveillance began. We contemplated emergencies and wrote the law so
that it could deal with them.
First, we addressed emergency situations in section 105(f) of the
act, which provides that if the Attorney General reasonably determines
that an emergency situation exists--and that his investigators need to
target a wiretap against an agent before an application can be made to
the FISA Court--he may do so for 72 hours. The original act provided
for only a 24-hour emergency
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period, but Congress expanded that period to 72 hours in December
2001--after the attacks on 9/11. Similarly, in enacting the Patriot Act
in 2001, Congress provided other changes to FISA.
It is therefore difficult to accept the contention of the Attorney
General that Congress has been unwilling to help the President meet the
challenges we now face.
The law is clear on the steps the Attorney General needs to take to
wiretap suspects without first obtaining a warrant: he must tell a FISA
Court judge at the time of the authorization that he has taken such
emergency measures, and he has to apply for post-hoc approval as soon
as is practicable but not later than 72 hours after the surveillance
has commenced.
We envisioned another emergency that could authorize warrantless
intelligence searches: a declaration of war. Section 111 lets the
Attorney General authorize electronic surveillance without a court
order to acquire foreign intelligence information for up to 15 calendar
days following a declaration of war by Congress. Although the
``Authorization for the Use of Military Force'' approved just after 9/
11 was not, technically speaking, a declaration of war, it was the
constitutional equivalent under the war clause to permit the use of
force in Afghanistan, and the President would have been justified to
exercise these extraordinary surveillance powers in the first 2 weeks
after enactment of the joint resolution.
It is also important to note that FISA, on its own terms, set up a
comprehensive and exclusive system for domestic wiretapping. Section
2511(2)(f) of Title 18, United States Code, states that FISA, when
combined with wiretap authority for domestic criminal investigations,
is the ``exclusive means by which . . . the interception of domestic
wire, oral and electronic communications may be conducted.''
That is why George Will recently had this to say about the
administration's tortured legal reasoning, ``The President's
authorization of domestic surveillance by the National Security Agency
contravened a statute's clear language.''
It is also worth looking at how the FISA system has operated
throughout its 27 years of existence. I would submit that it has served
us well.
To those who would say it is too restrictive on our ability to gain
intelligence, I would respond that the FISA Court has only rejected 5
applications out of approximately 19,000.
To those who would say that the system is too lenient, I would
respond that the important piece of the equation with FISA is that it
has some independent review of the executive branch--in this instance,
by an independent Article III judge.
And yet, even with a history of a FISA court that approves the
overwhelming majority of applications, and even with the two emergency
exceptions, there are some who still argue that the administration
needs additional flexibility.
For example, there are some who would say that FISA wouldn't allow us
to tap the phone numbers found in the cell phone of a top al-Qaida
target. With all due respect, a phone number found in a top al-Qaida
operative's cell phone would seem to me to comfortably satisfy the
``probable cause'' standard outlined above. And if there were an urgent
need to tap these phone numbers promptly--as I am sure there would be--
no one has explained why this couldn't be done under the 72-hour
emergency exception.
Rather, we have the disturbing spectacle of the Deputy Director of
National Intelligence, General Hayden, complaining that ``FISA involves
marshaling arguments . . . FISA involves looping paperwork around.''
Exactly right. FISA isn't a high hurdle--but it does require the
executive branch to justify the extraordinary surveillance of American
citizens to a judicial officer. Isn't this the rule of law that we are
fighting to defend? And when FISA has needed updating over its 27-year
existence, Congress has, time and time again, stepped up to the plate.
When we first enacted FISA, its scope was limited to wiretapping and
other electronic eavesdropping. It has since been amended to authorize
pen/trap orders and business record orders; in reaction to the Zacarias
Moussaoui case, Congress created the so-called ``lone wolf'' provision;
after 9/11, we extended the emergency period from 24 to 72 hours; and
the list goes on and on.
If additional changes need to be made to FISA, this Senator stands
ready and willing to engage in that exercise.
The alternative is the course on which the President has embarked,
directly contravening a specific statute and relying on a dangerously
expansive view of his Commander in Chief authority--a view that would
potentially expose thousands of Americans who make a phone call abroad
to surveillance of this sort. This is a course that we tried to avoid
when we drafted the FISA Act in the first place. As I said in 1978 when
FISA was originally passed, ``it is not necessary to compromise civil
liberties in the name of national security.'' I hope the lessons from
1978 and the real story about what FISA allows can inform the debate
going on today.
This debate is just beginning. Congress must stand up to this
Presidential overreaching, examine what occurred, and provide
corrective action. Senator Specter, the Chairman of the Judiciary
Committee, has promised to hold hearings on this matter. I commend him
for that.
But we will need the full cooperation of the Executive in this
undertaking, and the administration can start by coming clean with the
full legal reasoning for the President's domestic spying program.
There will be much more to say--and learn--in the second session of
the 109th Congress. The executive branch's program must be subjected to
close scrutiny by this Congress to ensure that in pursuit of terrorists
or suspected terrorists, we are not sacrificing essential freedoms that
we hold dear.
Mr. LEVIN. Mr. President, more than 50 years ago, Justice Robert
Jackson said:
With all its defects, delays and inconveniences, men have
discovered no technique for long preserving free government
except that the Executive be under the law, and that the law
be made by parliamentary deliberations.
I am deeply troubled by recent revelations that the President of the
United States has apparently personally authorized spying on the
private phone conversations of Americans without court approval, as is
required by law. The President's decision to ignore the law Congress
wrote and bypass the special court we created raises profound concerns
that deserve our immediate attention.
Yesterday, I joined several of my colleagues in requesting a joint
inquiry into the President's actions by the Senate Intelligence and
Judiciary Committees.
Checks and balances are the bedrock of our system of government. In
1978, when Congress passed the Foreign Intelligence Surveillance Act to
permit the Government to seek court orders to tap the phones of people
in the United States, Congress put in the law a check--the FISA Court--
on the executive branch's authority.
Since 1979 the FISA Court has approved nearly 19,000 applications for
FISA wiretaps. The Court has rejected only a handful.
Last year, at a speech in Buffalo, NY, the President explicitly cited
the need for a court order as a reason why Americans should have
confidence that their civil liberties are being protected. He said:
Any time you hear the United States government talking
about wiretap, it requires--a wiretap requires a court order.
Nothing has changed, by the way. When we're talking about
chasing down terrorists, we're talking about getting a court
order before we do so. It's important for our fellow citizens
to understand . . . constitutional guarantees are in place
when it comes to doing what is necessary to protect our
homeland, because we value the Constitution.
But now the President acknowledges that 4 years ago, he authorized
wiretaps on Americans without court review. Now he asserts that he has
the authority--without court approval--to order the wiretaps himself
and we now know that the Government was conducting warrantless wiretaps
when the President made the statement in Buffalo.
If the court isn't consulted, where is the check on executive power?
The President has said that he consults with executive branch lawyers
and has briefed Congressional leaders about the domestic spying
program. But to suggest that consulting with executive branch lawyers
is a check on
[[Page S14280]]
Executive Branch authority demonstrates a fundamental misunderstanding
of the concept of checks and balances. And notifying a few members of
Congress--if that is in fact what the administration did--is not the
check provided by law. That check is the court.
In the conference report that accompanied the FISA law, Congress made
the Supreme Court the only body that could authorize electronic
surveillance by the executive branch not explicitly authorized by the
FISA law. The conference report said:
The conferees agree that the establishment by this act of
exclusive means by which the President may conduct electronic
surveillance does not foreclose a different decision by the
Supreme Court . . .
Executive Order 12333, issued by President Reagan in 1981, recognizes
FISA as the governing law for foreign intelligence wiretaps. It
provides that:
Electronic surveillance, as defined in the Foreign
Intelligence Surveillance Act of 1978, shall be conducted in
accordance with that Act, as well as this Order.
And, under FISA itself, a person is actually guilty of a crime if he
engages in electronic surveillance except as authorized by statute.
A person is guilty of an offense if he intentionally--(1)
engages in electronic surveillance under color of law except
as authorized by statute.
The President has not provided any legal opinion that supports his
claim of authority.
On Monday, the President said that the targets of the spying are
``those that are known al Qaeda ties and/or affiliates.'' But the FISA
law says that wiretap orders may be issued by the court if there is
probable cause to believe that the target of the wiretap is a foreign
power or an agent of a foreign power. If the targets of the spying have
known al Qaeda ties, why didn't he get a FISA court order?
The President has also tried to justify the warrantless spying by
saying ``Sometimes we have to move very, very quickly.'' That is true.
In some cases we do have to move quickly. But the FISA law addresses
such occasions. It explicitly allows the Attorney General, to issue
emergency wiretap orders without first obtaining court approval. His
wiretap application need only be filed with the FISA court within 72
hours after surveillance is authorized.
The President claims that he has authority under the Constitution to
authorize wiretaps without court approval as required by law. Yet he
refuses to provide any legal opinions justifying that view.
The Attorney General is quoted in the Washington Post as saying
``This is not a backdoor approach . . . We believe Congress has
authorized this kind of surveillance'' and he points to the
Authorization for Use of Military Force passed by Congress in September
2001 as a source of Congressional authorization.
That Resolution states:
That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.
The assertion that ``necessary and appropriate force'' includes the
authority to wiretap American citizens in the United States, is, on its
face, without merit. And again, the President has not provided any
legal opinion that would support that interpretation.
The Attorney General undermined his own statement that the Congress
authorized warrantless wiretaps by telling the Post that the President
had contemplated asking Congress to pass legislation granting him that
authority but decided against it because it ``would be difficult, if
not impossible'' to pass. Taken together, the two statements of the
Attorney General make no sense. He asserts both that Congress
authorized the wiretapping and that it never would. The Attorney
General is trying to have it both ways. We need some straight answers.
So, why wasn't the FISA law followed?
Just this morning, the Washington Post reported that General Michael
Hayden the head of the National Security Agency--the agency the
President has charged with carrying out the spying--suggested that
getting retroactive court approval is inefficient because it ``involves
marshaling arguments'' and ``looping paperwork around.''
I would remind General Hayden--and the President for that matter--of
something else Justice Jackson said. He said:
The doctrine of the separation of powers was adopted by the
Convention of 1787, not to promote efficiency but to preclude
the exercise of arbitrary power.
Just as troubling as General Hayden's reason for bypassing FISA is
the Post's report that the decision to tap a phone without a warrant
``requires only the approval of a shift supervisor.''
That is outrageous. We don't let shift supervisors at the airport
decide to stop screening passengers for explosives. And we shouldn't
let shift supervisors at the NSA decide whether to abide by the law or
not.
The President says that this is a different era and a different type
of war. And he is right. But this is the same country, with the same
Constitution, and the same system of checks and balances that have
served us so well for more than 200 years. And even Presidents are not
above the law.
Mr. DODD. Mr. President, I rise to speak on the PATRIOT Act
Reauthorization conference report.
I voted for the original legislation in 2001. Along with 98 of my
colleagues, I supported that bill because I decided that on balance,
the PATRIOT Act it would enhance our Nation's ability to fight
terrorism without substantially encroaching on our citizens' civil
liberties. At the same time, I and many of our colleagues understood
that aspects of the law should be revisited. For that reason, a number
of provisions were set to sunset on December 31, 2005. After careful,
bipartisan review of these provisions, it became evidence to many of us
that certain improvements are necessary to maintain the balance between
fighting terrorism and protecting civil liberties. For that reason, I
joined with a bipartisan group of Senators to cosponsor the SAFE Act,
which would have modestly reformed the 2001 PATRIOT Act to provide
procedural safeguards and increase judicial review.
In July of this year, the Senate unanimously passed a PATRIOT Act
reauthorization bill. While that bill was not perfect, it took
significant steps to fix shortcomings in the current law and strength
our Nation's ability to fight terrorism while still protecting the
civil liberties that are the cornerstone of a free and secure
democratic society. The House also passed a reauthorization bill, which
did not come as close to reaching this goal. Conferees were appointed
to work out a compromise.
Prior to the Thanksgiving recess, a draft PATRIOT Act reauthorization
conference report was circulated by conferees. At the urging of several
Senators, Senator Specter and others took the conference report back to
the conferees to try to negotiate additional modifications. They are to
be commended for their efforts to reach a compromise that would earn
broad bipartisan support.
When the conference was concluded, a number of our colleagues,
including Senators Leahy, Kennedy, Rockefeller, and Levin declined to
sign the conference report due to their exclusion from key negotiations
and their conclusion that the conference report failed to sufficiently
meet the dual objective of combating terrorism and defending freedoms.
While I believe that the conference report is an improvement over
current law, the provisions related to section 215, national security
letters, and roving wiretaps have still given me pause. First, under
section 215, also called the business records provision, current law
allows the Justice Department to obtain medical records, business
records, library records, or other tangible items of individuals by
merely showing that the items are relevant to a terrorism
investigation. The unanimously agreed upon Senate bill requires that
the Government show that a person whose records are sought have some
connection to a suspected terrorist or spy organization. Unfortunately,
the conference report differs from the Senate version as it maintains
the minimal standard of relevance without a requirement of fact
connecting the
[[Page S14281]]
records sought, or the individual, suspected of terrorist activity.
Additionally, the conference report does not impose any limit on the
breadth of the records that can be requested or how long those records
can be kept by the Government.
Under the current PATRIOT Act, an individual who receives a section
215 order to turn over business records is prohibited from telling
anyone about the order. This is referred to as a ``gag order.'' The
conference report is an improvement over current law as it explicitly
grants the right for a suspect to consult with an attorney regarding
this ``gag order'' but unlike the Senate version, the conference report
also requires an individual who receives a Section 215 order to notify
the FBI if he consults with an attorney and to identify the attorney.
Second, under current law, the FBI can issue a national security
letter--``NSL''--without the approval of a judge, grand jury, or
prosecutor, to obtain certain types of sensitive information about
innocent individuals. Similar to a 215 order, the targeted individual
is restricted by a gag order. While the conference report does provide
the right to challenge the NSL demand, it also requires the court to
accept as conclusive the Government's assertion that a gag order should
not be lifted, unless the court determines the Government is acting in
bad faith.
I also find it troubling that the conference report would give the
Government the authority to keep all evidence secret from an individual
who is challenging a 215 order or an NSL order. For example, if an
attorney wants to challenge an order to turn over the business records
of a client on the grounds of attorney/client privilege, they would not
be allowed to see the evidence the Government had requested or the
reasoning behind the request. It is also important to note that the
recipient of a Section 215 ``business records'' order or an NSL order
is usually not the subject of investigation. For example, a doctor
could receive a Section 215 order from law enforcement to reveal the
medical records of a patient. Under this conference report, that
patient would not even receive notice that the Government had obtained
his personal information and would never have the opportunity to
challenge the use of that information in a trial.
Third, I would like to address ``roving wiretaps.'' A ``roving
wiretap'' is a tap on any telephone that a suspect uses, moving from
one telephone to another, with no particular locational target. Under
the PATRIOT Act, the FBI is authorized to engage in roving wiretaps
without court approval. The Senate bill mandated that a roving wiretap
include sufficient information to describe the specific person to be
wiretapped with ``particularity.'' ``Particularity'' is a legal term of
art describing the place or places to be searched, the person or
persons, thing or things to be seized, the communication to be
intercepted, and the nature of evidence to be obtained. The conference
report does not include that requirement and it does not require the
Government to determine whether the target of a roving intelligence
wiretap is present before beginning surveillance. Without this level of
specification it is easy to see how roving wiretaps could be abused to
secretly record the conversations of Americans without their knowledge
or consent.
However, I would also like to note that the conference report is an
improvement over current law as it includes a number of comprehensive
public reporting and auditing requirements which would help prevent
abuse of section 215 orders and to help preserve civil liberties.
Additionally, the conference report also maintains provisions from the
Senate bill that address the shortcomings of current law, including
expressly permitting the recipient of the national security letter or a
section 215 order to consult with an attorney, requiring the Government
to notify a target of a warrantless search within a set number of days,
and limiting the use of roving wiretaps to those cases in which the FBI
includes a ``specific'' description of the target and ``specific facts
in the application'' that show the target's actions may thwart
conventional surveillance efforts.
The PATRIOT Act Reauthorization conference report passed the House by
a vote to 251-174 on December 14 and was brought to the Senate floor
for debate. On December 16, Senator Frist attempted to invoke cloture
to bring this body to a vote on the conference report. Cloture was not
invoked. I was necessarily absent from the Senate for health reasons.
Since then I have joined 47 of my colleagues in cosponsoring S. 2082.
The bipartisan legislation, introduced by Senators Sununu and Leahy,
would provide a 3-month extension of the expiring provisions of the
PATRIOT Act. Unfortunately, Senator Frist has said he will not permit a
vote on it; the House leadership has said they will not bring it to the
floor for a vote; and the Bush administration has stated that, even if
the extension were to pass both the House and the Senate, President
Bush would refuse to sign it. My fellow colleagues have asked this body
more than a half dozen times to allow this 3-month extension to come to
the floor. They have been denied this opportunity. This is playing
politics with an extremely important law that protects our citizens
from terrorism.
Earlier this week, the President, in speaking of the PATRIOT Act,
said, ``in a war on terror, we cannot afford to be without this law for
a single moment.'' I agree with his statement. That is why there is no
reason why the President and those on the other side of the aisle
should refuse to extend this important law. This is why I remain
hopeful that the majority leader will set aside politics and allow this
extension to occur. Law enforcement officials should not be without
these important tools to fight terrorism for even a single moment. We
would then have the opportunity to return after the holidays to address
these areas of concern and hopefully pass a bipartisan bill that would
enhance our ability to fight terrorism without substantially
encroaching on our civil liberties.
The PRESIDING OFFICER. Under the previous order, the bill is read a
third time and passed, and the motion to reconsider is laid upon the
table.
The bill (S. 2167) was read a third time and passed, as follows:
S. 2167
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EXTENSION OF SUNSET OF CERTAIN PROVISIONS OF THE
USA PATRIOT ACT AND THE LONE WOLF PROVISION OF
THE INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004.
Section 224(a) of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (18 U.S.C.
2510 note) is amended by striking ``December 31, 2005'' and
inserting ``July 1, 2006''.
____________________
