Congressional Record: January 20, 2006 (Senate)
Page S28-S30
SENATE RESOLUTION 350--EXPRESSING THE SENSE OF THE SENATE THAT SENATE
JOINT RESOLUTION 23 (107TH CONGRESS), AS ADOPTED BY THE SENATE ON
SEPTEMBER 14, 2001, AND SUBSEQUENTLY ENACTED AS THE AUTHORIZATION FOR
USE OF MILITARY FORCE DOES NOT AUTHORIZE WARRANTLESS DOMESTIC
SURVEILLANCE OF UNITED STATES CITIZENS
Mr. LEAHY (for himself and Mr. Kennedy) submitted the following
resolution; which was referred to the Committee on the Judiciary:
S. Res. 350
Whereas the Bill of Rights to the United States
Constitution was ratified 214 years ago;
Whereas the Fourth Amendment to the United States
Constitution guarantees to the American people the right ``to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures'';
Whereas the Fourth Amendment provides that courts shall
issue ``warrants'' to authorize searches and seizures, based
upon probable cause;
Whereas the United States 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;
Whereas Congress was concerned about the United States
Government unconstitutionally spying on Americans in the
1960s and 1970s;
Whereas Congress enacted the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), commonly
referred to as ``FISA'', to provide a legal mechanism for the
United States Government to engage in searches of Americans
in connection with intelligence gathering and
counterintelligence;
Whereas Congress expressly enacted the Foreign Intelligence
Surveillance Act of 1978, and specified provisions of the
Federal criminal code (including those governing wiretaps for
criminal investigations), as the ``exclusive means by which
domestic electronic surveillance . . . may be conducted''
pursuant to law (18 U.S.C. 2511(2)(f));
Whereas the Foreign Intelligence Surveillance Act of 1978
establishes the Foreign Intelligence Surveillance Court
(commonly referred to as the ``FISA court''), and the
procedures by which the United States Government may obtain a
court order authorizing electronic surveillance (commonly
referred to as a ``FISA warrant'') for foreign intelligence
collection in the United States;
Whereas Congress created the FISA court to review
wiretapping applications for domestic electronic surveillance
to be conducted by any Federal agency;
Whereas the Foreign Intelligence Surveillance Act of 1978
provides specific exceptions that allow the President to
authorize warrantless electronic surveillance for foreign
intelligence purposes (1) in emergency situations, provided
an application for judicial approval from a FISA court is
made within 72 hours; and (2) within 15 calendar days
following a declaration of war by Congress;
Whereas the Foreign Intelligence Surveillance Act of 1978
makes criminal any electronic surveillance not authorized by
statute;
Whereas the Foreign Intelligence Surveillance Act of 1978
has been amended over time by Congress since the September
11, 2001, attacks on the United States;
Whereas President George W. Bush has confirmed that his
administration engages in warrantless electronic surveillance
of Americans inside the United States and that he has
authorized such warrantless surveillance more than 30 times
since September 11, 2001; and
Whereas Senate Joint Resolution 23 (107th Congress), as
adopted by the Senate on September 14, 2001, and House Joint
Resolution 64 (107th Congress), as adopted by the House of
Representatives on September 14, 2001, together enacted as
the Authorization for Use of Military Force (Public Law 107-
40), to authorize military action against those responsible
for the attacks on September 11, 2001, do not contain legal
authorization nor approve of domestic electronic
surveillance, including domestic electronic surveillance of
United States citizens, without a judicially approved
warrant: Now, therefore, be it
Resolved, That Senate Joint Resolution 23 (107th Congress),
as adopted by the Senate on September 14, 2001, and
subsequently enacted as the Authorization for Use of Military
Force (Public Law 107-40) does not authorize warrantless
domestic surveillance of United States citizens.
Mr. LEAHY. Mr. President, today I am submitting this resolution
expressing the sense of the Senate that the Authorization for Use of
Military Force, which Congress passed to authorize military action
against those responsible for the attacks on September 11, 2001, did
not authorize warrantless eavesdropping on American citizens.
As Justice O'Connor underscored recently, even war ``is not a blank
check for the President when it comes to the rights of the Nation's
citizens.''
Now that the illegal spying of Americans has become public and the
President has acknowledged the 4-year-old program, the Bush
administration's lawyers are contending that Congress authorized it.
The September 2001 Authorization to Use Military Force did no such
thing. Republican Senators also know it and a few have said so
publicly. We all know it. The liberties and rights that define us as
Americans and the system of checks and balances that serve to preserve
them should not be sacrificed to threats of terrorism or to the
expanding power of the government. In the days immediately following
those attacks, I said, and I continue to believe, that the terrorists
win if they frighten us into sacrificing our freedoms and what defines
us as Americans.
I well remember the days immediately after the 9/11 attacks. I helped
open the Senate to business the next day. I said then, on September 12,
2001:
``If we abandon our democracy to battle them, they win. . .
. We will maintain our democracy, and with justice, we will
use our strength. We will not lose our commitment to the rule
of law, no matter how much the provocation, because that rule
of law has protected us throughout the centuries. It has
created our democracy. It has made us what we are in history.
We are a just and good Nation.''
I joined with others, Republican and Democrats, and we engaged in
round-the-clock efforts over the next months in connection with what
came to be the USA PATRIOT Act. During those days the Bush
administration never asked us for this surveillance authority or to
amend the Foreign Intelligence Surveillance Act to accommodate such a
program.
Just as we cannot allow ourselves to be lulled into a sense of false
comfort when it comes to our national security, we cannot allow
ourselves to be lulled into a blind trust regarding our freedoms and
rights. The Framers built checks and balances into our system
specifically to counter such abuses and undue assertions of power. We
must remain vigilant on all fronts or we stand to lose these rights
forever. Once lost or eroded, liberty is difficult if not impossible to
restore. The Bush administration's after-the-fact claims about the
breadth of the Authorization to Use Military Force--as recently as this
week, in a document prepared at the White House's behest by the
Department of Justice--are the latest in a long line of manipulations
of the law.
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We have also seen this type of overreaching in that same Justice
Department office's twisted interpretation of the torture statute, an
analysis that had to be withdrawn; with the detention of suspects
without charges and denial of access to counsel; and with the
misapplication of the material witness statute as a sort of general
preventive detention law. Such abuses serve to harm our national
security as well as our civil liberties.
In addition, the press reports that the Pentagon maintains secret
databases containing information on a wide cross-section of ordinary
Americans, and that the FBI is monitoring law-abiding citizens in the
exercise of their First Amendment freedoms. When I worked with Senator
Wyden and others in 2003 to stop Admiral Poindexter's Total Information
Awareness program, an effort designed to datamine information on
Americans--and we meant it. And when I added a reporting requirement on
Carnivore, the FBI's
e-mail monitoring program, to the Department of Justice Authorizations
law in 2002, we meant it. We demanded that Congress be kept informed
and that any such program not proceed without congressional
authorization.
The New York Times reported 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.'' When I learned
of such efforts and that they reportedly included monitoring Quakers in
Florida and possibly Vermont, I wrote to the Secretary of Defense
demanding an answer. That was a month ago. So far he has refused to
provide that answer.
Now we have learned that President Bush has, for more than four
years, secretly allowed the warrantless wiretapping of Americans inside
the United States. And we read in the press that sources at the FBI say
that much of what was forwarded to them to investigate was worthless
and led to dead ends. That is a dangerous diversion of our
investigative resources away from those who pose real threats, while
precious time and effort is devoted to looking into the lives of law-
abiding Americans.
The United States Supreme Court has consistently held for nearly 40
years, since its landmark decision in Katz v. United States, that the
monitoring and recording of private conversations constitutes a
``search and seizure'' within the meaning of the Fourth Amendment.
Congress enacted the Foreign Intelligence Surveillance Act of 1978,
FISA, to provide a legal mechanism for the government to engage in
electronic surveillance of Americans in connection with intelligence
gathering. The Foreign Intelligence Surveillance Act, along with the
criminal wiretap authority in title 18 of the United States Code,
together provide the exclusive means by which the Government may
intercept domestic electronic communications pursuant to the rule of
law.
The Foreign Intelligence Surveillance Act has been amended over time,
and it has been adjusted several times since the 9/11 attacks. Indeed,
much of the PATRIOT Act was devoted to modifying FISA to make it easier
to obtain FISA warrants. But the PATRIOT Act did not amend FISA to give
the Government the authority to conduct warrantless surveillance of
American citizens.
If the Bush administration believed that the law was inadequate to
deal with the threat of terrorism within our boundaries, it should have
come to Congress and sought to change the law. It did not. Indeed,
Attorney General Gonzales admitted at a press conference on December
19, 2005, that the Administration did not seek to amend FISA to
authorize the NSA spying program because it was advised that ``it was
not something we could likely get.''
I chaired the Senate Judiciary Committee in 2001 and 2002, when the
President's secret eavesdropping program apparently began. I was not
informed of the program. I learned about it for the first time in the
press last month. I thank heaven and the Constitution that we still
have a free press.
The Bush administration is now arguing that when Congress authorized
the use of force in September 2001 to attack al Qaeda in Afghanistan,
it authorized warrantless searches and eavesdropping on American
citizens. I voted for that authorization, and I know that Congress did
not sign a blank check. The notion that Congress authorized warrantless
surveillance in the AUMF is utterly inconsistent with the Attorney
General's admission that Congress was not asked for such authorization
because it was assumed that Congress would say no.
Former Senate Majority Leader Tom Daschle, who helped negotiate the
use of force resolution with the White House, has confirmed that the
subject of warrantless wiretaps of American citizens never came up,
that he did not and never would have supported giving authority to the
President for such wiretaps, and that he is ``confident that the 98
senators who voted in favor of authorization of force against al Qaeda
did not believe that they were also voting for warrantless domestic
surveillance.''
Senator Daschle also noted that the Bush administration sought to add
language to the resolution that would have explicitly authorized the
use of force ``in the United States,'' but Congress refused to grant
the President such sweeping power. Maybe that was this Administration's
covert way to seek the authority to spy on Americans, but Congress did
not grant any such authority.
Spying on Americans without first obtaining the requisite warrants is
illegal, unnecessary and wrong. No President can simply declare when he
wishes to follow the law and when he chooses not to, especially when it
comes to the hard-won rights of the American people.
The resolution I submit today is intended to help set the record
straight. It is an important first step toward restoring checks and
balances between the co-equal branches of government. I urge all
Senators to support it.
Mr. KENNEDY. Mr. President, what is past is prologue. Today, we see
history repeating itself. In 1978, President Carter signed into law the
``Foreign Intelligence Surveillance Act,'' successfully concluding
years of debate on the power of the President to conduct national
security wiretapping.
As a result of lengthy hearings and consultation, Congress enacted
that law with broad bipartisan support. Its purpose was clear--to put a
check on the power of the President to use wiretaps in the name of
national security. One of the clear purposes of that law was to require
the government to obtain a judicial warrant for all electronic
surveillance in the United States in which communications of U.S.
citizens might be intercepted. The Act established a secret court, the
Foreign Intelligence Surveillance Court, to review wiretapping
applications and guarantee that any such electronic surveillance
followed the rule of law. Since 1979, the special court has approved
nearly 19,000 applications and denied only 4. Last year, the
Administration reached an all-time-high with the number of applications
granted.
In the Foreign Intelligence Surveillance Act, Congress established
the exclusive means by which electronic surveillance could be conducted
in the United States for national security purposes. One of the
principal goals of the legislation was to ensure that information
obtained from illegal wiretaps could not be used to obtain a warrant
from the Foreign Intelligence Surveillance Court. We even made sure
that there would be criminal penalties for anyone who failed to comply
with these rules.
The PATRIOT Act did not give the President the authority to spy on
anyone without impartial judicial review--and neither did the Joint
Resolution, enacted in 2001, authorizing the use of force against those
responsible for the attacks of September 11th.
The President seemed to agree. In 2004, in Buffalo he stated
categorically that ``any time that you hear the United States talking
about a wiretap, it requires a court order.'' He said that ``Nothing
had changed--when we're talking about chasing down terrorists, we're
talking about getting a court order before we do so.''
Now, however, the President and the administration claim they do not
have to comply with the law. Just yesterday, the administration again
asserted
[[Page S30]]
its constitutional authority to eavesdrop on any person within the
United States--without judicial or legislative oversight and it claims
that the Congress implicitly granted such power in the Joint Resolution
of 2001.
But that Joint Resolution says nothing about domestic electronic
surveillance. As Justice O'Connor has said, ``A state of war is not a
blank check for the president when it comes to the rights of the
nation's citizens.''
The bipartisan 9/11 Commission made clear that the Executive Branch
has the burden of proof to justify why a particular governmental power
should be retained--and Congress has the responsibility to see that
adequate guidelines and oversight are made available.
The Executive Branch has failed to meet the 9/11 Commissioners'
burden of proof. The American people are not convinced that these
surveillance methods achieve the right balance between our national
security and protection of our civil liberties.
These issues go to the heart of what it means to have a free society.
If President Bush can make his own rules for domestic surveillance, Big
Brother has run amok. If the President believes that winning the war on
terror requires new surveillance capabilities, he has a responsibility
to work with Congress to make appropriate changes in existing law. He
is not above the law.
Congress and the American people deserve full and honest answers
about the Administration's domestic electronic surveillance activities.
On December 22, 2005, I asked the President to provide us with answers
before the Senate Judiciary Committee began hearings on Judge Alito's
nomination to the Supreme Court. We got no response. The Senate
Judiciary Committee is scheduled to begin separate hearings on February
6 on the President's actions. Instead of providing us with the
documents the Administration relied upon, the Justice Department
continues to circulate summaries and ``white papers'' on the legal
authorities it purports to have to ignore the law. It now appears that
the President did so on at least thirty occasions after September 11.
There is no legitimate purpose in denying access by Members of Congress
to all of the legal thought and analysis that the President relied upon
when he authorized these activities.
Every 45 days, the President ordered these activities to be reviewed
by the Attorney General, the White House Counsel and the Inspector
General of the National Security Agency. That's not good enough. These
are all executive branch appointees who report directly to the
President.
Congress spent seven years considering and enacting the Foreign
Intelligence Surveillance Act. It was not a hastily conceived idea. We
had broad agreement that both Congressional oversight and judicial
oversight were fundamental--even during emergencies or times of war,
which is why we established a secret court to expedite the review of
sensitive applications from the government.
Now, the administration has made a unilateral decision that
Congressional and judicial oversight can be discarded, in spite of what
the law obviously requires. We need a thorough investigation of these
activities. Congress and the American people deserve answers, and they
deserve answers now.
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