Congressional Record: January 17, 2007 (Senate) Page S646-S647 THE FISA PROGRAM Mr. LEAHY. Madam President, earlier today, I spoke with the Attorney General of the United States. He is going to be testifying before the Senate Judiciary Committee tomorrow morning. We anticipate it will be for much of the day. He wished to inform me, as he did Senator Specter, of some changes in the so-called FISA Program. I have been very critical of the administration's actions through the National Security Agency--their wiretapping of Americans, wiretapping of people throughout the country, and apparently doing so without obtaining any warrants. Interestingly enough, the information about this spying on Americans came not from our administration reporting it either through the Intelligence Committee or the Judiciary Committee or the appropriate committees involved; it came out because, like so many other things we find out about, we read about it first in the newspaper. Apparently, the administration has decided not to continue this warrantless spying program on Americans, but instead to seek approval for all wiretaps from the Foreign Intelligence Surveillance Court. I say this based on the letter sent to us. This is public; this is not a classified matter. The law has required for years that they do it this way. I welcome the President's decision not to reauthorize the NSA's warrantless spying program because, as I have pointed out for some time, and as other Senators on both sides of the aisle have pointed out, the program was, at very best, of doubtful legality. Since this program was first revealed, I have urged this administration to inform Congress of what the Government is doing and to comply with the checks and balances Congress wrote into law in the Foreign Intelligence Surveillance Act. We know we must engage in all surveillance necessary to prevent acts of terrorism, but we can and we should do it in ways that protect the basic rights of all Americans, including the right to privacy. The issue has never been whether to monitor suspected terrorists-- everybody agrees with that; all Americans do. The question is whether we can do it legally and with proper checks and balances to prevent abuses. Providing efficient but meaningful court review is a major step toward addressing those concerns. I continue to urge the President to fully inform Congress and the American people about the contours of the Foreign Intelligence Surveillance Court order authorizing the surveillance program and of the program itself. Only with meaningful oversight can we assure the balance necessary to achieve security with liberty. I ask unanimous consent that a copy of a letter from the Attorney General, dated January 17, addressed to me and Senator Specter, which indicates copies to numerous other people, be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: The Attorney General, Washington, DC, January 17, 2007. Hon. Patrick Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Hon. Arlen Specter, Ranking Minority Member, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Chairman Leahy and Senator Specter: I am writing to inform you that on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court. In the spring of 2005--well before the first press account disclosing the existence of the Terrorist Surveillance Program--the Administration began exploring options for seeking such FISA Court Approval. Any court authorization had to ensure that the Intelligence Community would have the speed and agility necessary to protect the Nation from al Qaeda--the very speed and agility that was offered by the Terrorist Surveillance Program. These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge on the FISC to consider and approve these orders. The President is committed to using all lawful tools to protect our Nation from the terrorist threat, including making maximum use of the authorities provided by FISA and taking full advantage of developments in the law. Although, as we have previously explained, the Terrorist Surveillance Program fully complies with the law, the orders the Government has obtained will allow the necessary speed and agility while providing substantial advantages. Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires. The Intelligence Committees have been briefed on the highly classified details of these orders. In addition, I have directed Steve Bradbury, Acting Assistant Attorney General for the Office of Legal Counsel, and Ken Wainstein, Assistant Attorney General for National Security, to provide a classified briefing to you on the details of these orders. Sincerely, Alberto R. Gonzales, Attorney General. Mr. LEAHY. Madam President, I was a prosecutor for 8 years. I enjoyed being a prosecutor. But I also was well aware that we acted within checks and balances. Courts had their role, prosecutors had their role, defense attorneys had their role. It only worked when everybody did what they were supposed to, including the executive. I was also a prosecutor and on the board of the National District Attorneys Association at the time of COINTELPRO, a program of spying on Americans who disagreed with the war in Vietnam, and even, we found out later, spying on Martin Luther King because he was speaking so radically as to suggest that we might actually want equality between people, no matter what their color might be, in this country. Our Government was spying on people who objected to war. Our Government was spying on people who wanted integration in America. I don't want us to go back to that point. I shudder to think what might have happened if J. Edgar Hoover had had all the electronic capabilities we have today. The only way we stop this--it makes no difference if we have a Democratic or Republican administration--the only way we stop it is with the checks and balances we have built in. FISA and the Foreign Intelligence Surveillance Court came about because of illegal spying on Americans who were not committing any unlawful act, but were simply questioning what their Government was doing. Many of us [[Page S647]] worry that has happened now. We have seen, for example, that the Department of Defense has had surveillance, has even recorded movies, of Quakers protesting war. Quakers always protest wars. Madam President, I ask for 2 additional minutes, under the same agreement. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LEAHY. They always do this. We heard in the press that there has been surveillance of Vermonters who protested the war. I can save them money. Turn on C-SPAN. I do it all the time on the Senate floor, if they want to find a Vermonter who may protest the war. The question here is a greater one. What right does our Government-- our Government, which is there to serve all of us--have to spy on individual Americans exercising their rights? Of course, go after terrorists, but to go after terrorists, you can do it within the law. The distinguished occupant of the chair, the Presiding Officer, is also a former prosecutor. She knows how we have to go to court and follow the law for search warrants or anything else. In this area of foreign intelligence, we have made it very easy and very quick for the government to go before special courts, FISA courts. Let's do that, because when this administration or any administration says they are above the law, they don't have to follow the law, they can step outside the law, they don't have to follow checks and balances, then I say all Americans, no matter what your political leaning might be, all Americans ought to ask why are they doing this, why are they doing this. Because it doesn't in the long run protect us, not if we let them take away our liberties. Madam President, I yield the floor. The PRESIDING OFFICER. The Senator from Utah is recognized. ____________________ Congressional Record: January 17, 2007 (Senate)] Page S652-S653 New Foreign Surveillance Policy Mr. SPECTER. Madam President, I thank my colleagues for yielding this time. I have sought recognition to express my approval--I am glad to see that the Attorney General of the United States, in telephone calls to Senator Leahy and myself and now in letters, has advised that there is a new procedure to have the requests for wiretaps on al-Qaida members submitted to the Foreign Intelligence Surveillance Court. On December 16, the New York Times broke the story that there were wiretaps going on under a Presidential order without complying with the customary requirement that probable cause be established and submitted to the court, which would authorize the issuance of a warrant, to authorize the wiretap. On that day, Friday, we were in the final stages of floor debate on the PATRIOT Act, and the disclosure that morning that there were warrantless recordings going on was quite a shock and quite a problem, because I was managing that bill in my capacity as chairman of the Judiciary Committee. I said on the floor at that time that there was a clear-cut violation of the Foreign Intelligence Surveillance Act, which provides that the Act is the exclusive way for having a wiretap for foreign intelligence surveillance. The President has sought to justify the surveillance under his article II inherent powers. That raises a complicated issue, which can only be determined by the courts by weighing the invasiveness of the wiretapping--invasiveness into privacy--contrasted with the importance of national security. Most of last year found this item as the No. 1 priority of the Judiciary Committee and my No. 1 priority as chairman. We had a series of hearings, four hearings. I introduced legislation to try to bring the program at that time under the Foreign Intelligence Surveillance Act. The administration had refused to disclose the details of the program to the Judiciary Committee. They maintained that attitude consistently up until today. They finally did submit it, after a lot of pressure, to the Intelligence Committees--first a subcommittee of the Senate Intelligence Committee, then when the House resisted only a subcommittee, it was finally submitted to the full committees--really it was only submitted when the time came for the confirmation of General Hayden for Director of the CIA. I have not been privy to what was disclosed to the Intelligence Committee, but based on my chairmanship of that committee during the 104th Congress, I have some doubts as to the adequacy of the disclosure. I know when I was chairman, the chairman was supposed to be informed about those classified and secret programs, but that was in fact not the case. When the matter later moved into litigation and the Federal court in Detroit declared the surveillance program unconstitutional, and then the appeal was taken to the Sixth Circuit, I introduced substitute legislation--S. 4051 last year, and I've reintroduced it already this year--which would have provided for expedited review in the Federal courts and mandatory review by the Supreme Court. The bill also would have required individualized warrants for calls originating in the United States, because the administration had disclosed that, if there were changes made in the Foreign Intelligence Surveillance Act, there could be a warrant for all outgoing calls but not incoming calls because there were so many. I am glad to see that we may now have all of that resolved. We are not sure. I want to know the details of this program. Senator Leahy has already spoken on the subject today and has put into the Record a letter that he and I received today from the Attorney General. The key parts are as follows: I am writing to inform you that on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to approval of the Foreign Intelligence Surveillance Court. That language says there will be probable cause established. I think we need to know more about the procedures for the determination of probable case, whether it is on individualized warrants or it is a group program. We will need to know more about the determination of an individual being an agent of al Qaeda, and we will need to know more about what is meant by an associated terrorist organization, to see that probable cause has been established under the customary standards. The letter from the Attorney General goes on to say: In the spring of 2005--well before the first press account disclosing the existence of the Terrorist Surveillance Program--the Administration began exploring options for seeking such FISA Court approval. It would have been my hope that the Attorney General, in our oversight hearings, where he was called and asked about this program, would have made that disclosure. A lot of time and effort went into the Judiciary Committee hearings and went into the [[Page S653]] drafting of legislation. I personally met with the President last July 11 and secured his agreement to submit this program to the Foreign Intelligence Surveillance Court. For a variety of reasons, which I shall not detail now, that legislation did not move forward. Then, as I've noted, there was substitute legislation when the Federal court in Detroit declared the program unconstitutional and the matter came before the Sixth Circuit. The Attorney General's letter says, as is appropriate, that the program will have ``the speed and agility necessary to protect the Nation'' from terrorist attack--and that has always been a major concern: that we be protected, but that we be protected with an appropriate balance, so that there not be an intrusive wiretap without the customary court approval. The Attorney General had advised me that there would be a meeting today, which I am just informed has been canceled, but there needs to be oversight beyond what has been disclosed in this letter. But at least there is a very significant first step. It is regrettable that these steps were not taken a long time ago. I would like to have an explanation as to why it took from the spring of 2005, and at least from December 16, 2005, until now, when there has been such public furor and public concern. Further, the letter of the Attorney General says: Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires. It would be my hope that the program is terminated now, since there is an alternative method which the Attorney General has announced. I do not know when the program will expire. They have it in place for 45-day periods. We do not know when the last one started, so we do not know when this one will end. But, with an alternative program in place, it ought to be terminated now--to have the regular procedures for the establishment of probable cause, to protect civil liberties. And, as the Attorney General says, to address concerns in taking care of the protection of the country. Again, Madam President, I thank my colleagues for yielding the time. I yield the floor.