Senator Byrds Speech regarding Terrorist Surveillance

Mr. BYRD. Mr. President, in his radio address on December 17, 2005, President Bush disclosed that after September 11, 2001, he authorized the National Security Agency, NSA, to undertake wiretapping of American citizens to try to prevent terrorist attacks. The President argued that his actions were, in his words, ``fully consistent'' with his constitutional responsibilities.

The President wrongly asserted--Mr. President, the President wrongly asserted--that his authority to order warrantless electronic surveillance of U.S. citizens on American soil is supported by his inherent Presidential powers and the joint congressional resolution that authorized the use of force after September 11.

A huge swath--a huge swath--of America, including many expert legal minds, does not--I say, does not--agree with the arguments put forth by the administration. These arguments are transparently contrived, intellectually deficient, indefensible excuses being served up like tripe to silence legitimate criticism of the White House.

Let me say that again. A huge swath of America, including many expert legal minds, does not agree with the arguments put forth by the administration. These arguments are transparently contrived, intellectually deficient, indefensible excuses being served up like tripe to silence legitimate criticism of the White House, a White House so infused with its own hubris that it has talked itself into believing that its inhabitants are above the law. But they are not. They are not above the law. President Bush is not above the law. No President is above the law. No United States Senator is above the law. No man is above the law. No one in the United States of America is above the law. Remember, this is a nation of laws, not of men.

Yesterday, the Senate's Select Committee on Intelligence jettisoned its constitutional responsibility to make certain that our laws are not being breached, and that the spirit and text of our revered Constitution remain in force. It is a sad day, indeed, to see such an important committee wilt under political pressure applied by the Vice President in partisan meetings held behind closed doors. The committee adjourned last night without considering a Democratic proposal to begin an investigation of the warrantless spying program, even though Senator JAY ROCKEFELLER, the vice-chairman of the Intelligence Committee, had been assured that his proposal would receive a vote.

I want to commend my colleague, Senator ROCKEFELLER. He has worked hard to protect the people's liberties, to make sure that this administration, even in its most secret circles, follows the law and the Constitution. It has not been an easy task, but it is one that Senator ROCKEFELLER has carried diligently.

Like Senator ROCKEFELLER, I will not sit idly by and allow the President's possible breaking of the law to be swept under the rug. I refuse to go quietly into the night, abdicating my responsibility as a U.S. Senator to a secretive executive branch, which refuses to brief the Congress of the United States on its clandestine spying on U.S. citizens without a warrant--an administration that believes it can, on its own, nullify constitutional provisions intended to protect the freedoms of millions of Americans for over 200 years.

This travesty must not stand. The peeping and snooping and spying must be investigated.

I am today announcing my intention to submit to the Congress legislation that will establish a nonpartisan, independent, 9-11-style commission to investigate and determine the legality of the President's actions.

There is a critical need for a thorough investigation of all domestic surveillance programs.

As I stated on Wednesday in my remarks on this subject, we, the American people--not just the NSA or the White House--have a legitimate need to know what is being done, by whom, and to whom. If there is a justifiable and valid reason to surveil a potential terrorist in the U.S., we certainly can find a way to do it legally. If there is a need to provide more efficient tools to fight terror, Congress has the responsibility to deliberate and, if warranted, to approve them. The President should ask Congress for them; not seize new powers that have never been enumerated by any U.S. court.

Congress would be pleased to entertain his request, as we have in the past, by updating FISA and the PATRIOT Act, but not--I repeat, not--before a full investigation to determine if laws have been broken--an investigation which will give members a fuller understanding of just what these surveillance programs entail. A little sunshine on this process is long overdue. Congress cannot fix what the White House does not want us to fully understand.

Congress needs to know if the Foreign Intelligence Surveillance Act or any other U.S. law has been broken, and whether the constitutional rights of thousands of Americans have been violated without cause. It is essential that Congress obtain the answers to these questions, not for partisan political reasons, but because our system of checks and balances requires it.

James Madison advised in Federalist 47 that: the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The assumption of power by an unchecked executive, who arrogantly believes that he can seize the authority to spy on innocent Americans and wantonly violate the fourth amendment is the beginning of the tyranny Madison so feared.

Mr. President, I ask unanimous consent that the text of the fourth amendment of the Constitution be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particu1arly describing the place to be searched, and the persons or things to be seized.

Senators Warner and Roberts on the subject of the President's terrorist surveillance program ...

Mr. WARNER. ...
SURVEILLANCE
I wish to comment on a different subject which has given me a great deal of concern, and that is this question of surveillance. I will unhesitatingly now say, given the statements yesterday by the distinguished chairman of the Intelligence Committee--I am privileged to serve on that committee--that in consultation with the White House, we will proceed, hopefully, on a constructive and fair and objective, to the extent we can get politics out of it, look at the existing laws and determine such modifications as can be agreed upon.
I have continuously taken that stance, quietly, in consultation with my colleagues here, with members of the gang of 14, I may say, which has taken a constructive role in other areas--they have given some consideration and they have a position on that after we return. But it is imperative that we approach this in a bipartisan way.
The intelligence system underpins--it is the foundation on which we conduct our operations of the military in harm's way. It is what we call a force multiplier, meaning for every bit of factual, sound, accurate intelligence effort that can be given to the Armed Forces engaging the enemy, the likelihood is that it produces an advantage such that you possibly would have fewer military people to carry out the mission if you know with great precision what has to be done. We refer to it as a force multiplier in the annals of military planning and history, throughout our recent history. That system has undergone some stresses, occasioned by the wise--I was a partner through this--legislation to establish the means by which our Nation, through its military and civilian representatives, deals with those taken as prisoners.
That is behind us.
We are now faced with the imperative necessity to give our President every possible power in which to continue to utilize the wide spectrum of assets this Nation has to gain that same intelligence to guide us in the days and the weeks and the months to come and, indeed, I say the years to come because the war on terrorism is going to go on long after I have departed this Earth, and it will be the responsibility of my children and my grandchildren, regrettably, for their lifetimes.
That is the turn of events that we now experience in this troubled world. Consequently, our President, as the leader of the most powerful Nation of the free world, must be given all the powers that we possibly can under our Constitution, preserving the integrity of what we call our basic rights and freedoms as given by the Constitution. But at the same time, without that valuable intelligence, we run a greater and greater risk to preserve these freedoms if we do not have it strong and in place and fully functioning.
I hope we can arrive at some legislative package--and it should not be seen as the administration giving in to the Congress or the Congress overriding. No, we must work as coequal branches in partnership.
Recently I had a chance to have a private conversation with the Attorney General of United States and, indeed, the senior officers who are engaged in intelligence gathering. I felt they should build a bridge between the two branches of Government and let us cross it together and decide how we can strengthen this system and leave no doubt--I underscore that--no doubt in the minds of every American citizen that our President is acting within the law, acting consistent with the Constitution of the United States as those powers were enumerated 200-plus years ago but still are as vitally important today as ever.
But this world has moved so far, for example, in the 30-odd years of the FISA Act, which is the core piece of legislation at the moment that is out in the public domain with years of study--so much new technology has come on that it is time to look at the revisions which need to be made under that act.
I do not think we should hold tenaciously on this question of the constitutional authority of Government as being the sole province of the administration for interpretation. Having trained in the law myself, I don't express any great expertise, but I know men and women of clear and sound and patriotic conscience on both sides of this issue looking at the words of the Constitution will determine exactly what the powers of our President are. Yes, this is a political potion and element to the debate, but still beyond that there are men and women of good, sound character and will on both sides of that issue.
People say: Well, let it be resolved by the courts. It may well come to pass.
But each day we let this uncertainty exist has the potential to further impair the intelligence system. Those of our citizens engaged in it and those partners we share intelligence with around the world are beginning to wonder if there is an uncertainty about the status and the authority of what we are doing out on the front lines gathering intelligence, as well as all the way through the chain back to those in positions of responsibility in Washington and elsewhere. You might not get the degree of intelligence that you need.
We have to remove that uncertainty, and move this Nation forward ever so strongly in its collection capabilities, and remove from those citizens--I am not one who follows the polls, and I am not one dictated to by the polls, but the reality is a lot of citizens of clear conscience believe the President may not be acting within the law. We have to remove that. We want every person in the United States to believe our President is acting within the law as we pursue this war on terrorism.
I am very pleased to support what the distinguished Chairman PAT ROBERTS said about the meeting yesterday, and that there will be, in a consultative process, an analysis made by the Congress and the administration in resolving this, and possibly we can seek legislation. It will be a challenge because of the question of the degree of knowledge that we have with regard to how collection is undertaken and how we translate that into law. That will be an unusual challenge facing this body, and we are going to have to reach down and search in our souls and put politics to one side and determine that we are acting in the present and long-term interests of this country--that we have to do it in such a way that when it is concluded we have across the board supported the American public to continue to move forward stronger.
I yield the floor.
43 . DEPARTMENT OF DEFENSE NOMINATIONS -- (Senate - February 17, 2006)
FOR IMMEDIATE RELEASE - February 16, 2006

Senator Roberts Issues Statement on Terrorist Surveillance
WASHINGTON, DC U.S. Senator Pat Roberts, Chairman of the Senate Select Committee on Intelligence, today issued the following statement following a closed Committee business meeting:
The Committee has just completed a business meeting concerning its oversight of the Administrations terrorist surveillance program. The meeting today was held at the behest of Vice Chairman Rockefeller so that the Committee might consider his proposal to launch a far reaching Committee investigation into the surveillance program. I believe that such an investigation is currently unwarranted and would be detrimental to this highly classified program.
The terrorist surveillance program is one which I believe is vital for the protection of the American people. Like Senator Rockefeller, I have been briefed on numerous occasions over the past three years on the operational details of the program. I support the terrorist surveillance program wholeheartedly and am comfortable in my belief that it is necessary, effective and lawful.
Nevertheless, some of my colleagues have expressed concerns that the program needs some form of legislative authorization and greater oversight by the Intelligence Committee. Respecting these views, for the past month I have been working diligently with the Administration to fashion an accommodation which would permit legislative measures and increased oversight while protecting this vital surveillance capability.
Thanks to the hard work and dedication of Members like Mike DeWine and Olympia Snowe, and Chuck Hagel we are now moving in that direction. This week we reached an agreement in principle with Administration officials. The Administration is now committed to legislation and has agreed to brief more Intelligence Committee Members on the nature of the surveillance program. The details of this agreement will take some time to work out.
In order to get more time, today I asked Senator Rockefeller to postpone the business meeting for two weeks in order to conclude what have become fruitful negotiations with the Administration. Unfortunately, despite his best efforts, he was unable to accommodate my request.
During todays meeting, the Committee decided to adjourn without considering the Vice Chairmans investigation proposal, and reconvene on March 7th. On March 7th, if Senator Rockefeller so desires, the Committee will consider his proposal. If, by that time, we have reached no detailed accommodation with the Administration concerning the Committees oversight role, it is possible that the Committee may vote to conduct an inquiry into the program.
The Administration has come a long way in the last month. I am optimistic that we will have an agreement before the Committee meets again.
http://roberts.senate.gov/02-16a-2006.htm

By Mr. BYRD:

S. 2362. A bill to establish the National Commission on Surveillance Activities and the Rights of Americans; to the Committee on the Judiciary.

Mr. BYRD. Mr. President, before the Presidents Day recess, I spoke about recent egregious examples of domestic surveillance by the executive branch, and I announced my intention to introduce legislation to establish a commission to investigate the instances of warrantless wiretapping and spying on U.S. citizens by the National Security Agency and other departments of Government.

I am not the lone voice raising questions about the legality of this program and its effect on the rights of law-abiding American citizens. I am only one--only one--in a growing chorus--a growing chorus--of concerned individuals. Since the New York Times broke the story of the NSA's wiretapping program, many in this Chamber on both sides of the aisle have questioned the legality of the warrantless wiretapping and have called for investigations into possible violations of the Foreign Intelligence Surveillance Act, as well as other transgressions against the spirit or the letter of our revered Constitution.

Many of our country's foremost constitutional scholars and professors of law have expressed their categorical opposition to the NSA's program, citing possible violations of both the Constitution and the Foreign Intelligence Surveillance Act. They agree that ``the program appears on its face''--on its face--``to violate existing law.''

These concerns have, of course, been dismissed by the same branch of Government that hatched the domestic spying program. Did you hear that? I will say it again. These concerns have been dismissed by the same branch of Government that hatched the domestic spying program. But this stonewalling--yes, that is stonewalling--this stonewalling is only part of the story. Important questions about NSA's program have been answered with strained and tenuous justifications or claims of the dire need for secrecy and, as a result, Congress's access to information has been severely--severely, severely--curtailed, by whom? By whom? Guess what, by the administration; by the administration.

There are some things we do know. We know that top officials in the Department of Justice who were concerned about questions of legality and lack of oversight of the program refused to endorse continued use of the NSA's wiretapping. That isn't all. We also know because of these concerns this secret program was suspended. Do you get that? This secret program was suspended temporarily due to questions about its legality.

What most Americans don't know is that FBI agents complained about the utility of the wiretapping program. Voluminous amounts of information and records that were gleaned from this secret eavesdropping program were sent from the National Security Agency to the Federal Bureau of Investigation, and FBI officials repeatedly complained that they were being drowned by a river of useless information that diverted their resources from pursuing important counterterrorism work. Such complaints raise the question of whether the domestic wiretapping program may have backfired by sending our top counterterrorism agencies on wild-goose chases, thus making our country less secure instead of making our country more secure.

We know that one member of the Foreign Intelligence Surveillance Court, Judge James Robertson, resigned--yes, resigned--4 days after the New York Times first detailed the NSA's warrantless--warrantless--domestic surveillance. We know that only the chief judge of the FISA Court, the secret court charged with approving requests to conduct domestic surveillance, had any knowledge of this clandestine wiretapping program. The other judges, who are sworn to strict secrecy, learned of the program just as many of our citizens did--through reports in the press. Yes, thank God for a free press.

We know that although most of the judges of the Foreign Intelligence Surveillance Court were kept in the dark about the program, at least one of the judges was tipped off by an attorney within the Department of Justice that some of the information being presented to the court to secure warrants was improperly obtained, meaning the Government had apparently circumvented a court-ordered screening process to eliminate tainted evidence.

We know that in a February 28 letter to Senate Judiciary Committee Chairman ARLEN SPECTER, Attorney General Gonzales admitted that the Justice Department's legal justification for the wiretaps has ``evolved over time.''

What does that mean? Does it mean that there actually was no legal basis for the NSA to spy on American citizens when it first began the surveillance? Does it mean the Department had to gin up some legal basis for the spying once the program became public? Does it mean the administration's reliance on the use-of-force resolution to justify its snooping was simply a ploy--just a ploy--an ``after the fact'' face-saving device meant to give the administration cover for having violated the civil liberties of Americans?

We know that earlier this week, 18 Members of the House of Representatives sent a letter to President Bush requesting that he appoint a special counsel to investigate the NSA's warrantless surveillance of our citizens. In their letter, the House Members noted that with no clear information coming from the administration, they and all of America have been forced to rely primarily on press reports to determine the scope of the NSA's activities.

With so many questions unanswered by the administration, it is absolutely imperative that there be an objective investigation of this program and any violations of law that may have occurred.

We are in a supercharged political year--we know that, you know that, everybody knows that--an election year for one-third of the Senate, including this Senator from West Virginia, and for the entire House of Representatives. And the Senate Intelligence Committee as of today has refused to initiate a serious investigation into this matter. But an investigation has to go forward. The efficacy of our laws and our Constitution is at stake. That is why I am proposing legislation to establish a nonpartisan commission to review and investigate domestic surveillance in America, along with serious allegations of abuse. In this way, we will be sure to safeguard our first and fourth amendment rights as enumerated in this Constitution, as well as evaluate the actual effectiveness of such programs in combating terrorist threats.

James Madison wrote in his essay, ``Political Reflections,'' that ``[t]he fetters''--the fetters, f-e-t-t-e-r-s--``[t]he fetters imposed on liberty at home have ever been forged out of the weapons provided for defense against real, pretended, or imaginary dangers from abroad.

No one is suggesting that the threat of terrorist attacks is anything but a real threat, and one that must be of the Congress's utmost priority. But the suggestion that the American people would be safer in their homes if they just forego their constitutionally protected rights is a deliberately deceptive assertion that may forge the fetters that bind law-abiding citizens. Make no mistake about it: It is these ill-conceived strictures that may ultimately destroy precious liberties.

In fact, it is because our forefathers were fearful of re-creating the same tyrannous form of government from which many of them had fled, that the Bill of Rights--the Bill of Rights, those first 10 amendments--the Bill of Rights was added to the Constitution to better secure for all time--all time--the freedom from oppression that ever looms from an overly powerful executive. Get that. Get that. Let me say that again. It was because our forefathers, thank God, were fearful of re-creating the same tyrannous, the same tyrannical form of government from which many of them had fled that the Bill of Rights was added to the Constitution to better secure, for all time, the freedom from oppression that ever looms from an overly powerful executive. And you better believe it. You better believe it. Hear me. Hear me now. I will always speak out against an all-powerful executive, under either party.

In a climate of fear, liberties have been sacrificed time and again under the guise of keeping the Nation from harm. Fear. Yes, fear is a powerful tool for manipulation; useful for easing the American people out of their liberties and into submission. Fear. When the public is confronted with a situation, real or imagined, that inspires fear, the public rightfully look to their leaders--look to their leaders, Mr. President--for protection from foreboding consequences. The claim of wartime necessity always strengthens the hands of a President. Let me say that again. The claim of wartime necessity always strengthens a President, any President, Republican or Democrat. And often facts are sealed from the prying eyes of Congress by a purported need for secrecy.

But Senators, and that includes this Senator from West Virginia, Senators have a sworn duty--a sworn duty, a sworn duty--sworn right up there at that desk with their hand on the Bible--the holy Bible, the holy Bible, the holy Bible--with their hand on the Bible to check executive power. We have to be on guard every moment of every day. The executive branch, whether it be Democratic or Republican, is always reaching--always reaching, always reaching--always grabbing more power, more power, more power, and we have to be on guard. We have a sworn duty to check executive power and, as long as I live, I am going to stand for the checking of the executive power; I don't care whether it is a Democrat or Republican in the White House or an Independent. It makes no difference. We have a sworn duty. We swear. We put our hand on the Bible before God and man, and we swear to check executive power at all times--at all times--in times of crisis or otherwise. Each of us here, and there are 100 here, and each of this 100, 100 Senators, we are each bound to defend the Constitution and each bound to defend the liberties that the Constitution gives to all Americans, at all times, in times of peace and in times of war.

History has shown us many times that a climate of fear can take a hefty toll on our freedoms. That is your freedoms. That is your freedoms. That is your freedoms. Worse still are liberties surrendered in vain, resulting in little added security.

There is no doubt that constitutional freedoms will never be abolished in one fell swoop--never--for the American people cherish their freedoms, and they would not tolerate such a loss if they could perceive it; if they could see it coming, if they could hear it, if they could feel it, if they could perceive it. But the erosion of freedom rarely comes as an all-out frontal assault; rather, it is gradual, noxious, creeping, cloaked in secrecy and glossed over by reassurances of greater security.

The American people are a people born of sacrifice, and the sacrifices that the American people are willing to endure speak well of the tenacity and the strength that makes the United States of America what it is. Some may be tempted to accept on blind faith the administration's--any administration's, any administration's--promise of increased security, and they may see it as a duty to capitulate their rights for that flimsy promise. May we all pause to reflect on the hard-won liberties--the hard-won liberties--for which earlier generations fought and died. Remember Nathan Hale. He died. He regretted that he had but one life to give, to lose, one life to lose for his country. Remember Patrick Henry: ``Give me liberty or give me death,'' he said. John Paul Jones: ``We have only begun to fight.''

So may we all pause to reflect, as we have just done, on the hard-won liberties for which earlier generations fought and died before we easily accept convincing rhetoric. Rhetoric is cheap. Talk is cheap. To suggest that innocent Americans surrender rights to preserve freedom is a false choice. It is also a slippery slope, one that is fraught with ever more secrecy and the certainty of egregious abuses of our Bill of Rights and of our laws over time.

The commission that I propose would determine how to best protect the homeland, as well as the most effective ways of gathering needed intelligence. It will examine the procedures for the NSA's use and retention of intelligence obtained without warrants, and the method and scope of dissemination of such information to other agencies. It will investigate any questions raised by the Foreign Intelligence Surveillance Court concerning the legality of the domestic spying program. It will examine the obligation of the President--do you get that? Do you hear that, Mr. President? Republican or Democrat. It will examine the obligation of the President to brief Members of Congress--not just one or two or three or four--on warrantless surveillance of American citizens. It will lift the fog--lift the fog--of secrecy and clandestine government activity misaimed at law-abiding citizens and perhaps, most importantly, it will shed much needed sunshine--let the sunshine in--much needed sunshine on any unlawful or unconstitutional executive--executive, executive intrusions into the lives of ordinary Americans.

39 . STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - March 02, 2006)

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