[Congressional Record Volume 152, Number 15 (Thursday, February 9, 2006)]
[Senate]
[Pages S877-S879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NSA TERRORIST SURVEILLANCE PROGRAM

  Mr. SESSIONS. Mr. President, last night I was in my office in the 
Russell Senate Office Building and we were evacuated to the parking 
deck, and following the excellent leadership of the Capitol Police, 
people responded professionally and well without any undue alarm and 
showed good discipline and good spirits.
  I point that out to ask, have we forgotten there is an enemy out 
there who desires to attack us, desires to attack our Nation's Capitol, 
or any other spot in our country, desires to cause us harm, and that we 
are spending billions of dollars, that some of the best people in this 
country are working night and day, like our Capitol Police, in 
localities all over this country to protect us? From local sheriffs, 
police officers, State police officers, the FBI, the CIA, the Customs 
Service, the Immigration Service, to all the agencies that are involved 
in protecting us, they are out there working their hearts out, and 
sometimes I think we in this body have gotten too comfortable about 
this. We have been the subject of a declaration of war by al-Qaida. Bin 
Laden has declared war on the United States. He has asserted it is his 
right and, indeed, the duty of his followers to attack Americans and 
even civilian targets, men, women and children.
  We have authorized the U.S. Government, the President, and the 
executive branch to exercise certain rights because it is war. It is 
not a criminal matter. If we capture our enemies, they are not entitled 
to a trial in the southern district of New York because they are 
prisoners of war. They are entitled to be held without trial as every 
prisoner of war since the beginning of the Republic and the rules of 
war have been instituted. They are held without trial. In the Hamdi 
case, the U.S. Supreme Court stated that even an American citizen 
engaged in the war against the United States can be held without trial 
as an enemy combatant against the United States because it is not a 
criminal matter. A state has one primary responsibility, and that is to 
maintain its existence against those forces that would destroy it.
  I would ask if anyone thinks we would have any liberties at all if 
bin Laden ran this country. He would tell you what clothes to put on in 
the morning. We would have people not only not being free, they 
wouldn't be able to drive an automobile--women would not be--under his 
mentality.
  This is a serious question, and we need to respond to the challenge 
to this country in an effective way consistent with our heritage of 
laws and liberties. There is no doubt about that.
  Secretary Rumsfeld has pointed out recently something that is so 
obvious, but we should think about it. He said the military challenge 
today is to find, fix, and finish the enemy. He said there is no doubt 
if we target and develop a plan, we can finish them successfully. We 
have that military capability. There is no military in the world 
capable of destroying the military of this United States.
  I ask you to remember what we heard after 9/11. What we heard was our 
intelligence is weak. What we heard was we did not have enough 
intelligence, that we did not have enough information to find the 
enemy; that they had sleeper cells in this country and those sleeper 
cells were activated by phone calls from Afghanistan and bin Ladin over 
here to encourage them to step forward to carry out the events that led 
to September 11. Isn't that what happened? And we had this spasm of 
self-flagellation about intelligence and how we operate our 
intelligence community. Our job unfortunately was based on the fact 
that there were failures and we could have done better, had we had 
interceptions of some of those 18 responsible for 9/11 prior to 9/11, 
that if we had been able to listen to those conversations, we could 
well possibly have taken steps to avoid that and 3,000 American 
citizens would have civil liberties today. Now they have none because 
they are no longer with us.
  We have to ask those questions and go back and look at the history of 
our country and what is the legitimate power of the President and our 
forces in a time of war.
  What do our intelligence leaders tell us about the capability of the 
National Security Agency as it has dealt with the ability to intercept 
international phone calls involving al-Qaida members? What do they tell 
us? What do all three of our top intelligence people

[[Page S878]]

say? The National Intelligence Director John Negroponte testified last 
Thursday before the Intelligence Committee and he stated:

       This was not about domestic surveillance. It was about 
     dealing with the international terrorist threat in the most 
     agile and effective way possible.

  FBI Director Robert Mueller testified last Thursday as well, stating 
to the Senate Intelligence Committee:

       We get a number of leads from the NSA from a number of 
     programs, including the program that's under discussion 
     today.

  The FBI Director is saying we get a number of leads from this program 
under discussion today.

       And I can say that leads from that program have been 
     valuable in identifying would-be terrorists in the United 
     States, individuals who were providing material support to 
     terrorists.

  Let me interject here. I was a Federal prosecutor for a long time. I 
dealt with a lot of drug gangs and some organized crime-type groups. 
They are pretty close-knit organizations. Sometimes you don't even know 
they exist. Then all of a sudden you have the ability to identify them 
and penetrate the organization and gain information against them, and 
all of a sudden you realize right in your own community there is a 
major drug-dealing gang or a major organized crime network. So one tip, 
one lead from an intercepted phone call, can identify a sleeper cell in 
any community in America. I kid you not. That is the way law 
enforcement works.
  How do you get a warrant to surveil the sleeper cell of terrorists in 
the United States? Oftentimes it is this kind of intercept on a 
national security call from foreign sources here that causes us to have 
the information that leads to the identification of a group bent on 
destroying our country.
  CIA Director Porter Goss testified to the Intelligence Committee:

       I'm sorry to tell you--

  And I hope the American people listen to this--

       I'm sorry to tell you that the damage has been very severe 
     to our capabilities to carry out our mission. . . . I use the 
     words ``very severe'' intentionally. That is my belief and I 
     think the evidence will show that.

  He is talking about the revealing to the world our intelligence 
capabilities at NSA.
  He goes on to say:

       When I start talking about the disruption to our plans, 
     things that we have under way that are being disrupted 
     because of releases to the press or public discussion; when I 
     talk about the risk to access, the sources or methods that 
     are no longer viable or usable or less effective by a large 
     degree; when I talk about the erosion of confidence in our 
     working partners overseas, I'm stung to the quick when I get 
     questions from my professional counterparts saying, ``Mr. 
     Goss, can't you Americans keep a secret?''

  How can we expect them to share intelligence with us if you pick it 
up in the newspapers? How can we have techniques of this kind and have 
them leaked to the press?
  I would say it is time for us to reevaluate how we do business. It is 
time for us to realize that we are in a war and that we are entitled to 
conduct that war and to win that war. Our military and our intelligence 
agencies have been charged by us--indeed, they have been criticized by 
us for not being effective enough in this effort.
  I will conclude. I see my colleague from Missouri is here, and he 
knows this issue very well. I would like to yield to him.
  I will conclude with this thought: Please note, Americans, that our 
military and intelligence agencies have every right to intercept 
foreign phone calls between two foreign sources. That has never been in 
dispute. The question we have is whether the authorization of force and 
the inherent power of the President allows warrantless surveillance of 
an international call that is connected to the group we are at war 
with, al-Qaida, that calls into the United States. To say we can't do 
that will lead to this weird result.
  We intercept an international phone call that has not been connected 
to the United States and we discover information that they are planning 
an attack on France, we can call France and tell them. If they have a 
plan that we discover that they are going to attack Canada, we can call 
them and warn them--or New Zealand or Mexico or any other of our allies 
and friends around the world. But if the call is into the United States 
from al-Qaida, we can't intercept that call, we can't use that 
capability to defend Americans.
  I believe that is not logical. The American people don't agree with 
it. They support and expect our military to carry on these activities. 
I hope and I believe they will be continued.
  Why do I believe they will be continued? Because despite the fact 
that we have told the world of this capability and severely damaged our 
capability, not one Member of this Congress that I know of has said we 
should stop it. If it is so evil and bad, why do they say it does not 
need to be stopped?
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I ask unanimous consent to speak as if in 
morning business for 8 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. BOND. Mr. President, I certainly support the very powerful words 
of my colleague from Alabama. He has pointed out many of the compelling 
reasons for this program.
  I rise today to discuss this vitally important program for protecting 
our national security, and I do so regrettably because this is an open 
session on the floor of the Senate. This program, of course, is known 
as the NSA terrorist surveillance program. I say I discuss it 
regrettably because it is to the detriment of our Nation that this 
program was leaked to the media and has now been discussed openly for 
months.
  I submit to you that the year 2005, in intelligence and national 
security circles, will go down in history as the year of the leak. I 
will not repeat the full litany of those leaks, but we have all been 
continually reminded about the most damaging one.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. BOND. Yes.
  Mr. SESSIONS. I would like to say how much I appreciate his 
leadership. I note that Senator Bond is a senior Member of this Senate 
and has served on the Intelligence Committee. He has a son serving in 
the Marine Corps in Iraq right now in harm's way defending this 
country. He is a brilliant lawyer, made the highest score on the 
constitutional law test--I happen to know this--when he was at the 
University of Virginia. I think the American people need to listen to 
what he says about this issue.
  I guess that is my question. Otherwise, I yield the floor.
  Mr. BOND. Mr. President, I say thank you to the Senator from Alabama.

  Let me get back to the remarks.
  For example, the allegation that the United States is running some 
secret prisons in Europe has caused European nations and other allies 
to question their cooperation with us on the war on terror for fear of 
international retribution; the barrage of books and articles disclosing 
alleged classified operations, like James Risen's book, ``State of 
War,'' where he takes every supposed leak he can find and churns it out 
for profit in a book; and the NSA terrorist surveillance program which 
tips off terrorists to our early warning program.
  On February 2, CIA Director Goss testified to Congress and the 
Intelligence Committee in open session about the damage to our national 
security. I asked him if these leaks had a significant impact on our 
capabilities to carry out our mission. And to quote him:

       I use the words ``very severe'' intentionally. That is my 
     belief.

  He went on to say that foreign leaders chide him that the United 
States cannot keep a secret and that we have lost the confidence of 
many in the world who were desiring to assist us in the global war on 
terror. Do those who leak classified information with reckless abandon 
realize they are potentially aiding and abetting the enemy by allowing 
the enemy advanced warning of how to avoid our defenses as we seek to 
prevent another 9/11?
  Since so many have taken political advantage of the leak on the NSA 
terrorist surveillance program, the administration and those of us who 
agree with the concept of the program are now forced to speak openly to 
defend it to make sure Congress does not throw this vital program out 
with the bath water while reviewing it. Some say the program is illegal 
and even unconstitutional. How do they figure? The President has the 
inherent constitutional

[[Page S879]]

authority, so held by the courts, to conduct ``warrantless'' 
surveillance when it is reasonable for the surveillance for foreign 
intelligence purposes. This is a constitutional principle which has 
been established for centuries. Go back to the writings of our Founding 
Fathers, and from our first President, George Washington, to our 
current, President George Bush. Presidents have intercepted 
communications to determine the plans and intentions of our enemies.
  A steady stream of Federal court cases has confirmed this 
Presidential authority, as Attorney General Gonzales pointed out on 
Monday before the Senate Judiciary Committee: In the face of 
overwhelming evidence for the President's authority, opponents retort 
that the President must then be breaking the law by violating the 1978 
Foreign Intelligence Surveillance Act, known as FISA. But--and this is 
important--Congress cannot extinguish the President's constitutional 
authority by passing a law.
  We in this body cannot take away the powers the Constitution gives 
the President. If the law is read in such a way as to encroach upon his 
constitutional authority, then I question whether that part of the FISA 
act would be constitutional.
  This is not the first time a President has faced the issue of 
exercising his inherent constitutional powers for foreign intelligence 
surveillance in view of legislation that could be interpreted as 
infringing on that authority.
  In 1940, President Roosevelt wrote to Attorney General Robert Jackson 
that despite section 605 of the Communications Act of 1934, and in this 
instance despite a Supreme Court ruling upholding the prohibition on 
electronic surveillance, President Roosevelt said he believed he had 
the inherent constitutional authority to authorize the Attorney General 
to ``secure information by listening devices direct to the conversation 
or other communications of persons suspected of subversive activities 
against the government of the United States, including suspected 
spies.''
  So does the President have carte blanche with respect to foreign 
intelligence surveillance? The answer is clearly no. Under the fourth 
amendment to the Constitution, the surveillance has to be 
``reasonable,'' and it does not require a warrant. In the context of a 
war against al-Qaida and those who would do great harm by attacks on 
innocent American civilians within our country and with a 
constitutional resolution authorizing the use of ``all necessary and 
appropriate force'' to prevent attacks, who is the best to determine 
what is and isn't ``reasonable''?
  When surveying communications in real time, who is best to make that 
determination? A judge or a lawyer or an intelligence analyst who has 
spent his or her professional life observing, listening, studying, and 
tracking the terrorist personalities which make up groups such as al-
Qaida? To me the answer is obvious: the analyst.
  Consider this: If someone listened to your voice on a telephone call, 
who would be the best person to assess it by the voice intonation and 
word usage, whether it is your voice on the other end or a lawyer or 
someone who knows you well? Of course, the answer is the person who 
knows you. And I submit that the Americans who know these terrorist 
personalities better than anyone else are the analysts who have spent 
endless days over the past 4 years studying them.
  Again, do the analysts have carte blanche to eavesdrop on 
international communications coming into or out of the United States to 
known suspected terrorists? No. Their decisions are reviewed by 
supervisors, and the program is reviewed by the NSA inspector general, 
the NSA general counsel, the White House Counsel, and numerous lawyers 
at the Justice Department who are ready to blow the whistle if they see 
anybody stepping out of line. The Attorney General also reviews the 
program, and the President reauthorizes it every 45 days with the 
determination that al-Qaida continues to pose a significant threat.
  Did the President keep the Congress in the dark? No, he didn't. He 
briefed the Congress in a manner consistent with the practice of 
Presidents over the past century. He briefed leaders of both parties in 
the House and Senate and the two leaders on each Intelligence 
Committee, Democrats and Republicans.
  These leaders were elected by their constituents to represent them in 
Congress and elected or appointed by their parties to serve in these 
incredibly important positions, so if any one of them ever questioned 
the legality of this program, they had the responsibility to bring the 
matter to the leadership, discuss it with the administration, and if 
necessary to cut off funding for the program through congressional 
authority.
  The reason the President briefed the Congress was to afford them the 
opportunity to do exactly that. Did anyone do that? No. There was a 
carefully couched letter written that simply expressed concern. There 
was no followup, no action taken, and no mention of it at all during 
subsequent program briefings, according to public statements by those 
in attendance.
  Some Members of Congress may feel slighted because they were not 
briefed on the program. I am on the Senate Intelligence Committee. Do I 
feel slighted? Absolutely not. To the contrary, I recognize that the 
President has to keep these very important programs top secret, which 
the President is doing to protect my family, my constituents, and 
myself. That is his responsibility.
  The bottom line is that I believe congressional oversight is a vital 
aspect of ensuring the proper execution of matters involving national 
security, and I believe there was adequate oversight. We are not 
talking about the U.S. Government listening to phone calls from me to 
you or from my constituents in Missouri to their relatives in or out of 
State. We are talking about our best intelligence officials having the 
ability to assess whether al-Qaida affiliates are communicating 
internationally where one end of the communication takes place inside 
the United States and the other end takes place outside the United 
States, maybe discussing another attack like 9/11 on America.
  These are times to stand up in arms over our civil liberties. I will 
do so when I believe they are infringed upon. This is not one.

  I thank my colleagues for their indulgence, and I yield the floor.
  Mr. BENNETT. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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