[Congressional Record Volume 152, Number 16 (Friday, February 10, 2006)]
[Senate]
[Pages S1067-S1070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            NSA WIRETAPPING

  Mr. SESSIONS. Mr. President, I wish to share some thoughts about NSA, 
the National Security Agency, and the wiretaps that have taken place, 
the brouhaha that has occurred in the press and in Congress, and why I 
believe this program is necessary, why I believe it is legal.
  I know the Presiding Officer has been, perhaps, the most eloquent 
spokesman in the Senate on this subject. He believes this is legal and 
proper and has articulated those views very ably.
  I shared some thoughts the other day about why it is so important, 
why there is much political goings-on here instead of substance, and 
why we need to continue with the program. I would like to share a few 
more thoughts today about the care the administration took to be 
respectful of Congress, to not overreach their legal authority, and how 
they worked to keep Congress briefed on what the program was about.
  The administration officials briefed congressional leaders more than 
a dozen times on the terrorist surveillance program. More than a dozen 
times they went before the proper senior officials of the U.S. 
Congress--in the House and Senate, both Republican and Democrat--to 
advise them about what this program was about and what they were doing. 
That includes the majority leader of the Senate, who is Republican, the 
Democratic leader, Mr. Reid, and before him, Mr. Daschle. In the House, 
it includes the Speaker of the House and the Democratic leader. It 
includes the chairman of the House Intelligence Committee and the 
ranking Democrat on the House Intelligence Committee; the Senate 
Intelligence Committee chairman and the ranking Democrat on the Senate 
Intelligence Committee. Those are what they call the big 8--or The 8. 
The Intelligence Committees deal with these highly classified programs 
involving national security.

[[Page S1068]]

  We have always understood that you cannot tell 100 Senators and 435 
Congressmen a bunch of secrets because if you do, they will leak. As a 
matter of fact, I am sometimes even amazed the eight can keep a secret, 
but apparently they have done well, at least until the recent leak, and 
we don't know where it came from. It may well have come from another 
source.
  These eight are briefed on the program. These are the top people in 
Congress. They are not children. They are not people who can be pushed 
around. They are grownups holding particularly high offices. If they 
have a problem with the program, they are not children; they know when 
it is time for them to speak up, if they have an objection, to raise 
it, and they did not object. There were no objections made, no call to 
stop this program by any of those eight people who, over a period of 
years, were informed.
  It actually is more than eight. As I noted, we have had two 
Democratic leaders, Senator Daschle and Senator Reid. We had Senator 
Trent Lott, as well as Senator Bill Frist. We had Senator Richard 
Shelby, as well as Senator Pat Roberts. So there are 15 members who 
have been briefed on it and had an opportunity to object and have not 
objected.
  Then all this stuff hits the fan in the newspapers and everybody gets 
excited about it. We have some Democrats saying it is illegal and that 
it ought to be stopped. They are saying it is illegal. But if you 
noticed one word they didn't utilize, it was ``stop.''

  They caused all this fuss revealing to the world many of the 
capabilities of the system, making the system less effective than it 
could be. In fact, Porter Goss, the head of the CIA, has said it has 
rendered severe damage to our intelligence capability. They did not say 
stop. Nobody is saying stop. Nobody has submitted a resolution in the 
Senate to say stop. Nobody has introduced legislation, which they have 
every right to do, and which we in Congress have a right to do, to cut 
off funds for this program.
  We could end this program tomorrow. All we would have to do is come 
together as a Congress and say there shall be no Federal dollars 
expended to carry out a program of surveillance such as this. They 
would end it just like that.
  That has not been proposed. Why has it not been proposed? Because it 
is idiotic to stop a program such as this. How stupid can we be if we 
eliminate a program such as this?
  There is an article in the Washington Post--it is breathtaking 
really--in which Senator Biden said:

       I don't understand why you would limit your eavesdropping 
     to only foreign conversations,'' said Senator Biden to 
     Attorney General Gonzales.

  The article seems to suggest, after complaining about the program, 
they should have wiretapped more people when both ends of the 
conversation were in the United States.
  Perhaps we should consider that. I think there is a realistic basis 
to conclude that the President has that power if it is relevant to the 
security of the United States of America. You just have to read through 
the lines. I was not in the meetings. I am on the Armed Services 
Committee and I am on the Judiciary Committee where we had a lot of 
these discussions and hearings. The President and his team at one point 
said: What about legislation, can we pass legislation?
  All the people who apparently discussed this matter were in uniform 
agreement that if we brought a bill up to specifically authorize this 
kind of wiretapping, it would cause a lot of discussion in the Senate, 
and it would reveal to the world the program. So the President 
basically said: I believe under the authorization of force you gave me 
to act against al-Qaida, who has declared a war on us and we have 
declared a war on them, I have the power to do that on international 
calls; I am confident in that.
  His lawyers have written opinions and briefs. They researched the 
history, and he concluded that he did, and that is what he basically 
told the eight Members of Congress, and they did not object. They could 
have said: No, you have to introduce legislation. That is a reasonable 
statement for any Member of Congress to make to the executive branch: 
Mr. President, if you think we can write legislation that would allow 
technology like this to be legal, explicitly by statute, we will have 
to write it in such a way that it will obviously reveal to those we are 
trying to surveil what we are doing and what our capabilities are, and 
it will undermine the program.
  President Bush told us straight up in more than one speech: It is my 
responsibility to defend the people of the United States of America. 
That is what he said his responsibility was, and I believed it and the 
American people believed it and we said yes.
  He said: I am going to use every tool I have to defend this country. 
We said yes, and this is one of the tools he has, and he decided to use 
it. I think he did so in a very appropriate way. Congress has been 
advised of that.
  Some have said it broke the FISA law; it did not comply with FISA. 
Attorney General Gonzales made a very nice point, a very important 
point. FISA claims to be the exclusive means of electronic 
surveillance, and people have cited that principle, but it actually 
contains numerous exceptions, such as a 15-day exception after a 
declaration of war in section 111 of FISA, a 72-hour exception for 
emergency surveillance under section 105, and finally there is an 
exception for surveillance authorized by statute in section 109.
  The idea clearly is that there would be further statutes passed that 
would expand the FISA law as circumstances develop.
  Then Congress, after 9/11, passed the authorization for use of 
military force against those whom the President finds are responsible 
for attacking us on 9/11. He has defined that narrowly as al-Qaida. We 
authorized the President to use all necessary and appropriate powers to 
surveil or to attack al-Qaida, to go after al-Qaida.
  As the U.S. Supreme Court in Hamdi declared, they said the U.S. 
military can capture, detain, lock up, put in jail as a prisoner of war 
an American citizen who has associated himself with al-Qaida in the war 
against the United States without a trial. We have authorized our 
military under the authorization to use force, to go out and kill the 
al-Qaida people wherever they are in the world as they are deemed to be 
at war against us. So it stretches a bit to say you can't intercept 
their telephone calls. You can lock them up without trial, put them in 
jail and restrain their freedom--even an American citizen, you can kill 
them on the battlefield without a trial or a Miranda warning, but you 
cannot surveil their phone calls.

  What the Supreme Court said in Hamdi was that although the 
authorization to use force did not specifically authorize locking up 
people and holding them as prisoners of war, it is a natural incident 
to the power given to the President to conduct war. The power to 
conduct war is also the power to detain and restrain people who are at 
war against you.
  Attorney General Gonzales has made a very compelling argument. How 
much less of an invasion of a person's liberty is it to listen to their 
phone conversation than it is to lock them up in jail? So a natural 
incident to the conduct of a military operation, since the beginning of 
warfare--certainly in modern times--has been surveillance and 
intelligence-gathering operations. We worked tirelessly to break the 
German code. We worked tirelessly and broke the Japanese code. We were 
able to listen in on their conversations. That is what you do against 
an enemy; you try to find out what they are doing and how they are 
planning it so you can stop them.
  I am confident a rational interpretation of the authorization to use 
force to go after somebody militarily includes the power to detain 
prisoners, as the Supreme Court has said, and also would include the 
power to intercept the communications of the enemy.
  This is consistent. Maybe ``amendment'' is not the right word to 
FISA, but it is a statute passed in harmony with the concept of FISA 
when it was passed. It is a subsequent statute that would take priority 
over the past statute.
  Another argument is the past statute was more explicit about these 
intelligence matters and said this was the sole way to do it. But I 
don't think you can interpret an authorization to go to war in any way 
that would prohibit intelligence-gathering operations. Indeed, the 
Hamdi case held that previous statutes that said you could not

[[Page S1069]]

lock people up under these circumstances were overridden by the 
authorization to use force because a necessary incident to utilizing 
military action against the enemy is to lock up people you capture.
  There is also, I believe, a good argument to be made that the 
President has inherent authority as Commander in Chief and a duty 
consistent with that authority and responsibility to protect the people 
of the United States. Every Federal court to have decided the issue has 
held--including the Third Circuit, Fourth Circuit, Fifth Circuit Courts 
of Appeals--that this is so. These cases involve surveillance that 
occurred before the FISA was passed, true; but in 2002 a FISA court of 
review relied on those cases. The FISA Court, created by FISA, relied 
on those previous cases to make this ruling:

       FISA could not encroach on the President's constitutional 
     power.

  That is In Re Sealed Case, in 2002.
  Former Attorney General Griffin Bell, himself a long-time Federal 
judge who was called in to be President Jimmy Carter's Attorney General 
when FISA was being considered, was asked about this and the 
President's inherent power. Judge Bell, if you have known him, in that 
inimitable way he has, said, ``We can't change the Constitution by 
agreement.''
  I would add, a statute can't amend the Constitution. FISA cannot 
eliminate the powers of the President, those inherent powers to defend 
America or to authorize electronic surveillance of an enemy with whom 
we are in combat, al-Qaida, in a time of war. Authorization for force, 
the President's inherent power--these are clear, I believe, 
authorizations of force.
  We will have a lot of debate about it. We will have a lot of 
discussion about it. But as you look at it more and more, I think 
people are becoming confident that these powers exist. Now we have a 
recent article saying, Why don't you do even more, if you have this 
power?
  Should we pass legislation? Let's talk about it. I think one thing we 
need to take out of the FISA law is the pretension that it represents 
the only authority the President has in these areas; that every act has 
to be done within the FISA. To that extent I believe it is clearly 
unconstitutional. Those words are not legitimate. They need to come 
out. We should not pretend to say we have the exclusive power in the 
legislative branch to override the President's responsibility to defend 
this country.
  Then if there are other ways we can write the statute, I will discuss 
it. But I frankly am not sure it is going to be a successful 
enterprise. It is going to be difficult to write a statute that would 
draw the line on where the President's authority exists and where it 
does not. Tell you what, I get nervous, I get a little worried when we 
at a given point in history start writing a statute to define the 
ultimate power of the President and propose to contain that power 
because you never know when we will have a problem with it.
  The Church Committee came out with this wall, a wall of separation 
between the CIA and the FBI, and many believed that wall was 
responsible for the lack of sharing of information between the FBI and 
CIA. They thought they were doing it for constitutional reasons. They 
thought they were doing a good thing. But we realized that was a 
disaster and we tore that wall down many years later, 20 years later, 
as a result of the experience we had with 9/11. So I would express my 
concern about statutes dealing with treatment of prisoners or 
surveillance, that we need to be careful about how we do that. I think 
the American people believe there should be some flexibility for the 
President in matters that could relate to our national security and the 
lives of our own citizens. We need to be careful as we go forward with 
that.
  But to date, we can say a couple of things with certainty: that the 
leaders of the House and the Senate were informed fully of what the 
President was doing. They did not object. And the Attorney General has 
made a compelling case, I believe, that he was authorized to do these 
national security intercepts, both by the authorization to use force 
and by the inherent powers given to the President. I would note, also, 
that the President's narrow use of a power is something that should be 
appreciated by the critics. He said it can only involve a phone call 
that is international and a phone call from al-Qaida, in which one 
member of the call was al-Qaida.
  If we do those two things, the average American can be sure they are 
not getting caught up in it. To hear the news articles, of course, it 
was domestic spying. That is far from the reality of this situation.
  I ask unanimous consent that the recent editorials of the Washington 
Times and the Washington Post be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Feb. 10, 2006]

                          The Asbestos Debate

       There are three questions the Senate should focus on as it 
     considers the Fairness in Asbestos Injury Resolution Act: 
     Will the proposed $140 billion asbestos trust fund actually 
     cost $140 billion, or will its fine print eventually require 
     it to payout much more? Can the medical criteria be tightened 
     to ensure that only people who have genuinely suffered harm 
     from asbestos are compensated? And how can one minimize the 
     chances of some future Congress putting taxpayers on the hook 
     for likely overruns?
       This bill should pass; Sen. Arlen Specter, Pennsylvania 
     Republican, and Patrick Leahy, Vermont Democrat, are due 
     accolades for getting this far on a longstanding problem that 
     has befuddled everyone for decades. Many asbestos victims 
     have suffered or died of mesothelioma or other illnesses 
     while the courts and Washington struggled with a resolution. 
     The victims and their families deserve to be made whole.
       One good sign is the 98-1 Senate vote Tuesday to move 
     forward, indicating broad agreement that the FAIR Act is 
     acceptable as a starting point for the full Senate's debate. 
     The other is trepidation from Senate Minority Leader Harry 
     Reid: After making noises about a filibuster, Mr. Reid said 
     the bill benefited ``a few large companies'' while supposedly 
     leaving the little guy in the lurch. Really? Why, then, do 
     insurance giants AllState and AIG oppose the bill? Why are 
     many plaintiffs anxious to see it pass? In reality the big 
     guys speak through Mr. Reid--in this case, unscrupulous 
     lawyers who stand to profit greatly from keeping asbestos 
     cases in the courts. Under the FAIR Act, fees for lawyers top 
     out at five percent of the award--far less than they get in 
     court.
       Of course, there are good reasons to worry about the 
     ``little guy''--just not the ones Mr. Reid suggests. If 
     previous federal ``trust fund'' schemes are any indication, 
     this fund could bleed billions of dollars only a few years 
     from now and demand either a federal bailout or a return to 
     the courts. The first is bad for the average taxpayer; the 
     other is bad for most claimants. As for the first, the 
     nonpartisan National Taxpayers Union opposes the trust fund 
     on the grounds that a bust is likely. It calls the fund ``a 
     fiscal time bomb.'' The second would land claimants back in 
     limbo in courts (to the great pleasure of asbestos lawyers, 
     of course, who clog up the system with questionable cases).
       The precedents show how daunting this month's debate will 
     be. As we've reported previously, only one of the many 
     smaller trust funds created over the years has been able to 
     meet its obligations, according to Francine Rabinovitz, a 
     trust-fund expert at the University of Southern California. 
     Last year she told Sens. Jon Kyl, Arizona Republican, and Tom 
     Coburn, Oklahoma Republican, that ``none of the bankruptcy 
     trusts created prior to 2002 have been able to pay over the 
     life anywhere close to 50 percent of the liquidated value of 
     qualifying claims.'' Claims against the Johns Manville 
     bankruptcy fund--one flawed effort to solve asbestos-injury 
     claims--outstripped resources by a factor of 20.
       That begs some questions. Will this $140 billion fund 
     ``sunset'' in three years like its conservative critics say 
     it will? Even the Congressional Budget Office predicts it 
     will bleed $6.5 billion a year by 2015.
       What about the medical criteria? A group of conservative 
     senators on the Judiciary Committee worried about the fund's 
     solvency cited this among concerns when they sent the bill to 
     the Senate floor last year. Sens. Jon Kyl, Arizona 
     Republican, and Tom Coburn, Oklahoma Republican, said that 
     they were ``deeply concerned that this fund will run out of 
     money and prove unable to pay all qualifying claimants.''
       This debate will play out fully in the Senate over the 
     coming days. In the meantime, it's worth pointing out what 
     the FAIR Act offers what nothing previously has: A light at 
     the end of the tunnel for claimants. Under FAIR, compensation 
     ranges from $25,000 for people who suffer breathing 
     difficulties to as much as $1.1 million for victims of the 
     deadly cancer mesothelioma. It has taken long enough to get 
     this far. The Senate is close to leading the way out.
                                  ____


                [From washingtonpost.com, Feb. 10, 2006]

                          Forward on Asbestos

       In a triumph of good sense and bipartisan cooperation, the 
     Senate voted on Tuesday to go forward with a bill that would 
     fix the broken asbestos litigation system. Hundreds of 
     thousands of asbestos injury claims have already landed in 
     the courts, contributing to the bankruptcy of more than 70 
     companies.

[[Page S1070]]

     Without reform, this process will drag on, triggering the 
     bankruptcy of yet more firms, many of which have only tenuous 
     asbestos connections, because the main firms responsible have 
     already gone under. Meanwhile, many who are ill from 
     asbestos-related diseases won't be able to get timely 
     compensation or, in some cases, any compensation. Unless the 
     bill passes, Navy veterans, for example, will go 
     uncompensated for diseases caused by asbestos on ships. 
     Veterans are not allowed to sue the government, and many of 
     the shipbuilders are long since bankrupt.
       The bill will be debated and amended, and it may face a 
     second attempted filibuster before it gets a vote. Some 
     amendment may be reasonable at the margins, but the bill's 
     central idea--to replace litigation with a $140 billion 
     compensation fund to be financed by defendant companies and 
     their insurers--must be preserved. Democrats complain that 
     the fund won't have enough money to compensate asbestos 
     victims; Republicans complain that the fund will have too 
     much money, the raising of which will constitute a burden on 
     small and medium-size firms. The fact that the bill is being 
     attacked from both directions suggests that its authors, 
     Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt), have 
     balanced competing interests in a reasonable manner.
       Unfortunately, the bill's critics are not always so 
     reasonable. Sen. Harry M. Reid of Nevada, the Democratic 
     minority leader, has complained, ``One would have to search 
     long and hard to find a bill in my opinion as bad as this.'' 
     He has even described the legislation as the work of 
     lobbyists hired by corporations to limit asbestos exposure. 
     But the truth is that the bill's main opponents are trial 
     lawyers, who profit mightily from asbestos lawsuits and who 
     constitute a powerful lobby in their own right Mr. Specter 
     and Mr. Leahy are in fact model resisters of special 
     interests who have spent more than two years crafting 
     legislation that serves the public interest For Mr. Reid to 
     demean this effort in order to fire off campaign sound bites 
     is reprehensible.

  Mr. SESSIONS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________