[Congressional Record Volume 152, Number 101 (Thursday, July 27, 2006)]
[Senate]
[Pages S8397-S8398]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MUTUAL LEGAL ASSISTANCE TREATY WITH GERMANY
Mr. FRIST. Mr. President, I ask unanimous consent that the Senate
proceed to executive session to consider the following treaty on
today's Executive Calendar: No. 13. I further ask unanimous consent
that the treaty be considered as having passed through
[[Page S8398]]
its various parliamentary stages, up to and including the presentation
of the resolution of ratification; that any statements be printed in
the Congressional Record as if read; and that the Senate proceed to a
vote on the resolution of ratification; and further, that when the
resolution of ratification is voted on, the motion to reconsider be
laid upon the table, the President be notified of the Senate's action,
and that following the disposition of the treaty, the Senate return to
legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I support the Treaty on Mutual Legal
Assistance with Germany, a close and trusted partner with the United
States on law enforcement matters.
I would like to address one issue that arose during the review of the
treaty. Article 12(1) of the treaty provides that ``Each Party may at
the request of the other Party, within its possibilities and under the
conditions prescribed by its domestic law . . . take the necessary
steps for the surveillance of telecommunications.''
After the revelation last December of the program of warrantless
surveillance by the National Security Agency, NSA, the question arose
whether the treaty would provide another purported legal authority for
the NSA program. My view is that it does not. But the President's
lawyers have proffered highly dubious theories for the program, and the
Senate should not make assumptions about what the executive branch
thinks about a treaty, because ultimately it is the President, not the
Senate, who is charged with ``faithfully executing'' it. So I asked the
executive branch its legal view about whether the treaty provides any
additional legal authority for electronic surveillance--whether for the
NSA program or any other program.
On April 6, 2006, I wrote the Attorney General of the United States
to ask him to confirm that the treaty does not authorize warrantless
surveillance. On July 3, after nearly 3 months of deliberation, the
Department of Justice responded to my letter. Why it took so long to
answer this simple question is unclear. But the response itself is
clear: the Justice Department letter concludes that the treaty with
Germany would ``in no way expand current authority under U.S. law to
conduct electronic surveillance.''
I welcome the Justice Department's response. While I may disagree
with the Department about the scope of the current authority under U.S.
law to conduct electronic surveillance, I agree with the Department's
interpretation that Article 12(1) does not expand that authority.
I urge all Senators to support this treaty.
I ask unanimous consent that both letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on Foreign Relations,
Washington, DC, April 6, 2006.
Hon. Alberto R. Gonzales,
Attorney General of the United States,
Washington, DC.
Dear Judge Gonzales: Pending before the Senate is a Treaty
on Mutual Legal Assistance in Criminal Matters with Germany
(Treaty Doc. 108-27).
Article 12(1) of the Treaty provides that each party may
request that the other party, ``under the conditions
prescribed by its domestic law, take the necessary steps for
the surveillance of telecommunications.''
I write to request that you confirm that the Treaty does
not authorize warrantless surveillance, including any
surveillance authorized by the program of surveillance on
which you testified before the Committee on the Judiciary on
February 6, 2006.
Sincerely,
Joseph R. Biden, Jr.,
Ranking Minority Member.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington DC, July 3, 2006.
Hon. Joseph R. Biden, Jr.,
Ranking Minority Member, Committee on Foreign Relations, U.S.
Senate, Washington, DC.
Dear Senator Biden: This responds to your letter, dated
April 6, 2006, to the Attorney General inquiring whether
Article 12(1) of the Treaty on Mutual Legal Assistance in
Criminal Matters with Germany would authorize warrantless
surveillance, including under the Terrorist Surveillance
Program described by the President.
By its terms, Article 12 would provide that ``[e]ach Party
may at the request of the other Party, within its
possibilities and under the conditions of its domestic law[
(1)] take the necessary steps for the surveillance of
telecommunications.'' (Emphasis added.). Accordingly, the
Treaty would not enlarge existing surveillance authorities.
The Terrorist Surveillance Program is a narrowly focused
early warning system, targeting for interception only those
international communications for which there is probable
cause to believe that at least one of the parties to the
communication is a member or agent of al Qaeda or an
affiliated terrorist organization. It is a critical
intelligence tool for protecting the United States from
another catastrophic al Qaeda attack in the midst of an armed
conflict. It is not a means of collecting information for
foreign criminal investigations.
In sum, the MLAT with Germany would in no way expand
current authority under U.S. law to conduct electronic
surveillance. We hope this information is helpful. Please do
not hesitate to contact this office if we may be of
assistance with future matters.
Sincerely,
William E. Moschella,
Assistant Attorney General.
Mr. FRIST. Mr. President, I ask for a division vote on the resolution
of ratification.
The PRESIDING OFFICER (Mr. Allen). A division is requested. Senators
in favor of the resolution of ratification will rise and stand until
counted.
Those opposed will rise and stand until counted.
On a division, two-thirds of the Senators present and voting having
voted in the affirmative, the resolution of ratification is agreed to.
The resolution of ratification reads as follows:
Resolved (two-thirds of the Senators present concurring
therein),
The Senate advised and consents to the ratification of the
Treaty between the United States of America and the Federal
Republic of Germany on Mutual Legal Assistance in Criminal
Matters, signed at Washington on October 14, 2003, and a
related exchange of notes (Treaty Doc. 108-27).
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