[Congressional Record Volume 152, Number 113 (Wednesday, September 13, 2006)]
[Senate]
[Pages S9450-S9452]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NSA WARRANTLESS SURVEILLANCE PROGRAM

  Mr. ROCKEFELLER. Mr. President, the National Security Agency has been 
wiretapping the conversations of Americans without obtaining court 
orders, as required by the Foreign Intelligence Surveillance Act, or 
FISA, for the past 5 years.
  In recent months, a number of bills have been proposed which would 
codify the President's program of warrantless surveillance. The White 
House is now pushing the Senate Judiciary Committee to pass sweeping 
legislation that would amend FISA and grant the President unprecedented 
authority to undertake wiretapping in the United States without the 
judicial scrutiny currently required by law.
  For Congress to legislate on this program in the coming days would 
not only be premature but irresponsible.
  The fact remains that despite repeated assurances from the 
administration, Members of Congress remain in the dark and cannot 
answer fundamental questions about the program's existence, 
effectiveness or legal justification.
  As one of the few Members who have received the most detailed 
information to date. I can tell you that, putting aside the legal 
argument, the administration has not been able to document convincingly 
the counterterrorism benefits of the program.
  In fact for the past 6 months, I have been requesting, without 
success, specific details about the program including how many 
terrorists have been identified, how many arrested, how many convicted, 
and how many terrorists have been deported or killed as a direct result 
of information obtained through the warrantless wiretapping program.
  I can assure you, not one person in Congress has the answers to these 
fundamental questions.
  At the same time, let me be perfectly clear, I support all efforts to 
track down terrorists wherever they are using all of our best 
technology and resources. But it can and must be done legally and in a 
way that protects the rights of all Americans.
  For 4\1/2\ years, the President had restricted knowledge of this 
program to the top leaders of the Senate and House and the two top 
leaders on the congressional Intelligence Committees.
  By limiting the briefings to 2 of the 15 Intelligence Committee 
members, the White House had sought to prevent the committee from 
conducting the legally required oversight of the NSA program.
  Because of this restriction on access to the program, the committee 
has been effectively prevented from knowing about the program, 
evaluating the program, and acting on the program.
  Frankly, I believe the White House goal of the past 5 years has been 
to use the iron cloak of secrecy to keep Congress ignorant of and 
powerless to challenge a controversial program of suspect legality.
  The repeated representations by the President and senior 
administration officials that the warrantless wiretapping program was 
and is subject to extensive congressional oversight are simply 
outrageous.
  Entire committees, not individual Senators, report out legislation 
that authorizes and funds intelligence collection programs. The full 
Senate, not individual Senators, takes action to approve or reject this 
legislation.
  The White House wanted a warrantless wiretapping program that was 
exempt from the scrutiny of both the courts and the Congress, even if 
it meant ignoring the legal requirements of FISA and the National 
Security Acts and shattering what had been decades of responsible, 
bipartisan congressional oversight of intelligence programs. Why?
  Administration officials have stated that the fact that the NSA was 
collecting the communications of suspected terrorists coming in or out 
of the United States without a court's determination that probable 
cause existed was simply too sensitive to disclose to the other Members 
of Congress intimating that the congressional Intelligence Committees 
could not keep aspects of the program classified.
  I would remind this administration that the Intelligence Committee is 
entrusted on a daily basis with the secrets that if disclosed would 
irreparably harm our national security, compromise multibillion-dollar 
collection programs, and even get people killed.
  There are 15 members of the Senate Intelligence Committee and many 
more of my colleagues who at an earlier time served on the committee.
  All Senators, by right of their elected position and the duties they 
are sworn to carry out have access to the details of these highly 
classified collection programs.
  It is a sobering responsibility but members of our committee and the 
Senate as a whole have protected these secrets because each of us 
understands what is at stake.
  In fact, as someone who has been briefed on the NSA wiretapping 
program, I can assure may colleagues that the sensitivity of the 
program pales in comparison with other intelligence activities our 
committee oversees on a routine basis.
  My colleagues should be troubled by the fact that the only NSA 
intelligence collection program that the White House has directed be 
described in detail publicly is also the only NSA program the White 
House continues to withhold from the full Senate.
  I want my colleagues to consider the implications of this carefully.
  At a time when terrorism is the No. 1 threat to America's security, 
the White House has decided that Congress cannot be trusted with the 
job of protecting our citizens.
  Instead of working with Congress, the President decided with an 
almost imperial disdain to ignore the constitutional role the 
legislative branch plays in providing for the National defense.
  It wasn't until March 9 of this year, and after enormous pressure, 
that the administration agreed to allow five additional committee 
members and three staffers to be briefed into the program.
  Another 2 months would pass before the White House agreed with our 
request that the entire committee membership be apprised of the 
program's operations.
  However, contrary to public statements in recent months by the 
President and Vice President that Congress is being fully briefed, I am 
dismayed to report that this administration continues to pursue its 
policy of depriving the Congress the information it needs to understand 
and evaluate the NSA program's legal underpinnings, operational 
conduct, and usefulness in identifying and arresting terrorists.
  On February 23, 2006, I wrote to NSA Director GEN Keith Alexander, 
Attorney General Alberto Gonzales and Director of National Intelligence 
John Negroponte requesting documents and information about the NSA 
program, including the Presidential orders authorizing the program, 
legal reviews and opinions relating to the program, procedures and 
guidelines on the use of information obtained through the program, and 
specifics about the counterterrorism benefits of the program.
  This letter was followed up with a second more refined request on May 
15 of 54 items based on briefings the committee had recently received.
  The May letter repeated my earlier request for basic documentation 
and information, such as the Presidential authorization orders, which 
are essential in order for the Intelligence Committee to fully 
understand and thoroughly evaluate the NSA program, a necessary step 
before considering whether legislation relating to the program or 
amending FISA is needed.
  Over 6 months have passed since I sent my original February letter 
and the Intelligence Committee has not received the requested 
information.
  During this time, I and my staff director repeatedly raised the issue 
of the delinquent replies with White House and administration 
officials, including a direct appeal I made to Director Negroponte in 
July.
  Six months and no response from the administration. This is simply 
unacceptable.
  Three days after I met with Director Negroponte and expressed my 
concerns about the lack of a response to the February and May requests 
for documents and information, the Intelligence Committee received a 
fax from the NSA's Office of General Counsel forwarding ``a set of 
administration-approved unclassified talking points for members to 
use.''

[[Page S9451]]

  The cover page of the fax included comments indicating that the 
talking points were prepared in response to questions from committee 
members about what could be said publicly about the NSA program.
  When I read the talking points, I was stunned to find that the NSA 
provided political talking points.
  Instead of providing the requested assistance in delineating what is 
and what is not classified about the program, the talking points 
contain subjective statements intended to advance a particular policy 
view and present the NSA program in the best possible light.
  Instead of providing the committee with the documents and information 
requested a half year earlier and allowing the committee to complete 
its own review of the NSA program and to draw its own independent 
conclusions, the administration preferred telling committee members 
what to think and what to say.
  The administration-approved talking points encouraged Senators to 
make statements such as ``I can say that the Program must continue; It 
is being run in a highly disciplined way,'' and ``There is strict 
oversight in place both at NSA and outside, now including the full 
congressional committees.''
  The talking points also argue for changes to FISA claiming ``Current 
law is not agile enough to handle the threat'' and ``The FISA should be 
amended so that it is technologically neutral.''
  These statements were intended to advocate the White House policy 
line rather than provide guidance on classification.
  Even before the intelligence committee can finish its own review of 
the NSA program the administration attempted to use the members of the 
intelligence committee--the only committee witting of the program's 
details--as mouthpieces to parrot conclusive statements in support of 
White House policy.
  These talking points are the latest examples of how the 
administration has co-opted an agency of the intelligence community to 
keep information from Congress in support of a controversial policy or 
program. Our committee has run into this disturbing practice with 
respect to the administration's program for the detention, 
interrogation and rendition of individuals suspected on involvement 
with terrorism as well.
  The White House's unwillingness to provide requested information to 
the Congress on the detention and interrogation program for many years 
created a void in congressional oversight, eventually filled by the 
courts and the Hamdan decision earlier this year.
  In this case, the administration took the calculated risk that it 
could go it alone, without working with Congress, and they guessed 
wrong.
  Now faced with a court decision not to its liking, the White House is 
coming to Congress seeking a legislative remedy.
  Evidently, the administration has failed to learn the lessons of this 
go-it-alone approach.
  The documents I requested of the NSA, Justice Department, and Office 
of the DNI 6 months ago have been withheld at the direction of the 
White House.
  The administration is trying to run out the clock on my requests in 
the hopes that Congress can be manipulated to pass legislation this 
session authorizing a program it does not fully understand.
  At the same time, a simple request of the NSA to detail what is and 
is not classified about the warrantless surveillance program is forced 
to go through the White House and, as a result, turned into a litany of 
administration P.R. statements.
  I and six other members of the Intelligence Committee wrote to NSA 
Director Alexander last month expressing our concerns over the 
appropriateness of these administration-approved talking points and 
objecting to the requirement that the NSA must clear with the White 
House any requested information about its own program before it is sent 
to Congress.
  We also asked that Director Alexander review this incident and 
provided the committee in writing an explanation of by whom and on what 
authority these talking points were prepared, who approved of their 
distribution to members of the Intelligence Committee, and who made the 
decision that they should be cleared by the administration prior to 
being provided to committee members.
  Mr. President, I ask unanimous consent to have printed in the Record 
the administration-approved NSA talking points, faxed to the 
Intelligence Committee on July 27, 2006, the August 29, 2006, letter to 
NSA Director Gen. Alexander signed by me and Senators Levin, Feinstein, 
Wyden, Bayh, Mikulski, and Feingold, and the September 1, 2006, 
response from General Alexander.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     From: Alonzo Robertson, Office of General Counsel.
     Date: 27 July 2006.
     To: Hon. Pat Roberts, Chairman, SSCI.
       During recent Terrorist Surveillance Program (TSP) 
     briefings, a number of members have expressed a desire to 
     know what they can say about the TSP. Attached is a set of 
     Administration approved, unclassified talking points for the 
     Members to use.
       We would appreciate it if you would distribute to the 
     Members.
                                                 Alonzo Robertson.

 Talking Points for Intelligence Committee Members To Use on Terrorist 
                          Surveillance Program

       The terrorist threat to this country is real. We need to do 
     everything possible to make our nation safe, and we need to 
     do it in a way that preserves our civil liberties.
       As a member of an intelligence committee of Congress, I am 
     fully committed to that goal. We are the watchdogs of the 
     Intelligence Community, including the National Security 
     Agency that is carrying out the Terrorist Surveillance 
     Program.
       I have been briefed on the Program and stood on the 
     operations floor at NSA to see first-hand how vital it is to 
     the security of our country and how carefully it is being 
     run.
       It would be irresponsible to reveal details because that 
     would give our adversaries an advantage. My colleagues and I 
     are very serious about protecting our nation's secrets.
       I can say that the Program must continue. It has detected 
     terrorist plots that could have resulted in death or injury 
     to Americans both at home and abroad.
       It is being run in a highly disciplined way that takes 
     great pains to protect U.S. privacy rights. There is strict 
     oversight in place, both at NSA and outside, now including 
     the full congressional intelligence committees.
       The Program is not ``Data mining''; it targets only 
     international communications closely connected to al Qa'ida 
     or an affiliated group.
       I have personally met the dedicated men and women of NSA. 
     The country owes them an enormous debt of gratitude for their 
     superb efforts to keep us all secure.
       Current law is not agile enough to handle the threat posed 
     by sophisticated international terrorist organizations such 
     as al Qa'ida. This is because the Foreign Intelligence 
     Surveillance Act of 1978, or ``FISA,'' has not kept pace with 
     communications technology and was not designed for the types 
     of threats we now face.
       Today, in part because of technological changes over the 
     last 30 years, the FISA frequently requires judicial 
     authority to collect the communications of non-U.S. persons 
     outside the United States. This clogs the FISA process with 
     applications for court orders that have little to do with 
     protecting U.S. privacy rights.
       The FISA should be amended so that it is technology 
     neutral. This would return it to its original purpose of 
     focusing FISA privacy protections on Americans in the United 
     States. It would greatly improve the FISA process and relieve 
     the massive amounts of resources currently being consumed.
                                  ____

                                                      U.S. Senate,


                             Select committee on Intelligence,

                                  Washington, DC, August 29, 2006.
     Gen. Keith B. Alexander,
     Director, National Security Agency,
     Fort George Meade, MD.
       Dear General Alexander: If our intelligence agencies are to 
     be successful in their mission, it is vitally important that 
     they maintain their independence. It is the National Security 
     Agency's (NSA) duty to make sure that policymakers and 
     military leaders are presented with accurate, objective 
     intelligence information. If the NSA, or any other 
     intelligence agency, enters a policy debate, it risks the 
     loss of policymakers' confidence and could compromise the 
     agency's effectiveness. That is why we were so troubled by 
     talking points that members of the Senate Select Committee on 
     Intelligence recently received from the NSA.
       The talking points at issue related to the NSA warrantless 
     surveillance program and were accompanied by a cover page 
     from the NSA's Office of General Counsel. The cover page 
     included comments indicating that the talking points were 
     prepared in response to questions from Committee members 
     about what could be said publicly about the NSA program. 
     Instead of providing assistance in delineating what is and is 
     not classified about the program, the talking points contain 
     subjective statements that appear intended to advance a 
     particular policy view

[[Page S9452]]

     and present certain facts in the best possible light.
       The talking points include statements such as ``I can say 
     that the Program must continue''; ``It is being run in a 
     highly disciplined way''; and ``There is strict oversight in 
     place, both at NSA and outside, now including the full 
     congressional oversight committees,'' The talking points also 
     argue for changes to the Foreign Intelligence Surveillance 
     Act (FISA) claiming ``Current law is not agile enough to 
     handle the threat'' and ``The FISA should be amended so that 
     it is technological1y neutral.'' These statements appear 
     intended to advocate particular policies rather than provide 
     guidance on classification.
       As you know, the Congress is currently evaluating various 
     aspects of the NSA program. The Senate Intelligence Committee 
     is in the process of gathering information to understand 
     operational aspects of the program, and the Senate Judiciary 
     Committee has held public hearings related to the program's 
     legal foundations. Several pieces of legislation dealing with 
     this program and the FISA have been introduced in the 
     Senate and the House of Representatives.
       The future of the warrantless eavesdropping program and any 
     proposed changes to the FISA are policy matters currently 
     being considered in the political arena. We understand the 
     Administration has a certain point of view regarding this 
     program. The program is, however, the subject of 
     consideration in the Congress.
       We believe that it is inappropriate for the NSA to insert 
     itself into this policy debate. In addition, we are 
     particularly troubled by the statement on the cover page that 
     the document is ``Administration approved, unclassified 
     talking points for Members to use.'' We object to an 
     intelligence agency, such as the NSA, clearing documents such 
     as these with the Administration prior to providing them to 
     the Congress.
       We also would note that the administration has failed to 
     provide the Committee with documents and other basic 
     information we need to conduct the strict oversight of the 
     NSA program that the NSA talking points suggest is happening.
       We ask that you review this incident and provide the 
     Committee in writing, no later than September 8, 2006, an 
     explanation of by whom and on what authority these talking 
     points were prepared, who approved of their distribution to 
     members of the Senate Intelligence Committee, and who made 
     the decision that they should be cleared by the 
     Administration prior to their being provided to Committee 
     members. We also ask that your response describe steps you 
     intend to take to ensure that all NSA employees understand 
     the importance of NSA maintaining its independence from 
     policy debates.
       Thank you for your attention to this matter.
     Jay Rockefeller.
     Evan Bayh.
     Russell D. Feingold.
     Dianne Feinstein.
     Carl Levin.
     Barbara A. Mikulski.
     Ron Wyden.
                                  ____



                                     National Security Agency,

                       Fort George G. Meade, MD, 1 September 2006.
     Hon. John D. Rockefeller IV,
     Vice Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Vice Chairman Rockefeller: I appreciated the chance to 
     talk with you yesterday about the concerns you raised in your 
     letter of 29 August 2006 pertaining to a set of talking 
     points on the President's Terrorist Surveillance Program 
     (TSP) that NSA provided to the full Senate and House 
     intelligence committees. I regret that our effort was 
     misperceived as political.
        As I stated on the phone, my intent was to respond to 
     requests from intelligence committee Members who visited the 
     Agency to oversee the TSP. They cited constituent concerns 
     and asked what they could say publicly about the Program, and 
     we wanted to be as helpful as possible. Because we are an 
     Executive Branch agency, it is standard practice that NSA 
     coordinated the talking points with the Department of 
     Justice, National Security Council staff, and the Office of 
     the Director of National Intelligence. We were especially 
     concerned that nothing we gave out could or would be 
     construed as classified.
       I again assure you that we intended our effort to be 
     apolitical. We are proud of our people, and our talking 
     points reflect the pride in our service to our nation. I want 
     to emphasize that NSA will not permit political 
     considerations to taint our intelligence information.
       If you have any questions, please call me or Michael 
     Lawrence, Director of Legislative Affairs.

                                           Keith B. Alexander,

                                    Lieutenant General, U.S. Army,
                                                    Director, NSA.

  Mr. ROCKEFELLER. Mr. President, it is clear to me that the 
administration's withholding of documents is designed to hamper the 
Intelligence Committee's review of the NSA program. Up to this point, 
information provided to the committee in briefings held since March has 
been filtered and generalized through charts and slides.
  My attempts to obtain original documents, such as the Presidential 
authorizations, and to ask questions that go beyond these 
administration-approved briefings have been ignored.
  This refusal to respond to legitimate information requests from the 
Oversight Committee, combined with the administration's over-
restriction of member and staff access to the NSA program, is part of a 
cynical White House strategy to prevent Congress from either acting or 
forcing it to legislate on vital national security and privacy issues 
in the dark.
  Twenty of the 100 currently serving Senators have been briefed on the 
NSA program at one point or another in the past 5 years. The White 
House currently allows only three members of the Intelligence Committee 
staff--two Republican staffers and one Democrat--to have access to the 
NSA program.
  By contrast, there are well over a thousand employees at the NSA, 
CIA, FBI, Justice Department, Office of DNI, Pentagon and White House 
briefed into the NSA program.
  I want my colleagues to take note of this disparity. Twenty Senators 
and three staffers compared with over a thousand executive branch 
employees.
  If, in the remaining weeks of this session, the full Senate is asked 
to consider legislation to revise FISA or authorize aspects of the NSA 
warrantless surveillance program, it is untenable--if not 
unprecedented--to keep four-fifths of the Senate ignorant of why the 
changes are justified or what intelligence activities they are 
authorizing.
  The Senate should insist that all Members be allowed to understand 
the NSA wiretapping program--with the appropriate care being taken to 
protect the remaining classified aspects not already acknowledged by 
the President--and be given the chance to draw their own conclusions 
about whether it is justified.
  Finally, General Hayden and others have publicly stated that no legal 
concerns have been raised within the administration about the operation 
of the NSA program. Limited information presented to the committee 
contradicts this assertion. But the committee has been prevented from 
understanding the details and context of these internal debates about 
the program's legality due to the administration's stonewalling.
  I urge my colleagues--we must insist on a full accounting of the 
NSA's ongoing 5-year program before acting on legislation that gives 
the President the authority to wiretap the phone conversations of 
Americans where a court has not determined that a probable cause 
standard has been met.
  Mr. President, I yield the floor.
  The PRESIDENT pro tempore. The Senator from Georgia is recognized.
  Mr. ISAKSON. Mr. President, I rise to speak for 8 minutes and ask the 
Chair to give me the signal when I have used that time.
  The PRESIDENT pro tempore. The Senator has 16\1/2\ minutes.

                          ____________________