[Congressional Record Volume 153, Number 9 (Wednesday, January 17, 2007)]
[Senate]
[Pages S646-S647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE FISA PROGRAM

  Mr. LEAHY. Madam President, earlier today, I spoke with the Attorney 
General of the United States. He is going to be testifying before the 
Senate Judiciary Committee tomorrow morning. We anticipate it will be 
for much of the day. He wished to inform me, as he did Senator Specter, 
of some changes in the so-called FISA Program. I have been very 
critical of the administration's actions through the National Security 
Agency--their wiretapping of Americans, wiretapping of people 
throughout the country, and apparently doing so without obtaining any 
warrants.
  Interestingly enough, the information about this spying on Americans 
came not from our administration reporting it either through the 
Intelligence Committee or the Judiciary Committee or the appropriate 
committees involved; it came out because, like so many other things we 
find out about, we read about it first in the newspaper.
  Apparently, the administration has decided not to continue this 
warrantless spying program on Americans, but instead to seek approval 
for all wiretaps from the Foreign Intelligence Surveillance Court. I 
say this based on the letter sent to us. This is public; this is not a 
classified matter. The law has required for years that they do it this 
way.

  I welcome the President's decision not to reauthorize the NSA's 
warrantless spying program because, as I have pointed out for some 
time, and as other Senators on both sides of the aisle have pointed 
out, the program was, at very best, of doubtful legality.
  Since this program was first revealed, I have urged this 
administration to inform Congress of what the Government is doing and 
to comply with the checks and balances Congress wrote into law in the 
Foreign Intelligence Surveillance Act.
  We know we must engage in all surveillance necessary to prevent acts 
of terrorism, but we can and we should do it in ways that protect the 
basic rights of all Americans, including the right to privacy.
  The issue has never been whether to monitor suspected terrorists--
everybody agrees with that; all Americans do. The question is whether 
we can do it legally and with proper checks and balances to prevent 
abuses. Providing efficient but meaningful court review is a major step 
toward addressing those concerns.
  I continue to urge the President to fully inform Congress and the 
American people about the contours of the Foreign Intelligence 
Surveillance Court order authorizing the surveillance program and of 
the program itself. Only with meaningful oversight can we assure the 
balance necessary to achieve security with liberty.
  I ask unanimous consent that a copy of a letter from the Attorney 
General, dated January 17, addressed to me and Senator Specter, which 
indicates copies to numerous other people, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         The Attorney General,

                                 Washington, DC, January 17, 2007.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Arlen Specter,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Chairman Leahy and Senator Specter: I am writing to 
     inform you that on January 10, 2007, a Judge of the Foreign 
     Intelligence Surveillance Court issued orders authorizing the 
     Government to target for collection international 
     communications into or out of the United States where there 
     is probable cause to believe that one of the communicants is 
     a member or agent of al Qaeda or an associated terrorist 
     organization. As a result of these orders, any electronic 
     surveillance that was occurring as part of the Terrorist 
     Surveillance Program will now be conducted subject to the 
     approval of the Foreign Intelligence Surveillance Court.
       In the spring of 2005--well before the first press account 
     disclosing the existence of the Terrorist Surveillance 
     Program--the Administration began exploring options for 
     seeking such FISA Court Approval. Any court authorization had 
     to ensure that the Intelligence Community would have the 
     speed and agility necessary to protect the Nation from al 
     Qaeda--the very speed and agility that was offered by the 
     Terrorist Surveillance Program. These orders are innovative, 
     they are complex, and it took considerable time and work for 
     the Government to develop the approach that was proposed to 
     the Court and for the Judge on the FISC to consider and 
     approve these orders.
       The President is committed to using all lawful tools to 
     protect our Nation from the terrorist threat, including 
     making maximum use of the authorities provided by FISA and 
     taking full advantage of developments in the law. Although, 
     as we have previously explained, the Terrorist Surveillance 
     Program fully complies with the law, the orders the 
     Government has obtained will allow the necessary speed and 
     agility while providing substantial advantages. Accordingly, 
     under these circumstances, the President has determined not 
     to reauthorize the Terrorist Surveillance Program when the 
     current authorization expires.
       The Intelligence Committees have been briefed on the highly 
     classified details of these orders. In addition, I have 
     directed Steve Bradbury, Acting Assistant Attorney General 
     for the Office of Legal Counsel, and Ken Wainstein, Assistant 
     Attorney General for National Security, to provide a 
     classified briefing to you on the details of these orders.
           Sincerely,
                                              Alberto R. Gonzales,
                                                 Attorney General.

  Mr. LEAHY. Madam President, I was a prosecutor for 8 years. I enjoyed 
being a prosecutor. But I also was well aware that we acted within 
checks and balances. Courts had their role, prosecutors had their role, 
defense attorneys had their role. It only worked when everybody did 
what they were supposed to, including the executive.
  I was also a prosecutor and on the board of the National District 
Attorneys Association at the time of COINTELPRO, a program of spying on 
Americans who disagreed with the war in Vietnam, and even, we found out 
later, spying on Martin Luther King because he was speaking so 
radically as to suggest that we might actually want equality between 
people, no matter what their color might be, in this country.
  Our Government was spying on people who objected to war. Our 
Government was spying on people who wanted integration in America. I 
don't want us to go back to that point.
  I shudder to think what might have happened if J. Edgar Hoover had 
had all the electronic capabilities we have today. The only way we stop 
this--it makes no difference if we have a Democratic or Republican 
administration--the only way we stop it is with the checks and balances 
we have built in.
  FISA and the Foreign Intelligence Surveillance Court came about 
because of illegal spying on Americans who were not committing any 
unlawful act, but were simply questioning what their Government was 
doing. Many of us

[[Page S647]]

worry that has happened now. We have seen, for example, that the 
Department of Defense has had surveillance, has even recorded movies, 
of Quakers protesting war. Quakers always protest wars.
  Madam President, I ask for 2 additional minutes, under the same 
agreement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. They always do this. We heard in the press that there has 
been surveillance of Vermonters who protested the war. I can save them 
money. Turn on C-SPAN. I do it all the time on the Senate floor, if 
they want to find a Vermonter who may protest the war.
  The question here is a greater one. What right does our Government--
our Government, which is there to serve all of us--have to spy on 
individual Americans exercising their rights? Of course, go after 
terrorists, but to go after terrorists, you can do it within the law.
  The distinguished occupant of the chair, the Presiding Officer, is 
also a former prosecutor. She knows how we have to go to court and 
follow the law for search warrants or anything else. In this area of 
foreign intelligence, we have made it very easy and very quick for the 
government to go before special courts, FISA courts. Let's do that, 
because when this administration or any administration says they are 
above the law, they don't have to follow the law, they can step outside 
the law, they don't have to follow checks and balances, then I say all 
Americans, no matter what your political leaning might be, all 
Americans ought to ask why are they doing this, why are they doing 
this. Because it doesn't in the long run protect us, not if we let them 
take away our liberties.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.

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