[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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