[Congressional Record (Bound Edition), Volume 152 (2006), Part 12]
[Senate]
[Pages 16254-16255]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

              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 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

[[Page 16255]]

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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