[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 868-869]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. DORGAN. Madam President, we are talking about FISA we use a lot 
of acronyms in Washington, DC, unfortunately--the Foreign Intelligence 
Surveillance Act. It is a complicated subject, and one, if people have 
been watching the debate, that is also controversial. There is a lot of 
passion about this subject. We have people standing up and saying: None 
of this should be disclosed. We should not be talking about this. This 
is about the ability to protect our country against terrorists. Of 
course, we have to listen into communications and intercept 
communications. It is the only way to find out if there are terrorist 
acts being plotted by terrorist groups, and so on. There is that kind 
of thing.
  There are concerns on the other side by people who say: Wait a 
second. There is something called a Constitution in this country. There 
is a right to privacy, a right to expect that the Government will not 
be spying on American citizens without cause.
  This is a very controversial and difficult subject. Frankly, nearly 
everyone, with the possible exception of the chairman and ranking 
member or maybe one or two others on the Intelligence Committee, knows 
very little about that which we are discussing.
  Let me put up a photograph of a door. This is a door in San 
Francisco, CA, a rather unremarkable photograph of a door. This is a 
door that is in AT&T's central offices in San Francisco. A courageous 
employee of AT&T named Mark Klein, who had been with the company for 22 
years, blew the whistle on what was happening behind this door. 
According to Mark Klein, the National Security Agency had connected 
fiber optic cables to AT&T's circuits through which the National 
Security Agency could essentially monitor all of the data crossing the 
Internet. Here is what Mr. Klein had to say went on behind this door:

       It appears the [National Security Agency] is capable of 
     conducting what amounts to vacuum-cleaner surveillance of all 
     the data crossing the Internet--whether that be people's e-
     mail, web surfing, or any other data.

  The description of what was happening at this one telephone company 
in this one location in San Francisco was this: the intercepting of 
communications at the AT&T Folsom Street facility, millions, perhaps 
billions of communications from ordinary Americans coming into and 
through the facility, which would normally have been the case for a 
telephone company, and a splitter being used, according to the 
discussion by Mark Klein, splitting off all of this conversation into 
an NSA-controlled room, to be eventually evaluated with sophisticated 
programming, and then going back out in order to complete the 
communication. So you have effectively a copy of everything that is 
happening going through with a splitter to a secret room.
  When this became public, when a whistleblower working for the company 
said, here is what is happening, there was an unbelievable outcry on 
both sides. Some people said: What on Earth is happening? We have 
secret rooms in which the National Security Agency is running all this 
data and all this information through and spying on American citizens? 
Others said: What is going on? Who on Earth would have decided they 
should disclose this publicly? They are going to alert the terrorists 
to what we are doing. We had both sides aghast that this was disclosed. 
It is important to say that, initially, almost no one in an official 
capacity was willing to admit to this. Finally, it was admitted, yes, 
there was a program. The President said: Yes, there is a program--
speaking, apparently, of just this program; we don't know of other 
programs that exist or may exist, but this program existed without our 
knowledge. The President indicated this program existed because we are 
going after the bad guys, and we have a right to do that. And we did 
this program because the process that had been set up because of abuses 
with respect to eavesdropping and spying on American citizens decades 
ago, that process was way too cumbersome, took far too much time, and 
we needed to streamline that. That is a paraphrase. But there was an 
admission that this program existed and no additional legal authority 
needed to empower the President to do it.
  So that is where we are. Most of us don't know the full extent of 
this program at all. In fact, my understanding is that rooms like this 
exist in other parts of the country with other telephone companies 
where splitters are used to move data to separate rooms and data is 
evaluated.
  This whole process comes from several decades ago when something 
called the FISA Court was set up, a court to evaluate the questions 
about when it is legal and appropriate and when the Government is able 
to intercept communications. The FISA Court was established for the 
very purpose of trying to make the judgment about when it is 
appropriate to go after the bad guys and how to protect our civil 
liberties at the same time.
  The FISA Court was an outgrowth of concern by the Congress when we 
discovered that there was a time in this country when we had the 
National Security Agency running secret projects called Shamrock and 
Minaret to gather both international communications and also domestic 
communications. Project Shamrock actually started during the Second 
World War when major communications companies of the day gave the 
Federal Government access to all of their international traffic. One 
can imagine, in the fight against the Nazis and the Japanese Imperial 
Army, the desire for international communications to evaluate things 
that might threaten this country's security. But the Shamrock program 
then, as we know, changed over time.
  At first the goal was to intercept international telegrams relating 
to foreign targets. Then, soon the Government began to intercept 
telegrams of U.S. citizens. By the time there were hearings held in the 
Congress, the National Security Agency was intercepting and analyzing 
about 150,000 messages per month.
  Data from Project Shamrock was then used for another project code 
named Project Minaret, which we now know spied on perceived political 
opponents of the then-administration of Richard Nixon. Under this 
program the NSA added Vietnam war protesters to its watch list. After 
there was a march on the Pentagon, the Army requested that they add 
antiwar protesters. The list included people such as folk singer Joan 
Baez and civil rights leader Dr.

[[Page 869]]

Martin Luther King, Jr. We just celebrated within the week the Federal 
holiday celebrating the birthday of Martin Luther King, Jr. Yet it was 
not too many decades ago that Dr. Martin Luther King, Jr., was under 
surveillance by his own Government.
  The Congress passed its findings, when it did investigative hearings, 
and the Foreign Intelligence Surveillance Act created the FISA Court.
  Here is the experience with the FISA Courts. Between 1975 and 2006, 
there were 2,990 warrants issued by the FISA Court. Only five were 
denied. What that suggests is that it is not too difficult to get 
approval by the FISA Court for surveillance. But the President and Mr. 
McConnell, the head of our intelligence agency, have indicated that 
there has been a problem.
  For example, Mr. McConnell cited the capture of three American 
soldiers who were later killed in Iraq. Right after they were captured 
there was a period of time when it was critically important to be able 
to intercept communications in Iraq, and they were encumbered at a time 
when it was critical to find out who held these soldiers.
  That is not accurate, and the head of intelligence would have known 
that. I don't know why he represented that. There is a period of time 
when in an emergency situation, you can begin surveillance without 
having to go to FISA. You have to go FISA after that period of time, 
but you are given an opportunity for emergency surveillance even before 
you get the approval or even before you go to the FISA Court.
  What we have learned, however, through all of this process is from a 
December 2005 report in the newspapers. President Bush had authorized 
the National Security Agency to eavesdrop without warrants inside the 
United States which bypassed the entire FISA Court system. It turns out 
that most of the large telephone companies in this country had gone 
along with the administration's request for that activity.
  We are told that the administration, Attorney General Gonzales, and 
others furnished the telephone companies with some sort of letter, a 
certification of sorts. We don't know what that letter was, however, 
because the administration, citing the State Secrets Act, refuses to 
allow that to be disclosed.
  I think if they provide certification to a telephone company--and the 
telephone company relies on that--by officers of the Federal 
Government, in good faith, let's have that disclosed. Why should we 
wonder about the actions of a telephone company? If, in fact, you have 
an Attorney General of the United States who is certifying, let's find 
out what this administration did. Let's find out how they did it. Let's 
not have them tell us you cannot even see what was provided to a 
telephone company in terms of certification. That, in my judgment, does 
not pass the red face test.
  I hope very much we will begin to learn at some point what this 
administration has done, when they did it, and what the consequences of 
it are. This issue of the Foreign Intelligence Surveillance Act has 
become a political football by this administration. The last time we 
debated this, some while ago, it was quite clear that the politics of 
it were viewed as wonderful politics by the other side and by the White 
House. But this ought not be about politics at all. This ought to be 
about two issues, both of which are critically important: One is 
protecting this country's interests, yes, giving us a chance to make 
sure we understand what the terrorists are doing, how to foil terrorist 
attempts to injure this country--it is about that; and that is very 
important--but it is also about civil liberties and protecting the 
rights of the American people at the same time.
  We thought we had done that by putting together the FISA Court. We 
thought we had done that by establishing a procedure that needed to be 
followed. We now understand the President, with his lawyers, says those 
laws do not matter. There is in the Constitution, they say, something 
about the powers of the Commander in Chief, and he can do whatever he 
wants. That is a pretty dangerous interpretation of the U.S. 
Constitution.
  We debate this in so much ignorance because almost no one knows what 
this administration has done, and they are preventing us from knowing 
as much as we should know, in most cases, by claiming protection under 
the State Secrets Act, and not even allowing the release of the letter 
that was provided to the telephone companies that cooperated that 
describes to them the legal authority for doing so.
  I think there is much to be learned here, much we need to know. I 
think it is very important, as we reach an agreement on the Foreign 
Intelligence Surveillance Act--and we should because it is an important 
circumstance by which we need, in certain cases, when we believe there 
is information being passed from terrorist to terrorist, and so on--if 
those communications are being run through this country, we need to be 
able to intercept and interpret what is happening--but it is critically 
important we not allow a kind of an approach to this where there is no 
oversight, there is no check.
  We have a government of checks and balances. What the President and 
his people seem to be saying to us is: We are not interested in checks 
and balances. We have the authority in the Constitution, as we 
interpret it, and that means it exceeds every law you can pass. We are 
going to do what we want to do. And if you don't like it, tough luck. 
And if you don't like it, by the way, what we will say to the American 
people is you are not willing to stand up for the security of this 
country.
  It is outrageous. It is dragging this issue smack-dab in the middle 
of their little political balloon. But this is a much more important 
process than that. We need to do this, and we need to get it right in 
order to protect America. We need to do this, and we need to get it 
right in order to protect the interests of the American people as 
well--and that interest of privacy and that interest of making sure 
that ``big brother government'' is not running all of your telephone 
calls and all of your e-mails and all of your information through its 
drift net to find out what you are saying and what you are doing and 
who you are talking to.
  That is not what I understand to be the best interests of this 
country or the guarantees that exist in the Constitution for the 
American people. That is why this is worth an important controversy and 
an important fight. It is why it is for us to take enough time to get 
it right. This is a big issue. We do a lot of things on the floor of 
the Senate that are not so big--not big issues. They are smaller issues 
in consequence. This issue is about freedom and liberty and the 
guarantees given the American people in the Constitution. It is about 
whether there is a check on Presidential power that assumes they have 
the power that exceeds all other laws. If we do not have that kind of 
check and balance in this Government, then we have bigger problems than 
I thought.
  So I only wanted to say, with respect to this issue, we do not know 
much about it. We know at this point that behind this door, as shown on 
this chart--behind this door--exists information split off what is 
called a splitter from the main line. Massive amounts of information 
come into it--in this case, it was AT&T it could have been other 
telephone companies--it is split off, and then all of it is evaluated 
to find out: Is there something there that is suspicious? It is not the 
way America has ever worked, and not the way it should work.
  So the more we know, I think the more we will be able to better 
understand how to do two things at once: protect our country against 
terrorists, and protect the civil liberties of the American people. 
Both are important. At least there is one group of people in this 
political system of ours that believes the first is far more important 
than the second. They are wrong. They are both important, and both 
worth standing up for.

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