Congressional Record: January 17, 2007 (Senate)
Page S646-S647                      

 
                            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.

                          ____________________


Congressional Record: January 17, 2007 (Senate)]
Page S652-S653
                      
 
                   New Foreign Surveillance Policy

  Mr. SPECTER. Madam President, I thank my colleagues for yielding this 
time. I have sought recognition to express my approval--I am glad to 
see that the Attorney General of the United States, in telephone calls 
to Senator Leahy and myself and now in letters, has advised that there 
is a new procedure to have the requests for wiretaps on al-Qaida 
members submitted to the Foreign Intelligence Surveillance Court. On 
December 16, the New York Times broke the story that there were 
wiretaps going on under a Presidential order without complying with the 
customary requirement that probable cause be established and submitted 
to the court, which would authorize the issuance of a warrant, to 
authorize the wiretap.
  On that day, Friday, we were in the final stages of floor debate on 
the PATRIOT Act, and the disclosure that morning that there were 
warrantless recordings going on was quite a shock and quite a problem, 
because I was managing that bill in my capacity as chairman of the 
Judiciary Committee.
  I said on the floor at that time that there was a clear-cut violation 
of the Foreign Intelligence Surveillance Act, which provides that the 
Act is the exclusive way for having a wiretap for foreign intelligence 
surveillance. The President has sought to justify the surveillance 
under his article II inherent powers. That raises a complicated issue, 
which can only be determined by the courts by weighing the invasiveness 
of the wiretapping--invasiveness into privacy--contrasted with the 
importance of national security.
  Most of last year found this item as the No. 1 priority of the 
Judiciary Committee and my No. 1 priority as chairman. We had a series 
of hearings, four hearings. I introduced legislation to try to bring 
the program at that time under the Foreign Intelligence Surveillance 
Act.
  The administration had refused to disclose the details of the program 
to the Judiciary Committee. They maintained that attitude consistently 
up until today. They finally did submit it, after a lot of pressure, to 
the Intelligence Committees--first a subcommittee of the Senate 
Intelligence Committee, then when the House resisted only a 
subcommittee, it was finally submitted to the full committees--really 
it was only submitted when the time came for the confirmation of 
General Hayden for Director of the CIA.
  I have not been privy to what was disclosed to the Intelligence 
Committee, but based on my chairmanship of that committee during the 
104th Congress, I have some doubts as to the adequacy of the 
disclosure. I know when I was chairman, the chairman was supposed to be 
informed about those classified and secret programs, but that was in 
fact not the case.
  When the matter later moved into litigation and the Federal court in 
Detroit declared the surveillance program unconstitutional, and then 
the appeal was taken to the Sixth Circuit, I introduced substitute 
legislation--S. 4051 last year, and I've reintroduced it already this 
year--which would have provided for expedited review in the Federal 
courts and mandatory review by the Supreme Court. The bill also would 
have required individualized warrants for calls originating in the 
United States, because the administration had disclosed that, if there 
were changes made in the Foreign Intelligence Surveillance Act, there 
could be a warrant for all outgoing calls but not incoming calls 
because there were so many.
  I am glad to see that we may now have all of that resolved. We are 
not sure. I want to know the details of this program.
  Senator Leahy has already spoken on the subject today and has put 
into the Record a letter that he and I received today from the Attorney 
General. The key parts are as follows:

       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 approval of the Foreign Intelligence 
     Surveillance Court.

  That language says there will be probable cause established. I think 
we need to know more about the procedures for the determination of 
probable case, whether it is on individualized warrants or it is a 
group program. We will need to know more about the determination of an 
individual being an agent of al Qaeda, and we will need to know more 
about what is meant by an associated terrorist organization, to see 
that probable cause has been established under the customary standards.
  The letter from the Attorney General goes on to say:

       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.

  It would have been my hope that the Attorney General, in our 
oversight hearings, where he was called and asked about this program, 
would have made that disclosure. A lot of time and effort went into the 
Judiciary Committee hearings and went into the

[[Page S653]]

drafting of legislation. I personally met with the President last July 
11 and secured his agreement to submit this program to the Foreign 
Intelligence Surveillance Court. For a variety of reasons, which I 
shall not detail now, that legislation did not move forward.
  Then, as I've noted, there was substitute legislation when the 
Federal court in Detroit declared the program unconstitutional and the 
matter came before the Sixth Circuit.
  The Attorney General's letter says, as is appropriate, that the 
program will have ``the speed and agility necessary to protect the 
Nation'' from terrorist attack--and that has always been a major 
concern: that we be protected, but that we be protected with an 
appropriate balance, so that there not be an intrusive wiretap without 
the customary court approval.
  The Attorney General had advised me that there would be a meeting 
today, which I am just informed has been canceled, but there needs to 
be oversight beyond what has been disclosed in this letter. But at 
least there is a very significant first step. It is regrettable that 
these steps were not taken a long time ago. I would like to have an 
explanation as to why it took from the spring of 2005, and at least 
from December 16, 2005, until now, when there has been such public 
furor and public concern.

  Further, the letter of the Attorney General says:

       Accordingly, under these circumstances, the President has 
     determined not to reauthorize the Terrorist Surveillance 
     Program when the current authorization expires.

  It would be my hope that the program is terminated now, since there 
is an alternative method which the Attorney General has announced. I do 
not know when the program will expire. They have it in place for 45-day 
periods. We do not know when the last one started, so we do not know 
when this one will end. But, with an alternative program in place, it 
ought to be terminated now--to have the regular procedures for the 
establishment of probable cause, to protect civil liberties. And, as 
the Attorney General says, to address concerns in taking care of the 
protection of the country.
  Again, Madam President, I thank my colleagues for yielding the time.
  I yield the floor.