Deficit Reduction Act of 2005--Conference Report

DEFICIT REDUCTION ACT OF 2005--CONFERENCE REPORT -- (Senate - December 20, 2005)

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Mr. CORNYN. Mr. President, since the New York Times revealed the existence of a classified program whereby the National Security Agency was conducting intelligence operations on al-Qaida and terrorist-related operatives here in the United States and overseas, there has been a lot of reaction to that revelation.

First of all, we know the New York Times had been sitting on that story for approximately a year, and then for some unstated reason decided to release the story the day we were supposed to vote on the reauthorization of the PATRIOT Act. As a result of a variety of circumstances, but I believe in part that story, we find ourselves in the very strange position of not having reauthorized the PATRIOT Act and having the PATRIOT Act expire--16 provisions of it at least--on December 31, 2005.

There are some who said when they heard about the National Security Agency's surveillance of foreign terrorist suspects that this was an illegal usurpation of congressional authority by the President, or otherwise improper. Others have asked questions about the propriety of the program.

Frankly, I do think there has been more heat than light generated on this subject, and what I would like to do is spend a few minutes sharing with my colleagues some of the research I have been able to do over the past few days to try to understand exactly what the President's authority is and what procedures apply to the collection of signals intelligence, telephone communications between terrorist suspects in America and abroad.

The fact is that previous Presidents have also argued that they had authority that the President of the United States claims to have under the provisions of the Constitution. In fact, in 1981, President Ronald Reagan signed Executive order 12333, which provided for warrantless searches directed against a foreign power or agent of a foreign power. That was in 1981.

So it perhaps should be no surprise the President who immediately preceded the current President, President Bill Clinton, his administration, also argued specifically in testimony provided by Jamie Gorelick, Deputy Attorney General, on July 14, 1994, before the Intelligence Committees, that the Clinton administration believes and the case law supports that the President has inherent authority to conduct warrantless searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

So we see there is historical precedent for the argument made by President Bush, our current President, that Presidents have some authority to act even without employing the use of the Foreign Intelligence Surveillance Act to protect American lives and to save us against the designs of terrorists who would kill innocent American citizens.

It also appears that the U.S. Supreme Court has spoken on a related issue that could be interpreted to confer authority on the President of the United States. My colleagues recall that in 2001, after the terrorist attacks that occurred in Washington and in New York City and which was thwarted in the fields of Pennsylvania, this body passed a use-of-force resolution authorizing approval of the President and the executive branch's use of force to combat and win the global war on terrorism.

We recall that not too long ago, when trying to determine the extent to which the President's powers extended, the United States Supreme Court decided a case called Hamdi v. Rumsfeld. This involved Yaser Hamdi, who was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that ``[n}o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.''

This is analogous to the Foreign Intelligence Surveillance Act, which claims that it is the exclusive method by which foreign intelligence may be obtained by use of signals intelligence.

Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer, concluded that the use-of-force resolution was ``an act of Congress'' that authorized Hamdi's detention, notwithstanding the argument that it violated 18 U.S.C. 4001.

Her rationale, as I understand the opinion, was that because the detention was meant to prevent a combatant's return to the battlefield, it was a fundamental incident of waging war in permitting the use of necessary and appropriate force.

Justice O'Connor, in the plurality opinion, concluded that Congress had clearly and unmistakably authorized detention in the narrow circumstances considered here. Thus, the question seems to me to be, by analogy, whether this use-of-force resolution, which authorizes American troops and our military to search out and to detain and, if necessary, to kill terrorists before they come to our shores and kill us--the question is, is the intelligence gathered by the use of this surveillance a fundamental incident of waging the war on terror? And it strikes me that it is.

Inherent in waging war is obtaining actionable intelligence from our enemy or on our enemy. Certainly, I would believe, under the rationale in the Hamdi v. Rumsfeld case, that this would be a fundamental incident in waging the war on terror and one authorized by the use-of-force resolution in 2001.

So we see that President Clinton believed, as did President Reagan, that the President had authority, even outside of the Foreign Intelligence Surveillance Act, but another arguable basis of that authority is the resolution that Congress itself passed in 2001.

Now, there is one other authority that I think bears on this issue that is important. When the Congress created the Foreign Intelligence Surveillance Act in 1978, it created a special court to consider ex parte--that is, ``without the benefit of the other side being there''--applications for orders to get electronic surveillance.

Now, people have thought: Well, this must be similar to other courts. But the truth is, it is not an adversarial process because we do not let our enemies know we are going to the Foreign Intelligence Surveillance Court to get an order so we can find out what they are doing. But, nevertheless, Congress did create this, what we call a court, for the purpose of considering those applications.

But more to the point, the Congress also created an appeals court called the U.S. Foreign Intelligence Surveillance Court of Review. Now, granted, most of the time the Foreign Intelligence Surveillance Court operates in secret and does so for the obvious reasons that these are classified operations. We cannot let our enemies know what we know, so we can discover their attempts to hurt innocent American civilians.

The Congress understands, and certainly the Intelligence Committees and all the Members of Congress understand, that most, if not all, of this has to operate in confidential or classified circumstances.

But in November of 2002, the Foreign Intelligence Surveillance Court of Review--this appellate court created by Congress under the Foreign Intelligence Surveillance Act--actually issued a public opinion, which was extraordinary. It is the first time since the creation of FISA, the Foreign Intelligence Surveillance Act, that an appeal was actually brought and that the court actually issued a written opinion.

Now, notwithstanding the fact that there is not an adversarial process--again, it is a one-sided process by the Government seeking permission from the judges to conduct this important surveillance against foreign agents and international terrorists--notwithstanding that fact, the court invited the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to submit briefs so they might consider their decision with the additional input of these organizations that, by their nature, would argue perhaps a more limited approach to Government power.

Well, all of that I say to point out that in the absence of a controlling U.S. Supreme Court decision--and I mentioned the Hamdi case which is applicable by analogy to this situation when it comes to the authorization of the use of force--in the absence of a controlling decision on the President's inherent power to conduct these operations through a warrantless surveillance, the court created by Congress to be the authoritative decisionmaker of these matters, in 2002, said, on page 48 of this opinion:

We take for granted that the President does have that Authority [that is, to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President's constitutional power.

Now, concededly, that is what lawyers like to call ``dicta.'' It is perhaps not essential to the decision of the specific issues that came before the FISA Court of Review, but it does recognize that the case law and precedent supports the President's authority to conduct warrantless surveillance in foreign intelligence and international conspiracies against the United States because of the power conferred on him under article II of the Constitution.

So in summary, we see that not only did the Clinton administration believe the President had that authority, the Reagan administration believed the President had that constitutional authority under article II and, by analogy, that the U.S. Supreme Court has suggested that the use-of-force resolution would authorize surveillance as a fundamental incident of waging the war on terror.

So these are helpful in shedding some light on exactly what authority the President had during the course of this surveillance, which he says was essential to protecting American lives against foreign agents bent on doing Americans harm.

It seems reasonable to me that the President ought to be able to rely on the Foreign Intelligence Surveillance Court of Review's opinion that has stated that every court that has reviewed this or similar questions has found inherent authority to conduct this type of intelligence.

Certainly, I agree that it is appropriate for Congress and this Senate to have oversight hearings. I know Senator Specter has indicated his interest in doing so; Senator Roberts, chairman of the Intelligence Committee, likewise. But we have to understand, as I know my colleagues do, that this is a classified program. There are limits to what we can talk about in public without putting in jeopardy our methods and sources of obtaining information against those people who are bent on our destruction and certainly the destruction of innocent American lives.

So it is appropriate to have a hearing. But it is not appropriate for anyone, including a Member of the Congress, to leak classified information about the existence of this program.

Now, some have said: Well, it is not illegal nor unconstitutional for the New York Times to write about it. And I will leave that for some court sometime, someplace. But we know for a fact it is a violation of the criminal law of the United States to leak classified information. My hope is that the Justice Department and the appropriate authorities will conduct a prompt and thorough investigation into how this information was leaked because, as a result, our enemies now know what we are doing and, to some extent, how we are doing it, in a way that undermines our ability to fight and win the global war on terror.

It strikes me, when you are trying to be analytical about this, trying to figure out why is it important that the President have this authority--that the Foreign Intelligence Surveillance Court of Review has assumed the President has and that President Reagan and President Clinton claimed to have--why is it important that authority exists outside of a typical law enforcement or criminal prosecution context?

Well, of course, in an intelligence-gathering mode, we may not have a target per se of that intelligence-gathering activity. There may not really be knowledge that a crime has actually yet been committed but, rather, a reasonable belief that there are individuals who are plotting, conspiring to do innocent American civilians harm. So it is impossible to do in that context what we would ordinarily do in a criminal prosecution context, which would be to have an affidavit filed by an FBI agent in support of a petition for an issuance of a warrant, which would then be filed as a public record for everybody to see.

If we have learned anything as a result of 9/11, it is that we must break out of this pre-9/11 mindset, which says that terrorism must be combated as a criminal law violation alone. It is true that terrorist activity could be a crime, but our main goal is to detect and disrupt terrorist activity before people in this country or our friends and allies across the globe are injured or killed. So the fundamental goals of our national policy have to be to disrupt the information, discover it, disrupt these cells, and protect Americans in the process.

So I wanted to come to the Chamber and say a few words about this issue because there have been some who have, in breathless tones, said that this is a great travesty, they cannot believe it has happened, and some have even gone so far as to suggest the President has acted illegally. I would say that, on balance, my conclusion is, based on historical precedent and based on the authorities that are invested with the power to render legal decisions on such matters, the President probably did act within his authority, but we should proceed to have hearings to further flesh that out so Congress can understand exactly what is going on.

Finally, I wish to say a couple of words about the Senate's failure to reauthorize the PATRIOT Act. I believe the PATRIOT Act has been one of those things that have made America safer and prevented terrorists from executing another attack on our own soil. If you look from September 11 up until this date, thank goodness, the United States of America has not suffered another attack on our own soil. We do know there have been terrorist attacks that have been disrupted but were planned in the style of 9/11 against American civilians by terrorists who care nothing about our laws or our way of life but care only for their misguided ideology and are willing to do anything, including kill innocent people, in order to accomplish their goals.

It is only reasonable to assume that the PATRIOT Act has played an important part in our safety in the United States. The reason I say that is if you look out across the world, we have seen terrorist attacks in London, Madrid, Bali, and in other places around the world. I can only conclude that the PATRIOT Act has played an important role--perhaps not the exclusive role but an important role in combating global terrorism and making sure they are not successful in attacking or killing or injuring Americans on our own soil.

It is with that in mind that I am at a loss to explain how some of our colleagues could prevent a bipartisan majority in the Senate from voting on the reauthorization of the PATRIOT Act. The fact is that some of them have said we didn't get everything we wanted in the negotiations. Well, the news is that nobody does. But the fact is the PATRIOT Act passed 98 to 1 roughly 6 weeks after the attacks of September 11. It was a bipartisan bill, obviously, because it enjoyed overwhelming support on both sides of the aisle. There is literally nothing that has changed other than additional concessions being made to address the concerns of those who claim there are civil liberty concerns in the PATRIOT Act.

Rather than allow us to have that vote, unfortunately, there is a minority in the Senate that is filibustering and preventing us from having an up-or-down vote. Ultimately, in the interest of the safety of the country, I ask my colleagues to reconsider their obstruction and denial of our ability to have that vote. We know that 16 provisions are going to expire December 31 unless we do.

There are those who say that what we need is a 3-month extension. Well, that is a phony deal, Mr. President, I suggest. We have been debating this PATRIOT Act since it was originally passed in October 2001. I think everybody has a pretty good idea where they stand. I believe every issue that could be debated has been debated, and every issue that could be negotiated has been negotiated. There has been an attempt to reach out and define common ground. Indeed, I believe the conference between the House and Senate did exactly that. It would be a terrible shame under the guise of, Well, we just need 3 more months to further dilute the provisions of the PATRIOT Act that have made America safer. Unfortunately, that is what I see happening with the unwillingness of the minority Senators to have that up-or-down vote and reauthorize the PATRIOT Act.

So I implore them not to make these offers of just 3 more months because we know all they are trying to do is use that for additional leverage to water down the strong protections of the PATRIOT Act. What they ought to do is reconcile themselves to the fact that they are not going to get everything they want, just as I didn't get everything I wanted. I would like to strike all sunsets in the PATRIOT Act and make it permanent. I advocated for provisions for administrative subpoenas, and that didn't make it into the bill. There are other things I would have liked to see in the bill that are not in the bill, but in the interest of trying to find common ground and in the interest of trying to pass a bill that will keep America safe, I have been willing to make those concessions.

I ask all of our colleagues, when it comes to passing this legislation, to try to find a way to allow us to have that up- or-down vote so we can reauthorize the PATRIOT Act and the American people will know we have done everything within our power to try to keep them safe, which is, in fact, the No. 1 obligation of the Federal Government--our national security.

With that, I yield the floor.

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