Foreign Intelligence Surveillance Act

Floor Speech

FOREIGN INTELLIGENCE SURVEILLANCE ACT -- (Senate - February 28, 2008)

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, I am sorry that the Senator from New Hampshire, who spoke relative to the Foreign Intelligence Surveillance Act, has left the floor. I was hoping he would be here. That is why I came down. Senator Gregg is a friend of mine, and I certainly wanted to make my remarks in front of him. I hope if he is nearby that he will come back to the floor.

He raised some serious questions about the security of the United States, and we have no greater responsibility under the Constitution than to protect this great Nation. The tragedy of 9/11 is still fresh in our memories, even though it was 6 1/2 years ago. We know that when we work together on a bipartisan basis we can achieve the kind of results the American people expect, not only of the Congress but of our entire Government.

This Foreign Intelligence Surveillance Act has been the source of some frustration. Understand how this started. This is a program where the Government listens to the communications of other people in the hopes that they can intercept information and with that information avoid another tragedy. That is time and money well spent. The best line of defense against terrorism is good intelligence. We want to stop the 9/11 events of the future from ever occurring. So we certainly are all on board for that effort.

Here is the problem: The administration started doing this without the authority of law. There was a provision in the law which said that if this President, or any President, for purposes of national security and gathering of intelligence, wanted to reach out to find this information in the United States, there was a court that was established, a FISA Court, Foreign Intelligence Surveillance Court, and this court would approve surveillance orders in secret, on an expedited basis, using a lower standard than a normal court. That was the standard in the law. It was a standard that was consistent with our Constitution.

If our intelligence agencies want to listen in on the conversation of an American citizen in this country, it is necessary to go for a court order. So, when it comes to the privacy of American people, you have another branch of Government looking at the executive branch of Government, saying: This is fair, this is constitutional, this is legal, you can do this. In the criminal justice process, there is reasonable cause to believe that a crime has been committed. Similarly, in the FISA area--the area of foreign intelligence surveillance--there is a reasonable belief that a suspected terrorist or spy is involved in the communication.

Now, the FISA court was very cooperative with every President. In fact, it overwhelmingly approved requests, and in only a tiny percentage of cases were questions ever raised. If the President, through his agencies, said, I need to listen in on a conversation, this court said, yes, do it, keep America safe, in the overwhelming majority of cases. So it wasn't a novel process. It was one well established in the law, but it was one that this administration avoided.

They started this surveillance program, the so-called warrantless wiretapping program, but didn't follow the existing law. They didn't go to the existing court. They did it on their own, and they did it for years. It wasn't until this program was disclosed to the American people by the New York Times that we had any personal knowledge that it was going on. There may have been a handful of Members of Congress at the highest levels of the Intelligence Committee who knew about it, but most of us did not and weren't given the information.

So the information becomes public that this warrantless wiretapping is going on after 9/11, a program not authorized by law, and it is challenged in court. When the court takes a look at it, the court says, as good as the reason may have been for this program, as good as its purpose may have been, this President, no President, is above the law. You need a law authorizing you to do what you are currently doing. So then the President came to Congress asking for changes in the Foreign Intelligence Surveillance Act so the power of the President over the new technology that is available around the world would be consistent with the law. That is the legislation that is before us, a bill to amend the Foreign Intelligence Surveillance Act.

We talked about changes in the law, and we made changes in the law. We were moving along on, I think, a positive track toward reforming, changing, amending this law to meet the current needs of keeping America safe. But there was one nagging issue out there, and it was the issue of telephone companies. Here is what it was all about.

Telephone companies doing business in America have a responsibility under the law. That responsibility is to protect the identity and the communications of their customers. If I sign up with my BlackBerry or my cell phone with a telephone company, it is with the confidence that the company that is transferring my communication and my conversation is going to protect my privacy unless--unless a court steps in and says, we have reason to believe a crime was committed or that a party to this conversation is a terrorist or a spy. We need to listen in to this conversation. That has been the standard in America. It was the standard facing the telephone companies.

So the President, through his intelligence agencies, during the period when this warrantless wiretapping program was going on--before it was made public; before it was authorized by law--went to the telephone companies and said, we want the conversations of certain people who are your customers. So the question is: Were the telephone companies doing their patriotic duty under the law by turning over this information, or did they go too far? Did the President misrepresent his authority at that time, or did he not?

These are legitimate questions. Some say, well, wouldn't we err on the side of caution and say to the telephone companies: Cooperate. We don't want another 9/11. Well, of course, we would. And you can understand in the heat of the moment, in the emotion after 9/11, why, when these telephone companies were asked to help, they did it.

I have seen the documentation presented to us in closed session. All I can say about it is, it was extremely limited. There was no legal brief given to the telephone companies saying, this is the authority of the President. It was a very scant document with very little information in it. But this program went on way beyond 2001, 2002. It went on for years. And for years the telephone companies were surrendering this private information about their customers and access to their customers' conversations in a questionable situation under the law.

Some people are testing that in court. They want to know if the telephone companies went too far, if they broke the law, if they violated the Constitution. The President's belief, and the belief of many, is they shouldn't be challenged in court. They shouldn't be held accountable in court. They shouldn't have to answer as to whether they lived up to the law. There are others, like myself, who believe neither a President nor a telephone company is above the law.

If a telephone company, I believe, goes into court facing one of these challenges, and faces any jury of Americans and says, immediately after 9/11 we did what we thought would keep America safe, I would put all my money on that telephone company winning that part of the lawsuit. I think the American people would come down on their side. But there are important questions still unresolved as to whether these telephone companies went too far and whether we should be careful in the future not to give any President, this one or any future President, powers beyond the law. That is really what this battle comes down to.

The reason I was hoping the Senator from New Hampshire would stay on the floor is that I wanted to ask him, as I have asked every Republican Senator who has brought up this issue, if they are arguing that somehow or another the current situation--debating this law on foreign intelligence surveillance--is making living in America more dangerous, then they have to answer a very simple question: Why, repeatedly, over the last several weeks, when the Democrats offered to extend the law so it would continue without any missing intelligence in terms of the surveillance efforts being made, why did the Republicans, the President's party, consistently object to extending the law?

They can't have it both ways. They can't argue we are in a more dangerous situation because the law is not in place, and then object to extending the law. This is exactly what they are doing. They cannot have it both ways.

We have tried repeatedly to extend the Protect America Act while we debate what to do with the lawsuits involving telephone companies, and they have said no, let it expire. Then, they have gone public with television ads and speeches on the floor saying, woe is me, it looks like this law is going to expire, but it is because they objected to extending the law.

They are trying to play both sides of this issue politically, and that doesn't work. It is totally inconsistent, illogical, and I don't believe it is the right thing to do for this country. Let's finish this debate between the House and the Senate as to the liability of telephone companies, whether there will be immunity or liability. Let's reach an end point in terms of that debate on a timely basis. But in the meantime, why do the Republicans continue to object to extending this law so that there is no gap in coverage, so that there is no gap in the protection it offers to the people of this country? I think that is an important element that was missed in the earlier statement.

I wish to read, if I can, from what the USA Today recently said in an editorial.

Bush is pressing the House to accept the Senate bill and refusing to temporarily extend the current law, which recently expired.

According to the USA Today, they say:

That's irresponsible. The House and Senate need time to negotiate their differences because the House has no telecom immunity provision. Bush's implication that expiration of the law would expose the Nation to terrorist dangers is worse than disingenuous: The eavesdropping authorizations under the law continue for a year. Crucial decisions about civil liberties in an age of terror shouldn't be driven by fear-mongering.

That was from the USA editorial.

I think this President, unfortunately, is manufacturing a crisis. This is the same thing we heard from this President and this administration in the lead-up to our invasion of Iraq. They painted the most frightening picture of Iraq and Saddam Hussein--weapons of mass destruction which could be aimed at our allies in the Middle East, such as Israel, and aimed at the United States; Condoleezza Rice talking about mushroom-shaped clouds and nuclear weapons striking the United States; drawing linkage between Saddam Hussein and 9/11, when no linkage existed. That was the climate of fear this administration created before they asked this Senate to vote on whether we should authorize the invasion of Iraq.

They are trying to create a new climate of fear on the Foreign Intelligence Surveillance Act. That is fundamentally unfair to the American people. I must warn this President, and every President: The American people will only be frightened by red alerts, orange alerts, and all this rhetoric for so long before they turn it off. We don't ever want to reach that point. We want to make certain when we tell the American people a danger exists, it truly does exist.

If any danger exists now from the expiration of the Protect America Act, it is a danger created by the President's party in objecting to our efforts to extend this law. They cannot have it both ways. They cannot object to extending this law and then say to the American people: Be afraid. Be really afraid, because this law hasn't been extended. That is exactly what has happened.

Time and again this administration's allies have pressured Congress to consider controversial proposals immediately before an election. Now we see them raising another security issue in the run-up to an election. This comes from a playbook written by former adviser Karl Rove that the administration has used over and over again. Think about that vote for the authorization of war in the climate of fear the administration created, and then think of the reality of what we found on the ground when we went into Iraq. Despite heroic efforts by our men and women in uniform, despite their successes in deposing Saddam Hussein, despite the expenditure of billions of dollars, we have never, ever uncovered one shred of evidence of weapons of mass destruction that this administration warned us about.

Not one shred of evidence of nuclear devices aimed at the United States or any other country, not one shred of evidence linking Saddam Hussein to 9/11. All of the fear generated by this administration before that vote has not been substantiated.

But the invasion of Iraq has been substantiated in another way, in almost 4,000 Americans' lives that have been lost, 25,000 seriously wounded, and at a cost to the United States and our Treasury--record amounts. By the end of this year, it is estimated we will have spent $1 trillion on this war that this President created on a foreign policy decision which I think may be the worst in my lifetime and sadly endangering so many brave, courageous soldiers who serve our country in uniform and risk their lives when called to duty. It is unfortunate.

Yesterday, at the insistence of the Republicans, we ground to a halt the debate on the war policy in Iraq. It means we will have to wait several months. When we return to it, there will be more than 4,000 American casualties in this war, there will be more injured soldiers, and there will be more money spent.

This President is trying to run out the clock. He wants to leave that White House on January 20, 2009, turn the keys over to his successor, and say: Good luck in Iraq--to leave two wars behind and to leave the United States in turmoil in terms of our foreign policy around the world.

Well, it is imperative now that we have the truth on the floor, and the truth is that we have tried to extend this in law despite the objections of Republican Senators. The truth is that we can work out our differences, and we should do so in a bipartisan way. We all have the same goal here: Keep America safe.

We also want to make sure that when it comes to the use of military commissions for the trials of would-be terrorists, we have a commission or at least some form of justice that will stand up to the test of our Constitution.

I do not want a single person released from our detention, wherever they may be, who can endanger the United States. I want them all held responsible for what they have done to endanger us. But the fact is, there has been only one conviction in the 6 years, 6 1/2 years since 9/11. The fact is, what has happened in Guantanamo has been the securing and detention of hundreds of prisoners for years at a time, many of whom have been released without a charge, to return back to their families and back to their countries with a bitter taste in their mouth about justice under this administration.

The American people will take a hard look at this issue in this election, as they should. One would hope the administration would have learned a lesson from what has occurred with the invasion of Iraq and what has occurred every time they have heightened fears before an election campaign.

The American people have the final word. Now the President is claiming our security is at risk because this Protect America Act has expired. But at the same time, his party, the Republican Party, has time and again objected to extending this law. The American people have heard this song before. They are not going to buy it.

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