Congressional Record: February 15, 2006 (Senate)
Page S1338-S1344

                               TO PROCEED


  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from 
Vermont for his characteristic kindness and courtesy. I thank the 
distinguished Senator who has been alone in opposing this act in the 
beginning, at a time when I wish I had voted as he did.
  In June 2004, 10 peace activists outside of Halliburton, Inc., in 
Houston gathered to protest the company's war profiteering. They wore 
paper hats and were handing out peanut butter and jelly sandwiches, 
calling attention to Halliburton's overcharging on a food contract for 
American troops in Iraq.
  Unbeknownst to them, they were being watched. U.S. Army personnel at 
the top secret Counterintelligence Field Activity, or CIFA, saw the 
protest as a potential threat to national security.
  CIFA was created 3 years ago by the Defense Department. Its official 
role is forced protection; that is, tracking threat and terrorist plots 
against military installations and personnel inside the United States. 
In 2003, then Deputy Defense Secretary Paul Wolfowitz authorized a 
fact-gathering operation code named TALON, which stands for Threat and 
Local Observation Notice, which would collect raw information about 
suspicious incidents and feed it to CIFA.
  In the case of the ``peanut butter'' demonstration, the Army wrote a 
report on the activity and stored it where? In its files. Newsweek 
magazine has reported that some TALON reports may have contained 
information on U.S. citizens that has been retained in Pentagon files. 
A senior Pentagon official has admitted that the names of these U.S. 
citizens could number in the thousands. Is this where we are heading? 
Is this where we are heading in

[[Page S1339]]

this land of the free? Are secret Government programs that spy on 
American citizens proliferating? The question is not, is Big Brother 
watching? The question is, how many big brothers have we?
  Ever since the New York Times revealed that President George W. Bush 
has personally authorized surveillance of American citizens without 
obtaining a warrant, I have become increasingly concerned about dangers 
to the people's liberty. I believe that both current law and the 
Constitution may have been violated, not just once, not twice, but many 
times, and in ways that the Congress and the American people may never 
know because of this White House and its penchant for control and 
  We cannot continue to claim we are a nation of laws and not of men if 
our laws, and indeed even the Constitution of the United States itself, 
may be summarily breached because of some determination of expediency 
or because the President says, ``Trust me.''
  The Fourth Amendment reads clearly:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures shall not be violated, and no warrants shall 
     issue, but upon probable cause, supported by oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  The Congress has already granted the executive branch rather 
extraordinary authority with changes in the Foreign Intelligence 
Surveillance Act that allow the Government 72 hours after surveillance 
has begun to apply for a warrant. If this surveillance program is what 
the President says it is, a program to eavesdrop upon known terrorists 
in other countries who are conversing with Americans, then there should 
be no difficulty in obtaining a warrant within 72 hours. One might be 
tempted to suspect that the real reason the President authorized 
warrantless surveillance is because there is no need to have to bother 
with the inconveniences of probable cause. Without probable cause as a 
condition of spying on American citizens, the National Security Agency 
could, and can, under this President's direction, spy on anyone, and 
for any reason.
  How do you like that? How about that? We have only the President's 
word, his ``trust me,'' to protect the privacy of the law-abiding 
citizens of this country. One must be especially wary of an 
administration that seems to feel that what it judges to be a good end 
always justifies any means. It is, in fact, not only illegal under our 
system, but it is morally reprehensible to spy on citizens without 
probable cause of wrongdoing.
  When such practices are sanctioned by our own President, what is the 
message we are sending to other countries that the United States is 
trying to convince to adopt our system? It must be painfully obvious 
that a President who can spy on any citizen is very unlike the model of 
democracy the administration is trying to sell abroad.
  In the name of ``fighting terror,'' are we to sacrifice every freedom 
to a President's demand? How far are we to go? Can a President order 
warrantless, house-to-house searches of a neighborhood where he 
suspects a terrorist may be hiding? Can he impose new restrictions on 
what can be printed, what can be broadcast, what can be uttered 
privately because of some perceived threat--perceived by him--to 
national security? Laughable thoughts? I think not.
  This administration has so traumatized the people of this Nation, and 
many in the Congress, that some will swallow whole whatever rubbish 
that is spewed from this White House, as long as it is in some tenuous 
way connected to the so-called war on terror. And the phrase ``war on 
terror,'' while catchy, certainly is a misnomer. Terror is a tactic 
used by all manner of violent organizations to achieve their goal. This 
has been around since time began and will likely be with us until the 
last day of planet Earth.
  We were attacked by bin Laden and by his organization, al-Qaida. If 
anything, what we are engaged in should more properly be called a war 
on the al-Qaida network. But that is too limiting for an administration 
that loves power as much as this one. A war on the al-Qaida network 
might conceivably be over someday. A war on the al-Qaida network might 
have achievable, measurable objectives, and it would be less able to be 
used as a rationale for almost any Government action. It would be 
harder to periodically traumatize the U.S. public, thereby justifying a 
reason for stamping ``secret'' on far too many Government programs and 
  Why hasn't Congress been thoroughly briefed on the President's secret 
eavesdropping program, or on other secret domestic monitoring programs 
run by the Pentagon or other Government entities? Is it because keeping 
official secrets prevents annoying congressional oversight? Revealing 
this program in its entirety to too many Members of Congress could 
certainly have unmasked its probable illegality at a much earlier date, 
and may have allowed Members of Congress to pry information out of the 
White House that the Senate Judiciary Committee could not pry out of 
Attorney General Gonzales, who seemed generally confused about for whom 
he works--the public or his old boss, the President.
  Attorney General Gonzales refused to divulge whether purely domestic 
communications have also been caught up in this warrantless 
surveillance, and he refused to assure the Senate Judiciary Committee 
and the American public that the administration has not deliberately 
tapped Americans' telephone calls and computers or searched their homes 
without warrants. Nor would he reveal whether even a single arrest has 
resulted from the program.
  What about the first amendment? What about the chilling effect that 
warrantless eavesdropping is already having on those law-abiding 
American citizens who may not support the war in Iraq, or who may 
simply communicate with friends or relatives overseas? Eventually, the 
feeling that no conversation is private will cause perfectly innocent 
people to think carefully before they candidly express opinions or even 
say something in jest.
  Already we have heard suggestions that freedom of the press should be 
subject to new restrictions. Who among us can feel comfortable knowing 
that the National Security Agency has been operating with an expansive 
view of its role since 2001, forwarding wholesale information from 
foreign intelligence communication intercepts involving American 
citizens, including the names of individuals to the FBI, in a departure 
from past practices, and tapping some of the country's main 
telecommunication arteries in order to trace and analyze information?
  The administration could have come to Congress to address any aspects 
of the FISA law in the revised PATRIOT Act which the administration 
proposed, but they did not, probably because they wished the completely 
unfettered power to do whatever they pleased, the laws and the 
Constitution be damned.
  I plead with the American public to tune in to what is happening in 
this country. Please forget the political party with which you may 
usually be associated and, instead, think about the right of due 
process, the presumption of innocence, and the right to a private life. 
Forget the now tired political spin that if one does not support 
warrantless spying, then one may be less than patriotic.
  Focus on what is happening to truth in this country and then read 
President Bush's statement to a Buffalo, NY, audience on April 24, 

       Any time you hear the United States Government talking 
     about wiretap, it requires--a wiretap requires a court order. 
     Nothing has changed, by the way. When we are talking about 
     chasing down terrorists, we are talking about getting a court 
     order before we do so.

  That statement is false, and the President knew it was false when he 
made it because he had authorized the Government to wiretap without a 
court order shortly after the 2001 attacks.
  This President, in my judgment, may have broken the law and most 
certainly has violated the spirit of the Constitution and the public 
  Yet I hear strange comments coming from some Members of Congress to 
the effect that, well, if the President has broken the law, let's just 
change the law. That is tantamount to saying that whatever the 
President does is legal, and the last time we heard that claim was from 
the White House of Richard M. Nixon. Congress must rise to the occasion 
and demand answers to the serious questions surrounding warrantless

[[Page S1340]]

spying. And Congress must stop being spooked by false charges that 
unless it goes along in blind obedience with every outrageous violation 
of the separation of powers, it is soft on terrorism. Perhaps we can 
take courage from the American Bar Association which, on Monday, 
February 13, denounced President Bush's warrantless surveillance and 
expressed the view that he had exceeded his constitutional powers.
  There is a need for a thorough investigation of all of our domestic 
spying programs. We have to know what is being done by whom and to 
whom. We need to know if the Federal Intelligence Surveillance Act has 
been breached and if the Constitutional rights of thousands of 
Americans have been violated without cause. The question is: Can the 
Congress, under control of the President's political party, conduct the 
type of thorough, far-ranging investigation which is necessary. It is 
absolutely essential that Congress try because it is vital to at least 
attempt the proper restoration of the checks and balances. 
Unfortunately, in a Congressional election year, the effort will most 
likely be seriously hampered by politics. In fact, today's Washington 
Post reports that an all-out White House lobbying campaign has 
dramatically slowed the congressional probe of NSA spying and may kill 
  I want to know how many Americans have been spied upon. Yes, I want 
to know how it is determined which individuals are monitored and who 
makes such determinations. Yes, I want to know if the 
telecommunications industry is involved in a massive screening of the 
domestic telephone calls of ordinary Americans like you and me. I want 
to know if the U.S. Post Office is involved. I want to know, and the 
American people deserve to know, if the law has been broken and the 
Constitution has been breached.
  Historian Lord Acton once observed that:

       Everything secret degenerates, even the administration of 
     justice; nothing is safe that does not show how it can bear 
     discussion and publicity.

  The culture of secrecy, which has deepened since the attacks on 
September 11, has presented this Nation with an awful dilemma. In order 
to protect this open society, are we to believe that measures must be 
taken that in insidious and unconstitutional ways close it down? I 
believe that the answer must be an emphatic ``no.''
  I yield the floor.