[Congressional Record: May 25, 2006 (Senate)]
[Page S5296]

  Mr. OBAMA. Mr. President, let me start by saying that the nomination 
of General Hayden is a difficult one for me. I generally, as a rule, 
believe the President should be able to appoint members of his Cabinet, 
of his staff, to positions such as the one General Hayden is nominated 
for without undue obstruction from Congress.
  General Hayden is extremely well qualified for this position. Having 
previously served as head of the National Security Agency and as Deputy 
Director of National Intelligence under John Negroponte, he has 30 
years of experience in intelligence and national security matters. And 
he was nearly universally praised during his confirmation to Deputy 
  There are several members of the Intelligence Committee, including 
Senator Levin, who I hold in great esteem, who believe General Hayden 
has consistently displayed the sort of independence that would make him 
a fine CIA Director.
  Unfortunately, General Hayden is being nominated under troubling 
circumstances, as the architect and chief defender of a program of 
wiretapping and collection of phone records outside of FISA oversight. 
This is a program that is still accountable to no one and no law.
  Now, there is no one in Congress who does not want President Bush to 
have every tool at his disposal to prevent terrorist attacks--including 
the use of a surveillance program. Every single American--Democrat and 
Republican and Independent--who remembers the images of falling towers 
and needless death would gladly support increased surveillance in order 
to prevent another attack.
  But over the last 6 months, Americans have learned that the National 
Security Agency has been spying on Americans without judicial approval. 
We learned about this not from the administration, not from the regular 
workings of the Senate Intelligence Committee, but from the New York 
Times and USA Today. Every time a revelation came out, President Bush 
refused to answer questions from Congress.
  This is part of a general stance by this administration that it can 
operate without restraint. President Bush is interpreting article II of 
the Constitution as giving him authority with no bounds. The Attorney 
General and a handful of scholars agree with this view, and I do not 
doubt the sincerity with which the President and his lawyers believe in 
their constitutional interpretation. However, the overwhelming weight 
of legal authority is against the President on this one. This is not 
how our Constitution is designed, to give the President unbounded 
authority without any checks or balances.
  We do not expect the President to give the American people every 
detail about a classified surveillance program, but we do expect him to 
place such a program within the rule of law and to allow members of the 
other two coequal branches of Government--Congress and the judiciary--
to have the ability to monitor and oversee such a program. Our 
Constitution and our right to privacy as Americans require as much.
  Unfortunately, we were never given the chance to make that 
examination. Time and again, President Bush has refused to come clean 
to Congress. Why is it that 14 of 16 members of the Intelligence 
Committee were kept in the dark for 4\1/2\ years? The only reason that 
some Senators are now being briefed is because the story was made 
public in the newspapers. Without that information, it is impossible to 
make the decisions that allow us to balance the need to fight terrorism 
while still upholding the rule of law and privacy protections that make 
this country great.

  Every democracy is tested when it is faced with a serious threat. As 
a nation, we have had to find the right balance between privacy and 
security, between executive authority to face threats and uncontrolled 
power. What protects us, and what distinguishes us, are the procedures 
we put in place to protect that balance; namely, judicial warrants and 
congressional review. These are not arbitrary ideas. They are not new 
ideas. These are the safeguards that make sure surveillance has not 
gone too far, that somebody is watching the watchers.
  The exact details of these safeguards are not etched in stone. They 
can be reevaluated, and should be reevaluated, from time to time. The 
last time we had a major overhaul of the intelligence apparatus was 30 
years ago in the aftermath of Watergate. After those dark days, the 
White House worked in a collaborative way with Congress through the 
Church Committee to study the issue, revise intelligence laws, and set 
up a system of checks and balances. It worked then, and it could work 
now. But, unfortunately, thus far, this administration has made no 
effort to reach out to Congress and tailor FISA to fit the program that 
has been put in place.
  I have no doubt that General Hayden will be confirmed. But I am going 
to reluctantly vote against him to send a signal to this administration 
that even in these circumstances, even in these trying times, President 
Bush is not above the law. No President is above the law. I am voting 
against Mr. Hayden in the hope that he will be more humble before the 
great weight of responsibility that he has not only to protect our 
lives but to protect our democracy.
  Americans fought a Revolution in part over the right to be free from 
unreasonable searches--to ensure that our Government could not come 
knocking in the middle of the night for no reason. We need to find a 
way forward to make sure we can stop terrorists while protecting the 
privacy and liberty of innocent Americans. We have to find a way to 
give the President the power he needs to protect us, while making sure 
he does not abuse that power. It is possible to do that. We have done 
it before. We could do it again.
  Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that I be allowed 
to speak for 5 minutes before the Senator from Michigan speaks--he has 
graciously agreed to allow me to do that--and then he be given as much 
time as he needs.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Thank you, Mr. President. I want to first, again, thank 
Senator Carl Levin, who I know has been graciously acceding all night. 
So he will be the last person to speak here, but I very much appreciate 
it. And I know all of my colleagues do.