Congressional Record: February 17, 2006 (Senate)
Page S1457-S1458                       


  Mr. BYRD. Mr. President, in his radio address on December 17, 2005, 
President Bush disclosed that after September 11, 2001, he authorized 
the National Security Agency, NSA, to undertake wiretapping of American 
citizens to try to prevent terrorist attacks. The President argued that 
his actions were, in his words, ``fully consistent'' with his 
constitutional responsibilities.
  The President wrongly asserted--Mr. President, the President wrongly 
asserted--that his authority to order warrantless electronic 
surveillance of U.S. citizens on American soil is supported by his 
inherent Presidential powers and the joint congressional resolution 
that authorized the use of force after September 11.
  A huge swath--a huge swath--of America, including many expert legal 
minds, does not--I say, does not--agree

[[Page S1458]]

with the arguments put forth by the administration. These arguments are 
transparently contrived, intellectually deficient, indefensible excuses 
being served up like tripe to silence legitimate criticism of the White 
  Let me say that again. A huge swath of America, including many expert 
legal minds, does not agree with the arguments put forth by the 
administration. These arguments are transparently contrived, 
intellectually deficient, indefensible excuses being served up like 
tripe to silence legitimate criticism of the White House, a White House 
so infused with its own hubris that it has talked itself into believing 
that its inhabitants are above the law. But they are not. They are not 
above the law. President Bush is not above the law. No President is 
above the law. No United States Senator is above the law. No man is 
above the law. No one in the United States of America is above the law. 
Remember, this is a nation of laws, not of men.
  Yesterday, the Senate's Select Committee on Intelligence jettisoned 
its constitutional responsibility to make certain that our laws are not 
being breached, and that the spirit and text of our revered 
Constitution remain in force. It is a sad day, indeed, to see such an 
important committee wilt under political pressure applied by the Vice 
President in partisan meetings held behind closed doors. The committee 
adjourned last night without considering a Democratic proposal to begin 
an investigation of the warrantless spying program, even though Senator 
Jay Rockefeller, the vice-chairman of the Intelligence Committee, had 
been assured that his proposal would receive a vote.
  I want to commend my colleague, Senator Rockefeller. He has worked 
hard to protect the people's liberties, to make sure that this 
administration, even in its most secret circles, follows the law and 
the Constitution. It has not been an easy task, but it is one that 
Senator Rockefeller has carried diligently.
  Like Senator Rockefeller, I will not sit idly by and allow the 
President's possible breaking of the law to be swept under the rug. I 
refuse to go quietly into the night, abdicating my responsibility as a 
U.S. Senator to a secretive executive branch, which refuses to brief 
the Congress of the United States on its clandestine spying on U.S. 
citizens without a warrant--an administration that believes it can, on 
its own, nullify constitutional provisions intended to protect the 
freedoms of millions of Americans for over 200 years.
  This travesty must not stand. The peeping and snooping and spying 
must be investigated.
  I am today announcing my intention to submit to the Congress 
legislation that will establish a nonpartisan, independent, 9-11-style 
commission to investigate and determine the legality of the President's 
  There is a critical need for a thorough investigation of all domestic 
surveillance programs.
  As I stated on Wednesday in my remarks on this subject, we, the 
American people--not just the NSA or the White House--have a legitimate 
need to know what is being done, by whom, and to whom. If there is a 
justifiable and valid reason to surveil a potential terrorist in the 
U.S., we certainly can find a way to do it legally. If there is a need 
to provide more efficient tools to fight terror, Congress has the 
responsibility to deliberate and, if warranted, to approve them. The 
President should ask Congress for them; not seize new powers that have 
never been enumerated by any U.S. court.
  Congress would be pleased to entertain his request, as we have in the 
past, by updating FISA and the PATRIOT Act, but not--I repeat, not--
before a full investigation to determine if laws have been broken--an 
investigation which will give members a fuller understanding of just 
what these surveillance programs entail. A little sunshine on this 
process is long overdue. Congress cannot fix what the White House does 
not want us to fully understand.
  Congress needs to know if the Foreign Intelligence Surveillance Act 
or any other U.S. law has been broken, and whether the constitutional 
rights of thousands of Americans have been violated without cause. It 
is essential that Congress obtain the answers to these questions, not 
for partisan political reasons, but because our system of checks and 
balances requires it.
  James Madison advised in Federalist 47 that: the accumulation of all 
powers, legislative, executive and judiciary, in the same hands, 
whether of one, a few, or many, and whether hereditary, self-appointed, 
or elective, may justly be pronounced the very definition of tyranny.
  The assumption of power by an unchecked executive, who arrogantly 
believes that he can seize the authority to spy on innocent Americans 
and wantonly violate the fourth amendment is the beginning of the 
tyranny Madison so feared.
  Mr. President, I ask unanimous consent that the text of the fourth 
amendment of the Constitution be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  U.S. Constitution: Fourth Amendment

       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 particu1arly describing the place to be searched, and the 
     persons or things to be seized.
  Mr. BYRD. Mr. President, I yield the floor. I suggest the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so