Congressional Record: January 20, 2006 (Senate)
Page S28-S30                       


  Mr. LEAHY (for himself and Mr. Kennedy) submitted the following 
resolution; which was referred to the Committee on the Judiciary:

                              S. Res. 350

       Whereas the Bill of Rights to the United States 
     Constitution was ratified 214 years ago;
       Whereas the Fourth Amendment to the United States 
     Constitution guarantees to the American people the right ``to 
     be secure in their persons, houses, papers, and effects, 
     against unreasonable searches and seizures'';
       Whereas the Fourth Amendment provides that courts shall 
     issue ``warrants'' to authorize searches and seizures, based 
     upon probable cause;
       Whereas the United States Supreme Court has consistently 
     held for nearly 40 years that the monitoring and recording of 
     private conversations constitutes a ``search and seizure'' 
     within the meaning of the Fourth Amendment;
       Whereas Congress was concerned about the United States 
     Government unconstitutionally spying on Americans in the 
     1960s and 1970s;
       Whereas Congress enacted the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), commonly 
     referred to as ``FISA'', to provide a legal mechanism for the 
     United States Government to engage in searches of Americans 
     in connection with intelligence gathering and 
       Whereas Congress expressly enacted the Foreign Intelligence 
     Surveillance Act of 1978, and specified provisions of the 
     Federal criminal code (including those governing wiretaps for 
     criminal investigations), as the ``exclusive means by which 
     domestic electronic surveillance . . . may be conducted'' 
     pursuant to law (18 U.S.C. 2511(2)(f));
       Whereas the Foreign Intelligence Surveillance Act of 1978 
     establishes the Foreign Intelligence Surveillance Court 
     (commonly referred to as the ``FISA court''), and the 
     procedures by which the United States Government may obtain a 
     court order authorizing electronic surveillance (commonly 
     referred to as a ``FISA warrant'') for foreign intelligence 
     collection in the United States;
       Whereas Congress created the FISA court to review 
     wiretapping applications for domestic electronic surveillance 
     to be conducted by any Federal agency;
       Whereas the Foreign Intelligence Surveillance Act of 1978 
     provides specific exceptions that allow the President to 
     authorize warrantless electronic surveillance for foreign 
     intelligence purposes (1) in emergency situations, provided 
     an application for judicial approval from a FISA court is 
     made within 72 hours; and (2) within 15 calendar days 
     following a declaration of war by Congress;
       Whereas the Foreign Intelligence Surveillance Act of 1978 
     makes criminal any electronic surveillance not authorized by 
       Whereas the Foreign Intelligence Surveillance Act of 1978 
     has been amended over time by Congress since the September 
     11, 2001, attacks on the United States;
       Whereas President George W. Bush has confirmed that his 
     administration engages in warrantless electronic surveillance 
     of Americans inside the United States and that he has 
     authorized such warrantless surveillance more than 30 times 
     since September 11, 2001; and
       Whereas Senate Joint Resolution 23 (107th Congress), as 
     adopted by the Senate on September 14, 2001, and House Joint 
     Resolution 64 (107th Congress), as adopted by the House of 
     Representatives on September 14, 2001, together enacted as 
     the Authorization for Use of Military Force (Public Law 107-
     40), to authorize military action against those responsible 
     for the attacks on September 11, 2001, do not contain legal 
     authorization nor approve of domestic electronic 
     surveillance, including domestic electronic surveillance of 
     United States citizens, without a judicially approved 
     warrant: Now, therefore, be it
       Resolved, That Senate Joint Resolution 23 (107th Congress), 
     as adopted by the Senate on September 14, 2001, and 
     subsequently enacted as the Authorization for Use of Military 
     Force (Public Law 107-40) does not authorize warrantless 
     domestic surveillance of United States citizens.

  Mr. LEAHY. Mr. President, today I am submitting this resolution 
expressing the sense of the Senate that the Authorization for Use of 
Military Force, which Congress passed to authorize military action 
against those responsible for the attacks on September 11, 2001, did 
not authorize warrantless eavesdropping on American citizens.
  As Justice O'Connor underscored recently, even war ``is not a blank 
check for the President when it comes to the rights of the Nation's 
  Now that the illegal spying of Americans has become public and the 
President has acknowledged the 4-year-old program, the Bush 
administration's lawyers are contending that Congress authorized it. 
The September 2001 Authorization to Use Military Force did no such 
thing. Republican Senators also know it and a few have said so 
publicly. We all know it. The liberties and rights that define us as 
Americans and the system of checks and balances that serve to preserve 
them should not be sacrificed to threats of terrorism or to the 
expanding power of the government. In the days immediately following 
those attacks, I said, and I continue to believe, that the terrorists 
win if they frighten us into sacrificing our freedoms and what defines 
us as Americans.
  I well remember the days immediately after the 9/11 attacks. I helped 
open the Senate to business the next day. I said then, on September 12, 

       ``If we abandon our democracy to battle them, they win. . . 
     . We will maintain our democracy, and with justice, we will 
     use our strength. We will not lose our commitment to the rule 
     of law, no matter how much the provocation, because that rule 
     of law has protected us throughout the centuries. It has 
     created our democracy. It has made us what we are in history. 
     We are a just and good Nation.''

  I joined with others, Republican and Democrats, and we engaged in 
round-the-clock efforts over the next months in connection with what 
came to be the USA PATRIOT Act. During those days the Bush 
administration never asked us for this surveillance authority or to 
amend the Foreign Intelligence Surveillance Act to accommodate such a 
  Just as we cannot allow ourselves to be lulled into a sense of false 
comfort when it comes to our national security, we cannot allow 
ourselves to be lulled into a blind trust regarding our freedoms and 
rights. The Framers built checks and balances into our system 
specifically to counter such abuses and undue assertions of power. We 
must remain vigilant on all fronts or we stand to lose these rights 
forever. Once lost or eroded, liberty is difficult if not impossible to 
restore. The Bush administration's after-the-fact claims about the 
breadth of the Authorization to Use Military Force--as recently as this 
week, in a document prepared at the White House's behest by the 
Department of Justice--are the latest in a long line of manipulations 
of the law.

[[Page S29]]

We have also seen this type of overreaching in that same Justice 
Department office's twisted interpretation of the torture statute, an 
analysis that had to be withdrawn; with the detention of suspects 
without charges and denial of access to counsel; and with the 
misapplication of the material witness statute as a sort of general 
preventive detention law. Such abuses serve to harm our national 
security as well as our civil liberties.

  In addition, the press reports that the Pentagon maintains secret 
databases containing information on a wide cross-section of ordinary 
Americans, and that the FBI is monitoring law-abiding citizens in the 
exercise of their First Amendment freedoms. When I worked with Senator 
Wyden and others in 2003 to stop Admiral Poindexter's Total Information 
Awareness program, an effort designed to datamine information on 
Americans--and we meant it. And when I added a reporting requirement on 
Carnivore, the FBI's
e-mail monitoring program, to the Department of Justice Authorizations 
law in 2002, we meant it. We demanded that Congress be kept informed 
and that any such program not proceed without congressional 
  The New York Times reported that after September 11, 2001, when 
former Attorney General John Ashcroft loosened restrictions on the FBI 
to permit it to monitor Web sites, mosques, and other public entities, 
``the FBI has used that authority to investigate not only groups with 
suspected ties to foreign terrorists, but also protest groups suspected 
of having links to violent or disruptive activities.'' When I learned 
of such efforts and that they reportedly included monitoring Quakers in 
Florida and possibly Vermont, I wrote to the Secretary of Defense 
demanding an answer. That was a month ago. So far he has refused to 
provide that answer.
  Now we have learned that President Bush has, for more than four 
years, secretly allowed the warrantless wiretapping of Americans inside 
the United States. And we read in the press that sources at the FBI say 
that much of what was forwarded to them to investigate was worthless 
and led to dead ends. That is a dangerous diversion of our 
investigative resources away from those who pose real threats, while 
precious time and effort is devoted to looking into the lives of law-
abiding Americans.
  The United States Supreme Court has consistently held for nearly 40 
years, since its landmark decision in Katz v. United States, that the 
monitoring and recording of private conversations constitutes a 
``search and seizure'' within the meaning of the Fourth Amendment. 
Congress enacted the Foreign Intelligence Surveillance Act of 1978, 
FISA, to provide a legal mechanism for the government to engage in 
electronic surveillance of Americans in connection with intelligence 
gathering. The Foreign Intelligence Surveillance Act, along with the 
criminal wiretap authority in title 18 of the United States Code, 
together provide the exclusive means by which the Government may 
intercept domestic electronic communications pursuant to the rule of 
  The Foreign Intelligence Surveillance Act has been amended over time, 
and it has been adjusted several times since the 9/11 attacks. Indeed, 
much of the PATRIOT Act was devoted to modifying FISA to make it easier 
to obtain FISA warrants. But the PATRIOT Act did not amend FISA to give 
the Government the authority to conduct warrantless surveillance of 
American citizens.

  If the Bush administration believed that the law was inadequate to 
deal with the threat of terrorism within our boundaries, it should have 
come to Congress and sought to change the law. It did not. Indeed, 
Attorney General Gonzales admitted at a press conference on December 
19, 2005, that the Administration did not seek to amend FISA to 
authorize the NSA spying program because it was advised that ``it was 
not something we could likely get.''
  I chaired the Senate Judiciary Committee in 2001 and 2002, when the 
President's secret eavesdropping program apparently began. I was not 
informed of the program. I learned about it for the first time in the 
press last month. I thank heaven and the Constitution that we still 
have a free press.
  The Bush administration is now arguing that when Congress authorized 
the use of force in September 2001 to attack al Qaeda in Afghanistan, 
it authorized warrantless searches and eavesdropping on American 
citizens. I voted for that authorization, and I know that Congress did 
not sign a blank check. The notion that Congress authorized warrantless 
surveillance in the AUMF is utterly inconsistent with the Attorney 
General's admission that Congress was not asked for such authorization 
because it was assumed that Congress would say no.
  Former Senate Majority Leader Tom Daschle, who helped negotiate the 
use of force resolution with the White House, has confirmed that the 
subject of warrantless wiretaps of American citizens never came up, 
that he did not and never would have supported giving authority to the 
President for such wiretaps, and that he is ``confident that the 98 
senators who voted in favor of authorization of force against al Qaeda 
did not believe that they were also voting for warrantless domestic 
  Senator Daschle also noted that the Bush administration sought to add 
language to the resolution that would have explicitly authorized the 
use of force ``in the United States,'' but Congress refused to grant 
the President such sweeping power. Maybe that was this Administration's 
covert way to seek the authority to spy on Americans, but Congress did 
not grant any such authority.
  Spying on Americans without first obtaining the requisite warrants is 
illegal, unnecessary and wrong. No President can simply declare when he 
wishes to follow the law and when he chooses not to, especially when it 
comes to the hard-won rights of the American people.
  The resolution I submit today is intended to help set the record 
straight. It is an important first step toward restoring checks and 
balances between the co-equal branches of government. I urge all 
Senators to support it.
  Mr. KENNEDY. Mr. President, what is past is prologue. Today, we see 
history repeating itself. In 1978, President Carter signed into law the 
``Foreign Intelligence Surveillance Act,'' successfully concluding 
years of debate on the power of the President to conduct national 
security wiretapping.
  As a result of lengthy hearings and consultation, Congress enacted 
that law with broad bipartisan support. Its purpose was clear--to put a 
check on the power of the President to use wiretaps in the name of 
national security. One of the clear purposes of that law was to require 
the government to obtain a judicial warrant for all electronic 
surveillance in the United States in which communications of U.S. 
citizens might be intercepted. The Act established a secret court, the 
Foreign Intelligence Surveillance Court, to review wiretapping 
applications and guarantee that any such electronic surveillance 
followed the rule of law. Since 1979, the special court has approved 
nearly 19,000 applications and denied only 4. Last year, the 
Administration reached an all-time-high with the number of applications 
  In the Foreign Intelligence Surveillance Act, Congress established 
the exclusive means by which electronic surveillance could be conducted 
in the United States for national security purposes. One of the 
principal goals of the legislation was to ensure that information 
obtained from illegal wiretaps could not be used to obtain a warrant 
from the Foreign Intelligence Surveillance Court. We even made sure 
that there would be criminal penalties for anyone who failed to comply 
with these rules.
  The PATRIOT Act did not give the President the authority to spy on 
anyone without impartial judicial review--and neither did the Joint 
Resolution, enacted in 2001, authorizing the use of force against those 
responsible for the attacks of September 11th.
  The President seemed to agree. In 2004, in Buffalo he stated 
categorically that ``any time that you hear the United States talking 
about a wiretap, it requires a court order.'' He said that ``Nothing 
had changed--when we're talking about chasing down terrorists, we're 
talking about getting a court order before we do so.''
  Now, however, the President and the administration claim they do not 
have to comply with the law. Just yesterday, the administration again 

[[Page S30]]

its constitutional authority to eavesdrop on any person within the 
United States--without judicial or legislative oversight and it claims 
that the Congress implicitly granted such power in the Joint Resolution 
of 2001.
  But that Joint Resolution says nothing about domestic electronic 
surveillance. As Justice O'Connor has said, ``A state of war is not a 
blank check for the president when it comes to the rights of the 
nation's citizens.''
  The bipartisan 9/11 Commission made clear that the Executive Branch 
has the burden of proof to justify why a particular governmental power 
should be retained--and Congress has the responsibility to see that 
adequate guidelines and oversight are made available.
  The Executive Branch has failed to meet the 9/11 Commissioners' 
burden of proof. The American people are not convinced that these 
surveillance methods achieve the right balance between our national 
security and protection of our civil liberties.
  These issues go to the heart of what it means to have a free society. 
If President Bush can make his own rules for domestic surveillance, Big 
Brother has run amok. If the President believes that winning the war on 
terror requires new surveillance capabilities, he has a responsibility 
to work with Congress to make appropriate changes in existing law. He 
is not above the law.
  Congress and the American people deserve full and honest answers 
about the Administration's domestic electronic surveillance activities. 
On December 22, 2005, I asked the President to provide us with answers 
before the Senate Judiciary Committee began hearings on Judge Alito's 
nomination to the Supreme Court. We got no response. The Senate 
Judiciary Committee is scheduled to begin separate hearings on February 
6 on the President's actions. Instead of providing us with the 
documents the Administration relied upon, the Justice Department 
continues to circulate summaries and ``white papers'' on the legal 
authorities it purports to have to ignore the law. It now appears that 
the President did so on at least thirty occasions after September 11. 
There is no legitimate purpose in denying access by Members of Congress 
to all of the legal thought and analysis that the President relied upon 
when he authorized these activities.
  Every 45 days, the President ordered these activities to be reviewed 
by the Attorney General, the White House Counsel and the Inspector 
General of the National Security Agency. That's not good enough. These 
are all executive branch appointees who report directly to the 
  Congress spent seven years considering and enacting the Foreign 
Intelligence Surveillance Act. It was not a hastily conceived idea. We 
had broad agreement that both Congressional oversight and judicial 
oversight were fundamental--even during emergencies or times of war, 
which is why we established a secret court to expedite the review of 
sensitive applications from the government.
  Now, the administration has made a unilateral decision that 
Congressional and judicial oversight can be discarded, in spite of what 
the law obviously requires. We need a thorough investigation of these 
activities. Congress and the American people deserve answers, and they 
deserve answers now.