Congressional Record: March 2, 2006 (Senate)
Page S1653-S1655                      


      By Mr. BYRD:
  S. 2362. A bill to establish the National Commission on Surveillance 
Activities and the Rights of Americans; to the Committee on the 
  Mr. BYRD. Mr. President, before the Presidents Day recess, I spoke 
about recent egregious examples of domestic surveillance by the 
executive branch, and I announced my intention to introduce legislation 
to establish a commission to investigate the instances of warrantless 
wiretapping and spying on U.S. citizens by the National Security Agency 
and other departments of Government.
  I am not the lone voice raising questions about the legality of this 
program and its effect on the rights of law-abiding American citizens. 
I am only one--only one--in a growing chorus--a growing chorus--of 
concerned individuals. Since the New York Times broke the story of the 
NSA's wiretapping program, many in this Chamber on both sides of the 
aisle have questioned the legality of the warrantless wiretapping and 
have called for investigations into possible violations of the Foreign 
Intelligence Surveillance Act, as well as other transgressions against 
the spirit or the letter of our revered Constitution.
  Many of our country's foremost constitutional scholars and professors 
of law have expressed their categorical opposition to the NSA's 
program, citing possible violations of both the Constitution and the 
Foreign Intelligence Surveillance Act. They agree that ``the program 
appears on its face''--on its face--``to violate existing law.''
  These concerns have, of course, been dismissed by the same branch of 
Government that hatched the domestic spying program. Did you hear that? 
I will say it again. These concerns have been dismissed by the same 
branch of Government that hatched the domestic spying program. But this 
stonewalling--yes, that is stonewalling--this stonewalling is only part 
of the story. Important questions about NSA's program have been 
answered with strained and tenuous justifications or claims of the dire 
need for secrecy and, as a result, Congress's access to information has 
been severely--severely, severely--curtailed, by whom? By whom? Guess 
what, by the administration; by the administration.
  There are some things we do know. We know that top officials in the 
Department of Justice who were concerned about questions of legality 
and lack of oversight of the program refused to endorse continued use 
of the NSA's wiretapping. That isn't all. We also know because of these 
concerns this secret program was suspended. Do you get that? This 
secret program was suspended temporarily due to questions about its 
  What most Americans don't know is that FBI agents complained about 
the utility of the wiretapping program. Voluminous amounts of 
information and records that were gleaned from this secret 
eavesdropping program were sent from the National Security Agency to 
the Federal Bureau of Investigation, and FBI officials repeatedly 
complained that they were being drowned by a river of useless 
information that

[[Page S1654]]

diverted their resources from pursuing important counterterrorism work. 
Such complaints raise the question of whether the domestic wiretapping 
program may have backfired by sending our top counterterrorism agencies 
on wild-goose chases, thus making our country less secure instead of 
making our country more secure.
  We know that one member of the Foreign Intelligence Surveillance 
Court, Judge James Robertson, resigned--yes, resigned--4 days after the 
New York Times first detailed the NSA's warrantless--warrantless--
domestic surveillance. We know that only the chief judge of the FISA 
Court, the secret court charged with approving requests to conduct 
domestic surveillance, had any knowledge of this clandestine 
wiretapping program. The other judges, who are sworn to strict secrecy, 
learned of the program just as many of our citizens did--through 
reports in the press. Yes, thank God for a free press.

  We know that although most of the judges of the Foreign Intelligence 
Surveillance Court were kept in the dark about the program, at least 
one of the judges was tipped off by an attorney within the Department 
of Justice that some of the information being presented to the court to 
secure warrants was improperly obtained, meaning the Government had 
apparently circumvented a court-ordered screening process to eliminate 
tainted evidence.
  We know that in a February 28 letter to Senate Judiciary Committee 
Chairman Arlen Specter, Attorney General Gonzales admitted that the 
Justice Department's legal justification for the wiretaps has ``evolved 
over time.''
  What does that mean? Does it mean that there actually was no legal 
basis for the NSA to spy on American citizens when it first began the 
surveillance? Does it mean the Department had to gin up some legal 
basis for the spying once the program became public? Does it mean the 
administration's reliance on the use-of-force resolution to justify its 
snooping was simply a ploy--just a ploy--an ``after the fact'' face-
saving device meant to give the administration cover for having 
violated the civil liberties of Americans?
  We know that earlier this week, 18 Members of the House of 
Representatives sent a letter to President Bush requesting that he 
appoint a special counsel to investigate the NSA's warrantless 
surveillance of our citizens. In their letter, the House Members noted 
that with no clear information coming from the administration, they and 
all of America have been forced to rely primarily on press reports to 
determine the scope of the NSA's activities.
  With so many questions unanswered by the administration, it is 
absolutely imperative that there be an objective investigation of this 
program and any violations of law that may have occurred.
  We are in a supercharged political year--we know that, you know that, 
everybody knows that--an election year for one-third of the Senate, 
including this Senator from West Virginia, and for the entire House of 
Representatives. And the Senate Intelligence Committee as of today has 
refused to initiate a serious investigation into this matter. But an 
investigation has to go forward. The efficacy of our laws and our 
Constitution is at stake. That is why I am proposing legislation to 
establish a nonpartisan commission to review and investigate domestic 
surveillance in America, along with serious allegations of abuse. In 
this way, we will be sure to safeguard our first and fourth amendment 
rights as enumerated in this Constitution, as well as evaluate the 
actual effectiveness of such programs in combating terrorist threats.
  James Madison wrote in his essay, ``Political Reflections,'' that 
``[t]he fetters''--the fetters, f-e-t-t-e-r-s--``[t]he fetters imposed 
on liberty at home have ever been forged out of the weapons provided 
for defense against real, pretended, or imaginary dangers from abroad.
  No one is suggesting that the threat of terrorist attacks is anything 
but a real threat, and one that must be of the Congress's utmost 
priority. But the suggestion that the American people would be safer in 
their homes if they just forego their constitutionally protected rights 
is a deliberately deceptive assertion that may forge the fetters that 
bind law-abiding citizens. Make no mistake about it: It is these ill-
conceived strictures that may ultimately destroy precious liberties.
  In fact, it is because our forefathers were fearful of re-creating 
the same tyrannous form of government from which many of them had fled, 
that the Bill of Rights--the Bill of Rights, those first 10 
amendments--the Bill of Rights was added to the Constitution to better 
secure for all time--all time--the freedom from oppression that ever 
looms from an overly powerful executive. Get that. Get that. Let me say 
that again. It was because our forefathers, thank God, were fearful of 
re-creating the same tyrannous, the same tyrannical form of government 
from which many of them had fled that the Bill of Rights was added to 
the Constitution to better secure, for all time, the freedom from 
oppression that ever looms from an overly powerful executive. And you 
better believe it. You better believe it. Hear me. Hear me now. I will 
always speak out against an all-powerful executive, under either party.
  In a climate of fear, liberties have been sacrificed time and again 
under the guise of keeping the Nation from harm. Fear. Yes, fear is a 
powerful tool for manipulation; useful for easing the American people 
out of their liberties and into submission. Fear. When the public is 
confronted with a situation, real or imagined, that inspires fear, the 
public rightfully look to their leaders--look to their leaders, Mr. 
President--for protection from foreboding consequences. The claim of 
wartime necessity always strengthens the hands of a President. Let me 
say that again. The claim of wartime necessity always strengthens a 
President, any President, Republican or Democrat. And often facts are 
sealed from the prying eyes of Congress by a purported need for 
  But Senators, and that includes this Senator from West Virginia, 
Senators have a sworn duty--a sworn duty, a sworn duty--sworn right up 
there at that desk with their hand on the Bible--the holy Bible, the 
holy Bible, the holy Bible--with their hand on the Bible to check 
executive power. We have to be on guard every moment of every day. The 
executive branch, whether it be Democratic or Republican, is always 
reaching--always reaching, always reaching--always grabbing more power, 
more power, more power, and we have to be on guard. We have a sworn 
duty to check executive power and, as long as I live, I am going to 
stand for the checking of the executive power; I don't care whether it 
is a Democrat or Republican in the White House or an Independent. It 
makes no difference. We have a sworn duty. We swear. We put our hand on 
the Bible before God and man, and we swear to check executive power at 
all times--at all times--in times of crisis or otherwise. Each of us 
here, and there are 100 here, and each of this 100, 100 Senators, we 
are each bound to defend the Constitution and each bound to defend the 
liberties that the Constitution gives to all Americans, at all times, 
in times of peace and in times of war.
  History has shown us many times that a climate of fear can take a 
hefty toll on our freedoms. That is your freedoms. That is your 
freedoms. That is your freedoms. Worse still are liberties surrendered 
in vain, resulting in little added security.
  There is no doubt that constitutional freedoms will never be 
abolished in one fell swoop--never--for the American people cherish 
their freedoms, and they would not tolerate such a loss if they could 
perceive it; if they could see it coming, if they could hear it, if 
they could feel it, if they could perceive it. But the erosion of 
freedom rarely comes as an all-out frontal assault; rather, it is 
gradual, noxious, creeping, cloaked in secrecy and glossed over by 
reassurances of greater security.
  The American people are a people born of sacrifice, and the 
sacrifices that the American people are willing to endure speak well of 
the tenacity and the strength that makes the United States of America 
what it is. Some may be tempted to accept on blind faith the 
administration's--any administration's, any administration's--promise 
of increased security, and they may see it as a duty to capitulate 
their rights for that flimsy promise. May we all pause to reflect on 
the hard-won liberties--the hard-won liberties--for which earlier 
generations fought and

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died. Remember Nathan Hale. He died. He regretted that he had but one 
life to give, to lose, one life to lose for his country. Remember 
Patrick Henry: ``Give me liberty or give me death,'' he said. John Paul 
Jones: ``We have only begun to fight.''
  So may we all pause to reflect, as we have just done, on the hard-won 
liberties for which earlier generations fought and died before we 
easily accept convincing rhetoric. Rhetoric is cheap. Talk is cheap. To 
suggest that innocent Americans surrender rights to preserve freedom is 
a false choice. It is also a slippery slope, one that is fraught with 
ever more secrecy and the certainty of egregious abuses of our Bill of 
Rights and of our laws over time.
  The commission that I propose would determine how to best protect the 
homeland, as well as the most effective ways of gathering needed 
intelligence. It will examine the procedures for the NSA's use and 
retention of intelligence obtained without warrants, and the method and 
scope of dissemination of such information to other agencies. It will 
investigate any questions raised by the Foreign Intelligence 
Surveillance Court concerning the legality of the domestic spying 
program. It will examine the obligation of the President--do you get 
that? Do you hear that, Mr. President? Republican or Democrat. It will 
examine the obligation of the President to brief Members of Congress--
not just one or two or three or four--on warrantless surveillance of 
American citizens. It will lift the fog--lift the fog--of secrecy and 
clandestine government activity misaimed at law-abiding citizens and 
perhaps, most importantly, it will shed much needed sunshine--let the 
sunshine in--much needed sunshine on any unlawful or unconstitutional 
executive--executive, executive intrusions into the lives of ordinary 

S 2362 IS


2d Session

S. 2362

To establish the National Commission on Surveillance Activities and the Rights of Americans.


March 2, 2006

Mr. BYRD introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To establish the National Commission on Surveillance Activities and the Rights of Americans.