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Senator Byrd

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March 2, 2006

Finding the Truth on Domestic Spying; Standing for the Bill of Rights

Senator Byrd on Thursday introduced legislation to establish a nonpartisan commission to review and investigate the Administration’s warrantless surveillance of American citizens and serious allegations of abuse. Senator Byrd’s remarks are below.

Before the President’s Day recess, I spoke about recent egregious examples of domestic surveillance by the Executive Branch, and 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 but one in 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 to violate existing law.”

These concerns have, of course, been dismissed by the same branch of government that hatched the domestic spying program. But 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 curtailed 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. We also know that because of these concerns, this secret program was suspended temporarily due to questions about its legality.

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. FBI officials repeatedly complained that they were being drowned by a river of useless information that 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 more secure.

We know that one member of the Foreign Intelligence Surveillance Court, Judge James Robertson, resigned four days after the New York Times first detailed the NSA’s 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.

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, an “after-the-fact” face-saving device meant to give the Administration “cover” for having violated Americans’ civil liberties?

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 imperative that there be an objective investigation of this program, and any violations of law that may have occurred. We are in a super-charged political year - - an election year for one-third of the Senate 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 must 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 our 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 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 the Congress’ utmost priority. But the suggestion that the American people will 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, it is these ill-conceived strictures that may ultimately destroy precious liberties.

In fact, it is because our forefathers were fearful of recreating the same tyrannous 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.

In a climate of fear, liberties have been sacrificed time and again under the guise of keeping the Nation from harm. Fear is a powerful tool for manipulation, useful for easing the American people out of their liberties and into submission. When the public is confronted with a situation, real or imagined, that inspires fear, they rightfully look to their leaders for protection from foreboding consequences. The claim of wartime necessity always strengthens a President. And often facts are sealed from the prying eyes of Congress by a purported need for secrecy.

But, Senators have a sworn duty to check executive power in times of crisis or otherwise. We are each bound to defend the Constitution, and the liberties it gives to all Americans, in times of peace and war. History has shown us many times that a climate of fear can take a hefty toll on our 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, for the American people cherish their freedoms, and would not tolerate such a loss if they could perceive it. But the erosion of freedom rarely comes as an all-out frontal assault, but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.

The American people are a people borne of sacrifice, and the sacrifices they are willing to endure, speak well of the tenacity and strength that makes the United States of America what it is. Therefore, some may be tempted to accept on blind faith the Administration’s promise of increased security, and see it as a duty to capitulate their rights for that promise. May we all pause to reflect on the hard-won liberties for which earlier generations fought and died before we easily accept convincing rhetoric. To suggest that innocent Americans surrender rights to preserve freedom is a false choice. It is also a slippery slope, one fraught with ever more secrecy and the certainty of egregious abuses of our Bill of Rights, and of our laws over time.

The commission I propose will determine how to best protect the homeland, as well as the most effective ways of gathering needed intelligence. It will examine the procedure 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 to brief Members of Congress on warrantless surveillance of American citizens. It will lift the fog of secrecy and clandestine government activity misaimed at law-abiding citizens. Perhaps most importantly, it will shed much-needed sunshine on any unlawful or unconstitutional executive intrusions into the lives of ordinary Americans.

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