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Kennedy Calls for Oversight of Warrantless Wiretapping

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Kennedy Calls for Oversight of Warrantless Wiretapping

Mr. President, the amendment (number 3862) that Senator Leahy and I have prepared is very simple, but it is absolutely critical to this bill. The amendment would require the Inspectors General of the Department of Justice, the National Security Agency, and other relevant offices to work together to review the Bush Administration's warrantless wiretapping program. The Inspectors General will analyze this program and then issue a report on what they find. Members of Congress will receive a classified version of the report. The public will receive an unclassified version.

Simply put, there is no other way to put this episode behind us. Court cases looking into the Administration's warrantless wiretapping have been stymied by concerns about standing, mootness, and the state secrets privilege. If Congress grants retroactive immunity, some of these cases will be eliminated altogether.

But either way, court cases are no substitute for an Inspector General review when it comes to finding and reporting the facts. Judicial rulings would tell us whether any laws were broken and which ones. The Inspector General review will tell us why and how this happened, and it will help us avoid a similar lapse in the future.

Let's review what we do know. At some point in 2001, the Bush Administration began a massive program of warrantless spying. In fact, new reports suggest that the Administration began its warrantless spying even before 9/11. But the Administration never told Congress what it was doing. In clear violation of the FISA law and in complete disdain for the 4th Amendment, it also never told the FISA court what it was doing.

The Bush Administration secretly ignored the law, and we still don't know how severely this program invaded the privacy of millions of innocent Americans. But what we have heard is alarming. Numerous reports indicate that the program covered not only international communications, but also Americans' purely local calls with their friends, neighbors, and loved ones. A lawsuit in California has produced evidence that at the government's request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.

Think about that. The National Security Agency of the Bush Administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.

The surveillance was so flagrantly illegal that even lawyers in the Administration opposed it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was "the biggest legal mess I had ever encountered."

Mr. Goldsmith himself acknowledged that "top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis of the operations."

Think about that as well. The President's own head of the Office of Legal Counsel states that the Administration's policy has been to "blow through" laws it doesn't like, in secret, so that its actions cannot be challenged. The Bush White House has repeatedly failed to understand that our government is a government of laws, and not of men.

Recently, the White House decided to share with the Senate certain documents on the role of the telecommunications companies, in an effort to obtain retroactive immunity for them. But the White House has shared only a small number of documents with a small number of Senators. This sort of selective disclosure is a pale shadow of the real disclosure that Americans deserve.

It was only a few months ago that the Administration decided to share these documents with the Senate Intelligence Committee. This was the first time the Administration had ever shared any documents on its warrantless surveillance with Congress. Shortly after that, the Intelligence Committee reported a bill that contained amnesty for the telecoms.

When asked why the Administration was willing to share these documents with the Intelligence Committee but not with any others, White House press secretary Dana Perino said it was because the Committee's leaders "showed a willingness" to grant amnesty to the telecoms. "Because they were willing to do that," Ms. Perino said, "we were willing to show them some of the documents that they asked to see."

The Administration later decided to share documents with the Senate Judiciary Committee, but not with the House Intelligence or Judiciary Committees, whose FISA bill it doesn't like. And it has refused to share any documents with the other Members of the House and the Senate, who are now expected to vote on this legislation.

So where are we now? We know that for over 5 years, the Bush Administration conducted a massive program of warrantless surveillance that may have violated the rights of literally millions of innocent Americans. What we do not know is how this program was started, why it was started, what it covered, how many Americans were spied on, and what happened to the information it collected. We are being kept in the dark about one of the most significant and outrageous constitutional violations by the Executive Branch in modern history.

An Inspector General review is the only way to shed light on this abuse. It is the only way to document and assess the Administration's warrantless surveillance activities over the past six years. The review will help bring clarity, closure, and accountability to this episode, and it will help us to draw lessons and move on from it. Millions of Americans have been secretly spied on for years; they at least deserve to know the reason why.

The Senate also deserves to know. Senators who vote to pass this amendment will not only be honoring their constituents' right to learn what was done to them; they will also be enabling themselves to serve their constituents better in the future. The Inspector General report will produce information that will assist us in our legislative duties. When Congress takes up FISA in the future, the results of this report will be enormously valuable in helping us enact legislation to meet the genuine national security and civil liberties needs of the nation.

It's revealing how quiet the White House has been in opposing the Inspector General review. Make no mistake, they've been clear that they don't want any kind of investigation into what they did. But their arguments against the Inspector General review have been very quiet indeed, perhaps because they know how transparently weak and self-serving their arguments are.

It's said that we should not have an Inspector General review because it might reveal classified information and help our enemies. This argument is nothing more than a scare tactic. The Inspectors' General public report will contain only unclassified material. Any classified material will go into a classified appendix.

It's also been said that an Inspector General review might fuel a partisan witch hunt. But Senator Leahy and I have drafted this amendment to be tightly limited to the warrantless wiretapping program. The Inspectors General will have a very specific mandate, and they will do their work without any political influence whatever.

Understanding what's happened to the rights of Americans over the past six years is not a partisan effort. All Members of Congress should want to learn about the activities the Administration has engaged in. The American people are concerned about what their government has been up to. They need an independent review to restore trust in the government and to feel confident that both their security and their liberty are being protected.

Finally, I've heard it said that the Inspectors General are not the appropriate entity to be conducting this review. The question is: "If not the Inspectors General, then who?" The Inspectors General are experienced and independent. They are trusted by Congress and the American people. They frequently conduct confidential investigations and have procedures in place to protect classified information. It is precisely for situations such as this that we created the Inspectors General.

It's been reported that the Justice Department recently re-opened the Office of Professional Responsibility's investigation into the warrantless surveillance program. That's a positive step, but it's not relevant to this amendment. The scope of the OPR investigation is severely limited. It deals with attorney misconduct, and it is confined to the Justice Department. By contrast, the Inspector General review will cover all of the relevant agencies, including the National Security Agency, and it will examine the use of warrantless surveillance much more fully.

Moreover, the Inspectors General are more independent than OPR, and for investigating a warrantless surveillance program authorized by the President, independence is of critical importance.

Inspectors General also have a proven track record that gives them unique credibility. For example, the Inspector General's report on National Security Letters showed widespread abuse by the FBI, and it helped Congress understand what needs to be done.

There is one reason and only one reason to oppose this amendment—to cover up the Administration's actions. A vote against the Inspector General review is a vote for silence and secrecy, for stonewalling and denial. It's a vote to erase the past.

Many of the issues we've been debating on FISA are difficult and complicated, and there is room for reasonable people to disagree. But there is no such room on this amendment. It's simple and straightforward. Its potential benefits are great, and its costs are negligible.

No matter where one stands on the issue of retroactive immunity for the phone companies, this amendment should be a no-brainer. In fact, for my colleagues who want to eliminate the court cases against the phone companies, this amendment should be even more critical, because it will at least preserve some measure of accountability. It will give the Senate critical information to fulfill its constitutional duty to protect the rights of Americans, the separation of powers, and our national security.

Many Senators who have been defending retroactive immunity have done so by emphasizing that the phone companies were just following White House orders. If you believe that argument, then you should be especially in favor of this amendment, because it places the inquiry exclusively on the White House. Here's what the amendment says:

"The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the Program or with whom there was communication about the Program."

Even though we oppose retroactive immunity, Senator Leahy and I included that provision because we want to make this amendment as uncontroversial as possible. We want to make it crystal-clear that all Senators who take their constitutional duties seriously, whether they are Democrats or Republicans, need to support this amendment.

I urge all of my colleagues to pass this amendment immediately and take a vital step toward restoring honesty and the rule of law in America's surveillance policies.


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