Extension of the USA Patriot Act

By:  Joe Biden, Jr.
Date: Dec. 21, 2005
Location: Washington, DC



Mr. BIDEN. Mr. President, according to the Book of Mark, Jesus asked this question: ``For what shall it profit a man, if he shall gain the whole world, and lose his own soul?'' Mark 8:36.

I would ask the President of the United States a similar question--what good is it to expand the power of the President, if in the process you erode the fundamental freedoms guaranteed by the U.S. Constitution?

Last week, we learnd--from a New York Times report and then from President Bush himself--that since September 11, 2001, the President of the United States has authorized the National Security Agency to conduct electronic surveillance of American citizens on American soil without resort to the procedures of the Foreign Intelligence Surveillance Act.

Today we learn, contrary to assurances by administration officials, that the NSA has also conducted warrantless surveillance of purely domestic phone calls because of the technical difficulties of determining the physical location of a particular telephone.

There is still much that we do not know about this secret program and much that we do not know about the purported legal basis for it. In briefing the press on Tuesday, the Attorney General noted that people criticizing the administration are proffering opinions based on ``very limited information,'' and that such critics ``probably don't have the information about our legal analysis.''

But we do know this: for the past 4 years, the Bush administration has aggressively sought to expand the power of the President beyond recognition. In the face of this campaign, a Republican Congress has largely stood idle, reluctant to exercise its constitutional duty of oversight.

The Framers provided for a system of checks and balances in the Constitution for one simple reason: to protect against abuse of power by any branch of government in order to protect our personal freedoms.

In its zeal to expand the power of the President, the Bush administration's actions have threatened the fabric of the Constitution. These are hardly the actions of a self-described conservative who professes to want to reduce the power of the National Government.

It would be one thing if the President's actions to expand Presidential power reflected sound judgment and wisdom. But again and again, the President's overreaching in the name of security has been profoundly misguided, and has undermined support for the war against al-Qaida at home and abroad; in his decision to create special military tribunals for al-Qaida suspects held in Guantanamo Bay, a system that has yet to produce a complete trial, in his decision to authorize secret prisons abroad holding terrorist suspects--including, apparently, using facilities once operated by Soviet Intelligence agencies; in his decision to play fast and loose with time-tested standards against torture; and now in his decision to unilaterally authorize secret wiretaps of Americans without a court order.

Without more information from the Executive, it is difficult to judge the legality of the President's secret spying program. I call on the Attorney General, therefore, to provide the necessary information by promptly releasing the legal opinions governing this program--so that the Congress and the American people can assess the propriety of the President's actions. And I call on the Director of National Intelligence to promptly provide full and complete briefings to the appropriate congressional committees on the scope and operation of this program.

What is clear today is that the President of the United States decided to create a new system outside the framework of the Foreign Intelligence Surveillance Act of 1978--a framework that Congress designed to be comprehensive for electronic surveillance of foreign powers and agents of foreign powers. It is this framework on which I will focus my remarks today.

The Foreign Intelligence Surveillance Act, or FISA, was enacted in 1978 after a 3-year effort to do so.

As stated in the report of the Senate Select Committee on Intelligence, the purpose of the law was to provide regulation for ``all electronic surveillance conducted within the United States for foreign intelligence purposes'' in order to provide a check against abuses that had been revealed by the investigation of the Church Committee.

The bill was a bipartisan product; in the Senate, the original version introduced in 1977 that served as the basis of the 1978 law was sponsored by Senators across the ideological spectrum--including Birch Bayh, TED KENNEDY, Mac Mathias, James Eastland, and Strom Thurmond. The Senate ultimately adopted the bill on April 20, 1978, by a strong, bipartisan vote of 95 to 1. At the time the bill was approved in the Senate, I stated that it ``was a reaffirmation of the principle that it is possible to protect national security and at the same time the Bill of Rights.'' I was also a member of the conference committee that produced the final version of the law that was enacted with broad support in October 1978.

Here is what we did in 1978. FISA was designed to govern our collection of ``foreign intelligence.'' Typically, in the criminal context, search warrants can only be issued if the Government can demonstrate to a neutral judge that probable cause exists to believe a crime has been committed.

Under FISA, surveillance orders are issued so long as probable cause exists that someone is an ``agent of a foreign power.'' That term has been expanded in the last year to even include a lone wolf terrorist; in other words, someone not affiliated with a known terrorist organization.

Not only is the standard different under FISA, but the FISA process is done in secret, with a special court known as the Foreign Intelligence Surveillance Court. This is a court made up of Federal judges who sit on U.S. district courts. I should parenthetically note that we learned today that one of the 11 judges on this court just resigned in reaction to President Bush's unilateral domestic spying program.

When we wrote FISA, we knew there could be times when the President would have to act quickly. We knew there would be times when probable cause would have to be demonstrated to the FISA court after the surveillance began. We contemplated emergencies and wrote the law so that it could deal with them.

First, we addressed emergency situations in section 105(f) of the act, which provides that if the Attorney General reasonably determines that an emergency situation exists--and that his investigators need to target a wiretap against an agent before an application can be made to the FISA Court--he may do so for 72 hours. The original act provided for only a 24-hour emergency
period, but Congress expanded that period to 72 hours in December 2001--after the attacks on 9/11. Similarly, in enacting the Patriot Act in 2001, Congress provided other changes to FISA.

It is therefore difficult to accept the contention of the Attorney General that Congress has been unwilling to help the President meet the challenges we now face.

The law is clear on the steps the Attorney General needs to take to wiretap suspects without first obtaining a warrant: he must tell a FISA Court judge at the time of the authorization that he has taken such emergency measures, and he has to apply for post-hoc approval as soon as is practicable but not later than 72 hours after the surveillance has commenced.

We envisioned another emergency that could authorize warrantless intelligence searches: a declaration of war. Section 111 lets the Attorney General authorize electronic surveillance without a court order to acquire foreign intelligence information for up to 15 calendar days following a declaration of war by Congress. Although the ``Authorization for the Use of Military Force'' approved just after 9/11 was not, technically speaking, a declaration of war, it was the constitutional equivalent under the war clause to permit the use of force in Afghanistan, and the President would have been justified to exercise these extraordinary surveillance powers in the first 2 weeks after enactment of the joint resolution.

It is also important to note that FISA, on its own terms, set up a comprehensive and exclusive system for domestic wiretapping. Section 2511(2)(f) of Title 18, United States Code, states that FISA, when combined with wiretap authority for domestic criminal investigations, is the ``exclusive means by which ..... the interception of domestic wire, oral and electronic communications may be conducted.''

That is why George Will recently had this to say about the administration's tortured legal reasoning, ``The President's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language.''

It is also worth looking at how the FISA system has operated throughout its 27 years of existence. I would submit that it has served us well.

To those who would say it is too restrictive on our ability to gain intelligence, I would respond that the FISA Court has only rejected 5 applications out of approximately 19,000.

To those who would say that the system is too lenient, I would respond that the important piece of the equation with FISA is that it has some independent review of the executive branch--in this instance, by an independent Article III judge.

And yet, even with a history of a FISA court that approves the overwhelming majority of applications, and even with the two emergency exceptions, there are some who still argue that the administration needs additional flexibility.

For example, there are some who would say that FISA wouldn't allow us to tap the phone numbers found in the cell phone of a top al-Qaida target. With all due respect, a phone number found in a top al-Qaida operative's cell phone would seem to me to comfortably satisfy the ``probable cause'' standard outlined above. And if there were an urgent need to tap these phone numbers promptly--as I am sure there would be--no one has explained why this couldn't be done under the 72-hour emergency exception.

Rather, we have the disturbing spectacle of the Deputy Director of National Intelligence, General Hayden, complaining that ``FISA involves marshaling arguments ..... FISA involves looping paperwork around.''

Exactly right. FISA isn't a high hurdle--but it does require the executive branch to justify the extraordinary surveillance of American citizens to a judicial officer. Isn't this the rule of law that we are fighting to defend? And when FISA has needed updating over its 27-year existence, Congress has, time and time again, stepped up to the plate.

When we first enacted FISA, its scope was limited to wiretapping and other electronic eavesdropping. It has since been amended to authorize pen/trap orders and business record orders; in reaction to the Zacarias Moussaoui case, Congress created the so-called ``lone wolf'' provision; after 9/11, we extended the emergency period from 24 to 72 hours; and the list goes on and on.

If additional changes need to be made to FISA, this Senator stands ready and willing to engage in that exercise.

The alternative is the course on which the President has embarked, directly contravening a specific statute and relying on a dangerously expansive view of his Commander in Chief authority--a view that would potentially expose thousands of Americans who make a phone call abroad to surveillance of this sort. This is a course that we tried to avoid when we drafted the FISA Act in the first place. As I said in 1978 when FISA was originally passed, ``it is not necessary to compromise civil liberties in the name of national security.'' I hope the lessons from 1978 and the real story about what FISA allows can inform the debate going on today.

This debate is just beginning. Congress must stand up to this Presidential overreaching, examine what occurred, and provide corrective action. Senator Specter, the Chairman of the Judiciary Committee, has promised to hold hearings on this matter. I commend him for that.

But we will need the full cooperation of the Executive in this undertaking, and the administration can start by coming clean with the full legal reasoning for the President's domestic spying program.

There will be much more to say--and learn--in the second session of the 109th Congress. The executive branch's program must be subjected to close scrutiny by this Congress to ensure that in pursuit of terrorists or suspected terrorists, we are not sacrificing essential freedoms that we hold dear.


Help us stay free for all your Fellow Americans

Just $5 from everyone reading this would do it.