Executive Session

EXECUTIVE SESSION -- (Senate - July 27, 2006)

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Mr. BIDEN. Mr. President, I support the Treaty on Mutual Legal Assistance with Germany, a close and trusted partner with the United States on law enforcement matters.

I would like to address one issue that arose during the review of the treaty. Article 12(1) of the treaty provides that ``Each Party may at the request of the other Party, within its possibilities and under the conditions prescribed by its domestic law ..... take the necessary steps for the surveillance of telecommunications.''

After the revelation last December of the program of warrantless surveillance by the National Security Agency, NSA, the question arose whether the treaty would provide another purported legal authority for the NSA program. My view is that it does not. But the President's lawyers have proffered highly dubious theories for the program, and the Senate should not make assumptions about what the executive branch thinks about a treaty, because ultimately it is the President, not the Senate, who is charged with ``faithfully executing'' it. So I asked the executive branch its legal view about whether the treaty provides any additional legal authority for electronic surveillance--whether for the NSA program or any other program.

On April 6, 2006, I wrote the Attorney General of the United States to ask him to confirm that the treaty does not authorize warrantless surveillance. On July 3, after nearly 3 months of deliberation, the Department of Justice responded to my letter. Why it took so long to answer this simple question is unclear. But the response itself is clear: the Justice Department letter concludes that the treaty with Germany would ``in no way expand current authority under U.S. law to conduct electronic surveillance.''

I welcome the Justice Department's response. While I may disagree with the Department about the scope of the current authority under U.S. law to conduct electronic surveillance, I agree with the Department's interpretation that Article 12(1) does not expand that authority.

I urge all Senators to support this treaty.

I ask unanimous consent that both letters be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

U.S. SENATE,
COMMITTEE ON FOREIGN RELATIONS,
Washington, DC, April 6, 2006.

Hon. ALBERTO R. GONZALES,
Attorney General of the United States,
Washington, DC.

Dear Judge Gonzales:

Pending before the Senate is a Treaty on Mutual Legal Assistance in Criminal Matters with Germany (Treaty Doc. 108-27).

Article 12(1) of the Treaty provides that each party may request that the other party, ``under the conditions prescribed by its domestic law, take the necessary steps for the surveillance of telecommunications.''

I write to request that you confirm that the Treaty does not authorize warrantless surveillance, including any surveillance authorized by the program of surveillance on which you testified before the Committee on the Judiciary on February 6, 2006.

Sincerely,

Joseph R. Biden, Jr.,
Ranking Minority Member.

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington DC, July 3, 2006.

Hon. JOSEPH R. BIDEN, Jr.,
Ranking Minority Member
Committee on Foreign Relations
U.S. Senate, Washington, DC.

DEAR SENATOR BIDEN:

This responds to your letter, dated April 6, 2006, to the Attorney General inquiring whether Article 12(1) of the Treaty on Mutual Legal Assistance in Criminal Matters with Germany would authorize warrantless surveillance, including under the Terrorist Surveillance Program described by the President.

By its terms, Article 12 would provide that ``[e]ach Party may at the request of the other Party, within its possibilities and under the conditions of its domestic law[ (1)] take the necessary steps for the surveillance of telecommunications.'' (Emphasis added.). Accordingly, the Treaty would not enlarge existing surveillance authorities.

The Terrorist Surveillance Program is a narrowly focused early warning system, targeting for interception only those international communications for which there is probable cause to believe that at least one of the parties to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. It is a critical intelligence tool for protecting the United States from another catastrophic al Qaeda attack in the midst of an armed conflict. It is not a means of collecting information for foreign criminal investigations.

In sum, the MLAT with Germany would in no way expand current authority under U.S. law to conduct electronic surveillance. We hope this information is helpful. Please do not hesitate to contact this office if we may be of assistance with future matters.

Sincerely,

William E. Moschella,
Assistant Attorney General.

http://thomas.loc.gov/