Remarks by U.S. Senator Robert C. Byrd
February 15, 2006
Seeking the Truth on Spying on Americans at Home
Senator Byrd on Wednesday called for a thorough investigation into possible violations of intelligence law and the Constitution by the Bush Administration. Senator Byrd's remarks are below.
In June of 2004, 10 peace activists outside of Haliburton, Inc., in Houston gathered to protest the company's war profiteering. They wore paper hats and were handing out peanut-butter and jelly sandwiches, calling attention to Haliburton's reported overcharging on a food contract for American troops in Iraq.
Unbeknownst to them, they were being watched. U.S. Army personnel at the top-secret Counterintelligence Field Activity or CIFA, saw the protest as a potential threat to national security.
CIFA was created 3 years ago by the Defense Department. Its official role is "force-protection", that is, tracking threats and terrorist plots against military installations and personnel inside the United States. In 2003, then Deputy Defense Secretary Paul Wolfowitz authorized a fact-gathering operation code-named TALON, which stands for Threat and Local Observation Notice, that would collect "raw information" about "suspicious incidents" and feed it to CIFA.
In the case of the peanut butter demonstration, the Army wrote a report on the activity and stored it in its files. Newsweek magazine has reported that some TALON reports may have contained information on U.S. citizens that has been retained in Pentagon files. A senior Pentagon official has admitted that the names of these U.S. citizens could number in the thousands.
Is this where we are heading in the land of the free? Are secret government programs that spy on American citizens proliferating? The question is not, "Is Big Brother watching?" It is "How many Big Brothers have we?"
Ever since the New York Times revealed that President George W. Bush has personally authorized surveillance of American citizens without obtaining a warrant, I have become increasingly concerned about dangers to the people's liberty. I believe that both current law and the Constitution may have been violated - - not once, but many times - - and in ways that the Congress and the people may never know because of this White House and its penchant for control and secrecy.
We cannot continue to claim that we are a nation of laws and not of men if our laws and, indeed, even the Constitution of the United States itself, may be summarily breached because of some determination of expediency or because the President says "trust me."
The Fourth Amendment reads clearly, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Congress has already granted the Executive Branch rather extraordinary authority with changes in the Foreign Intelligence Surveillance Act that allow the government 72 hours after surveillance has begun to apply for a warrant. If this surveillance program is what the President says it is, a program to eavesdrop upon known terrorists in other countries who are conversing with Americans, then there should be no difficulty in obtaining a warrant within 72 hours. One might be tempted to suspect that the real reason that the President authorized warrantless surveillance is because there is no need to have to bother with the inconveniences of probable cause. Without probable cause as a condition of spying on American citizens, the National Security Agency could and can, under this President's direction, spy on anyone and for any reason. We have only the President's word, his "trust me", to protect the privacy of the law-abiding citizens of this country. And one must be especially wary of an Administration that seems to feel that what it judges to be a good end, always justifies any means. It is, in fact, not only illegal under our system, but morally reprehensible to spy on citizens without probable cause of wrongdoing. When such practices are sanctioned by our own President, what is the message we are sending to other countries which the United States is trying to convince to adopt our system? It must be painfully obvious to them that a President, who can spy at will on any citizen, is very unlike the model of democracy that the Administration is trying to sell abroad.
In the name of "fighting terror" are we to sacrifice every freedom to a President's demand? How far are we to go? Can a President order warrantless house-by-house searches of a neighborhood, where he suspects a terrorist may be hiding? Can he impose new restrictions on what can be printed, broadcast, or even uttered privately, because of some perceived threat to national security? Laughable thoughts? I think not. For this Administration has so traumatized the people of this nation -- and many in the Congress -- that some will swallow whole whatever rubbish that is spewed from this White House, as long as it is in some tenuous way connected to the so-called war on terror.
And the phrase, "war on terror," while catchy, certainly is a misnomer. Terror is a tactic used by all manner of violent organizations to achieve their goals. It has been around since time began, and will likely be with us on the last day of planet Earth. We were attacked by Bin Laden and by his organization Al Qaeda. If anything, what we are engaged in should, more properly, be called, a war on the Al Qaeda network. But, that is too limiting for an Administration that loves power as much as this one. A war on the Al Qaeda network might conceivably be over some day. A war on the Al Qaeda network might have achievable, measurable objectives, and it would be less able to be used as a rationale for almost any government action. It would be harder to periodically traumatize the U.S. public, thereby justifying a reason for stamping secret on far too many government programs and activities. Why hasn't Congress been thoroughly briefed on the President's secret eavesdropping program, or on other secret domestic monitoring programs run by the Pentagon or other government entities? Is it because keeping official secrets prevents annoying Congressional oversight? Revealing this program in its entirety to too many members of Congress could certainly have unmasked its probable illegality at a much earlier date, and may have allowed members of Congress to pry information out of the White House that the Senate Judiciary Committee could not pry out of Attorney General Gonzales, who seems genuinely confused about whom he works for -- the public or his old boss, the President.
Attorney General Gonzales refused to divulge whether or not purely domestic communications have also been caught up in this warrantless surveillance, and he refused to assure the Senate Judiciary Committee and the American public that the Administration has not deliberately tapped Americans' telephone calls and computers or searched their homes without warrants. Nor would he reveal whether even a single arrest has resulted from the program.
And what about the First Amendment? What about the chilling effect that warrantless eavesdropping is already having on those law-abiding American citizens who may not support the war in Iraq, or who may simply communicate with friends or relatives overseas? Eventually, the feeling that no conversation is private will cause perfectly innocent people to think carefully before they candidly express opinions or even say something in jest.
Already we have heard suggestions that Freedom of the Press should be subject to new restrictions. And who among us can feel comfortable knowing that the National Security Agency has been operating with an expansive view of its role since 2001, forwarding wholesale information from foreign intelligence communication intercepts involving American citizens, including the names of individuals to the FBI, in a departure from past practices, and tapping some of the country's main telecommunications arteries in order to trace and analyze information.
The Administration could have come to Congress to address any too cumbersome aspects of the FISA law in the revised Patriot Act which the Administration proposed, but they did not, probably because they wished the completely unfettered power to do whatever they pleased, the laws and the Constitution be damned.
I plead with the American public to tune-in to what is happening in this country. Please forget the political party with which you may usually be associated, and, instead, think about the right of due process, the presumption of innocence, and the right to a private life. Forget the now tired political spin that, if one does not support warrantless spying, then one may be less than patriotic.
Focus on what's happening to truth in this country and then read President Bush's statement to a Buffalo, New York audience on April 24, 2004:
"Any time you hear the United States government talking about wiretap, it requires - - a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
That statement is false and the President knew it was false when he made it because he had authorized the government to wiretap without a court order shortly after the 2001 attacks.
This President, in my judgement, may have broken the law, and most certainly has violated the spirit of the Constitution and the public trust.
Yet, I hear strange comments coming from some members of Congress to the effect that well, if the President has broken the law, let's just change the law. That is tantamount to saying that whatever the President does is legal, and the last time we heard that claim was from the White House of Richard M. Nixon. Congress must rise to the occasion here and demand answers to the serious questions surrounding warrantless spying. And Congress must stop being spooked by false charges that unless it goes along in blind obedience with every outrageous violation of the separation of powers, it is soft on terrorism. Perhaps we can take courage from The American Bar Association which on Monday, February 13, denounced President Bush's warrantless surveillance, and expressed the view that he had exceeded his Constitutional powers.
There is a need for a thorough investigation of all of our domestic spying programs. We have to know what is being done, by whom, and to whom. We need to know if the Federal Intelligence Surveillance Act has been breached, and if the Constitutional rights of thousands of Americans have been violated without cause. The question is, can the Congress, under control of the President's political party conduct the type of thorough, far-ranging investigation which is necessary? It is absolutely essential that Congress try, because it is vital to at least attempt the proper restoration of the checks and balances. Unfortunately, in a congressional election year, the effort will most likely be seriously hampered by politics. In fact, today's Washington Post reports that an all-out White House lobbying campaign has dramatically slowed the Congressional probe of NSA spying and may kill it.
I want to know how many Americans have been spied upon. I want to know how it is determined which individuals are monitored and who makes such determinations. I want to know if the telecommunications industry is involved in a massive screening of the domestic telephone calls of ordinary Americans. I want to know if the United States Post Office is involved. I want to know, and the American people deserve to know, if the law has been broken and the Constitution has been breached.
Historian Lord Acton once observed that, "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."
The culture of secrecy which has deepened since the attacks on September 11 has presented this nation with an awful dilemma. In order to protect this open society are we to believe that measures must be taken that in insidious and unconstitutional ways close it down? I believe that the answer must be an emphatic "no."
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