868 CONGRESSIONAL RECORD—SENATE, Vol. 154, Pt. 1 January 25, 2008 Mr. WHITEHOUSE. Madam Presi- This is a very controversial and dif- we are going after the bad guys, and we dent, I appreciate very much the argu- ficult subject. Frankly, nearly every- have a right to do that. And we did this ments made by the very distinguished one, with the possible exception of the program because the process that had Senator from Missouri, who is also the chairman and ranking member or been set up because of abuses with re- vice chairman of the Intelligence Com- maybe one or two others on the Intel- spect to eavesdropping and spying on mittee and possesses great experience ligence Committee, knows very little American citizens decades ago, that in this area. My point, though, is that about that which we are discussing. process was way too cumbersome, took all these arguments are for naught if Let me put up a photograph of a far too much time, and we needed to the simple courtesy of a Senator being door. This is a door in San Francisco, streamline that. That is a paraphrase. allowed to vote on his amendment is CA, a rather unremarkable photograph But there was an admission that this not honored. of a door. This is a door that is in program existed and no additional This particular amendment being AT&T’s central offices in San Fran- legal authority needed to empower the nongermane postcloture means it may cisco. A courageous employee of AT&T President to do it. very well be squeezed out by the proce- named , who had been with So that is where we are. Most of us dural devices the Republican leader has the company for 22 years, blew the don’t know the full extent of this pro- applied. So my simple question is, if I whistle on what was happening behind gram at all. In fact, my understanding may ask it through the Chair to the this door. According to Mark Klein, the is that rooms like this exist in other distinguished Senator from Missouri, had con- parts of the country with other tele- the Republican manager of this bill, nected fiber optic cables to AT&T’s cir- phone companies where splitters are can we assure Senator SPECTER and cuits through which the National Secu- used to move data to separate rooms myself that this amendment will, at rity Agency could essentially monitor and data is evaluated. the appropriate time in this legisla- all of the data crossing the Internet. This whole process comes from sev- tion, receive a vote? Here is what Mr. Klein had to say went eral decades ago when something Mr. BOND. Madam President, I am on behind this door: called the FISA Court was set up, a happy to respond as soon as we go back It appears the [National Security Agency] court to evaluate the questions about to the normal means of proceeding on is capable of conducting what amounts to when it is legal and appropriate and FISA matters, establishing a 60-vote vacuum-cleaner of all the data when the Government is able to inter- threshold, which is the standard I had crossing the Internet—whether that be peo- cept communications. The FISA Court to meet to bring the Protect America ple’s e-mail, web surfing, or any other data. was established for the very purpose of Act to the floor. I would certainly ex- The description of what was hap- trying to make the judgment about pect that his amendment would be pening at this one telephone company when it is appropriate to go after the brought up, fully discussed, and de- in this one location in San Francisco bad guys and how to protect our civil bated. This is one of the major issues was this: the intercepting of commu- liberties at the same time. we have to decide. But we have to de- nications at the AT&T Folsom Street The FISA Court was an outgrowth of cide it on a 60-vote point of order. facility, millions, perhaps billions of concern by the Congress when we dis- communications from ordinary Ameri- f covered that there was a time in this cans coming into and through the facil- country when we had the National Se- MORNING BUSINESS ity, which would normally have been curity Agency running secret projects Mr. BOND. Madam President, I ask the case for a telephone company, and called Shamrock and Minaret to gather unanimous consent that the Senate a splitter being used, according to the both international communications proceed to a period of morning business discussion by Mark Klein, splitting off and also domestic communications. with Senators permitted to speak for all of this conversation into an NSA- Project Shamrock actually started up to 10 minutes each. controlled room, to be eventually eval- during the Second World War when The PRESIDING OFFICER. Without uated with sophisticated programming, major communications companies of objection, it is so ordered. and then going back out in order to the day gave the Federal Government The Senator from North Dakota. complete the communication. So you access to all of their international traf- f have effectively a copy of everything fic. One can imagine, in the fight that is happening going through with a against the Nazis and the Japanese Im- FISA splitter to a secret room. perial Army, the desire for inter- Mr. DORGAN. Madam President, we When this became public, when a national communications to evaluate are talking about FISA we use a lot of whistleblower working for the com- things that might threaten this coun- acronyms in Washington, DC, unfortu- pany said, here is what is happening, try’s security. But the Shamrock pro- nately—the Foreign Intelligence Sur- there was an unbelievable outcry on gram then, as we know, changed over veillance Act. It is a complicated sub- both sides. Some people said: What on time. ject, and one, if people have been Earth is happening? We have secret At first the goal was to intercept watching the debate, that is also con- rooms in which the National Security international telegrams relating to for- troversial. There is a lot of passion Agency is running all this data and all eign targets. Then, soon the Govern- about this subject. We have people this information through and spying on ment began to intercept telegrams of standing up and saying: None of this American citizens? Others said: What U.S. citizens. By the time there were should be disclosed. We should not be is going on? Who on Earth would have hearings held in the Congress, the Na- talking about this. This is about the decided they should disclose this pub- tional Security Agency was inter- ability to protect our country against licly? They are going to alert the ter- cepting and analyzing about 150,000 terrorists. Of course, we have to listen rorists to what we are doing. We had messages per month. into communications and intercept both sides aghast that this was dis- Data from Project Shamrock was communications. It is the only way to closed. It is important to say that, ini- then used for another project code find out if there are terrorist acts tially, almost no one in an official ca- named Project Minaret, which we now being plotted by terrorist groups, and pacity was willing to admit to this. Fi- know spied on perceived political oppo- so on. There is that kind of thing. nally, it was admitted, yes, there was a nents of the then-administration of There are concerns on the other side program. The President said: Yes, Richard Nixon. Under this program the by people who say: Wait a second. there is a program—speaking, appar- NSA added Vietnam war protesters to There is something called a Constitu- ently, of just this program; we don’t its watch list. After there was a march tion in this country. There is a right to know of other programs that exist or on the Pentagon, the Army requested privacy, a right to expect that the Gov- may exist, but this program existed that they add antiwar protesters. The ernment will not be spying on Amer- without our knowledge. The President list included people such as folk singer ican citizens without cause. indicated this program existed because Joan Baez and civil rights leader Dr.

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But this is a lance by his own Government. issue of the Foreign Intelligence Sur- much more important process than The Congress passed its findings, veillance Act has become a political that. We need to do this, and we need when it did investigative hearings, and football by this administration. The to get it right in order to protect the Foreign Intelligence Surveillance last time we debated this, some while America. We need to do this, and we Act created the FISA Court. ago, it was quite clear that the politics need to get it right in order to protect Here is the experience with the FISA of it were viewed as wonderful politics the interests of the American people as Courts. Between 1975 and 2006, there by the other side and by the White well—and that interest of privacy and were 2,990 warrants issued by the FISA House. But this ought not be about pol- that interest of making sure that ‘‘big Court. Only five were denied. What itics at all. This ought to be about two brother government’’ is not running all that suggests is that it is not too dif- issues, both of which are critically im- of your telephone calls and all of your ficult to get approval by the FISA portant: One is protecting this coun- e-mails and all of your information Court for surveillance. But the Presi- try’s interests, yes, giving us a chance through its drift net to find out what dent and Mr. McConnell, the head of to make sure we understand what the you are saying and what you are doing our intelligence agency, have indicated terrorists are doing, how to foil ter- and who you are talking to. that there has been a problem. rorist attempts to injure this coun- That is not what I understand to be For example, Mr. McConnell cited try—it is about that; and that is very the best interests of this country or the the capture of three American soldiers important—but it is also about civil guarantees that exist in the Constitu- who were later killed in Iraq. Right liberties and protecting the rights of tion for the American people. That is after they were captured there was a the American people at the same time. why this is worth an important con- period of time when it was critically We thought we had done that by put- troversy and an important fight. It is important to be able to intercept com- ting together the FISA Court. We why it is for us to take enough time to munications in Iraq, and they were en- thought we had done that by estab- get it right. This is a big issue. We do cumbered at a time when it was crit- lishing a procedure that needed to be a lot of things on the floor of the Sen- ical to find out who held these soldiers. followed. We now understand the Presi- ate that are not so big—not big issues. That is not accurate, and the head of dent, with his lawyers, says those laws They are smaller issues in con- intelligence would have known that. I do not matter. There is in the Con- sequence. This issue is about freedom don’t know why he represented that. stitution, they say, something about and liberty and the guarantees given There is a period of time when in an the powers of the Commander in Chief, the American people in the Constitu- emergency situation, you can begin and he can do whatever he wants. That tion. It is about whether there is a surveillance without having to go to is a pretty dangerous interpretation of check on Presidential power that as- FISA. You have to go FISA after that the U.S. Constitution. sumes they have the power that ex- period of time, but you are given an op- We debate this in so much ignorance ceeds all other laws. If we do not have portunity for emergency surveillance because almost no one knows what this that kind of check and balance in this even before you get the approval or administration has done, and they are Government, then we have bigger prob- even before you go to the FISA Court. preventing us from knowing as much lems than I thought. What we have learned, however, as we should know, in most cases, by So I only wanted to say, with respect through all of this process is from a claiming protection under the State to this issue, we do not know much December 2005 report in the news- Secrets Act, and not even allowing the about it. We know at this point that papers. President Bush had authorized release of the letter that was provided behind this door, as shown on this the National Security Agency to eaves- to the telephone companies that co- chart—behind this door—exists infor- drop without warrants inside the operated that describes to them the mation split off what is called a split- which bypassed the en- legal authority for doing so. ter from the main line. Massive tire FISA Court system. It turns out I think there is much to be learned amounts of information come into it— that most of the large telephone com- here, much we need to know. I think it in this case, it was AT&T; it could have panies in this country had gone along is very important, as we reach an been other telephone companies—it is with the administration’s request for agreement on the Foreign Intelligence split off, and then all of it is evaluated that activity. Surveillance Act—and we should be- to find out: Is there something there We are told that the administration, cause it is an important circumstance that is suspicious? It is not the way Attorney General Gonzales, and others by which we need, in certain cases, America has ever worked, and not the furnished the telephone companies when we believe there is information way it should work. with some sort of letter, a certification being passed from terrorist to ter- So the more we know, I think the of sorts. We don’t know what that let- rorist, and so on—if those communica- more we will be able to better under- ter was, however, because the adminis- tions are being run through this coun- stand how to do two things at once: tration, citing the State Secrets Act, try, we need to be able to intercept and protect our country against terrorists, refuses to allow that to be disclosed. interpret what is happening—but it is and protect the civil liberties of the I think if they provide certification critically important we not allow a American people. Both are important. to a telephone company—and the tele- kind of an approach to this where there At least there is one group of people in phone company relies on that—by offi- is no oversight, there is no check. this political system of ours that be- cers of the Federal Government, in We have a government of checks and lieves the first is far more important good faith, let’s have that disclosed. balances. What the President and his than the second. They are wrong. They Why should we wonder about the ac- people seem to be saying to us is: We are both important, and both worth tions of a telephone company? If, in are not interested in checks and bal- standing up for. fact, you have an Attorney General of ances. We have the authority in the f the United States who is certifying, Constitution, as we interpret it, and let’s find out what this administration that means it exceeds every law you STIMULUS PACKAGE did. Let’s find out how they did it. can pass. We are going to do what we Mr. DORGAN. Madam President, I Let’s not have them tell us you cannot want to do. And if you don’t like it, want to talk for a few moments about even see what was provided to a tele- tough luck. And if you don’t like it, by the so-called stimulus package we are phone company in terms of certifi- the way, what we will say to the Amer- assembling to help our economy. What

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