Last week, the Judiciary Committee held an important hearing.  That hearing should be the beginning of the process of congressional oversight into what has been called “the President’s program.”  This is a domestic spying program into emails and telephone calls of Americans without a judge’s approval, apparently conducted by the National Security Agency.  Having participated in the hearing and reviewed the transcript of the Attorney General’s testimony, I understand the fear that this Administration is engaged in an elaborate cover-up of illegality.  I urge them to come clean with us and the American people. 

Perhaps their recent change of course and briefings with the full Intelligence Committees of the Senate and House will be a start.  We need the whole truth not self-serving rationalizations.  Since our hearing the Bush Administration has had to adjust its course.  That is good.   They have had to acknowledge that they cannot simply ignore Congress and keep us in the dark about this illegal spying program.  The classified briefings of the Intelligence Committees are a first step but cannot be used to cover up the facts through secrecy and arbitrary limitations.  That is unacceptable.  This domestic spying program has raised serious concern, not only among Democrats and Republicans here in Congress, but also among the federal judges providing oversight over terrorist surveillance and even high-ranking Justice Department officials.          

I commend Chairman Specter for beginning this investigation.  He and I have a long history of conducting vigorous bipartisan oversight investigations.  If the Senate is to serve its constitutional role as a real check on the Executive, thoroughgoing oversight is essential.   Today, Chairman Specter has announced a second Judiciary Committee hearing will be held on February 28.  We expect by then to have received answers to the written questions that have already been sent to the Attorney General.

The question facing us is not whether the Government should have all the tools it needs to protect the American people.  Of course it should.  The terrorist threat to America’s security remains very real, and it is vital that we be armed with the tools needed to protect Americans’ security.  That is why I co-authored the PATRIOT Act five years ago.  That is why we have amended the Foreign Intelligence Surveillance Act five times since 9/11 to provide more flexibility. 

And that is why within days of the despicable attacks we passed the Authorization for the Use of Military Force on September 14, 2001, to send the United States Armed Forces into Afghanistan to get those who planned and carried out the vicious attacks on September 11.

We all agree that we should be wiretapping al Qaeda terrorists.  Congress has given the President authority to wiretap legally, with checks to guard against abuses when Americans’ conversations and email are being monitored.  But instead, the President has chosen to proceed outside the law, without those safeguards.  He has done so in a way that is illegal and illogical.  It remains confusing that the Attorney General testified last week that the Bush Administration has limited “the President’s program” of illegal wiretaps to calls with an international component. 

The Administration’s rationale is not limited to calls and emails with an international component or to known al Qaeda operatives. 

It sounded at our hearing as if what the Bush Attorney General and former White House counsel was saying is that this particular “program” is limited because they were afraid of  public outrage.  The Attorney General said as much to Senator Kohl and confirmed to Senator Biden that the Bush Administration does not suggest that the President’s powers are limited by the Constitution to foreign calls.  Their descriptions of the President’s program seem to have more to do with public relations than anything else.  It was even branded with a new name in the last few days after have been known for years as simply “the President’s program.” 

Senator Feinstein was right to observe after the Attorney General dodged and weaved and would not directly answer her questions: “I can only believe--and this is my honest view--that this program is much bigger and much broader than you want anyone to know.”  The Attorney General’s strenuous efforts to limit the hearing to “those facts the President has publicly confirmed” and “the program that I am here testifying about today” suggest that all of us must be skeptical about the secret games the Attorney General was playing through controlling the definition of “the program” to include only what he understood to exist at the beginning of last week.  Senator Feinstein was not fooled.  None of us should be.  Such limiting definitions are what the Bush Administration used to redefine “torture” in order to say that we do not engage in “torture” as they redefined it.  These are the word games of cover-up and deception.

It is not al Qaeda that is surprised that our Government eavesdrops on its telephone calls and emails.  Al Qaeda knows that we eavesdrop and wiretap.  It is the American people who are surprised and deceived by the President’s program of secret surveillance on them without a judge’s approval for the last 5 years-- especially, after the Attorney General, the Justice Department, the head of the NSA and the President have all reassured the American people over and over that their rights are being respected—when they are not.

I wish the President had effectively utilized the authority Congress did grant in the Authorization for the Use of Military Force in September 2001 to get Osama bin Laden and those responsible for the terrible attacks on September 11.  That resolution was what it said it was, authorization to send troops to Afghanistan to get those responsible for 9/11.  President Bush should have gotten Osama bin Laden when Congress authorized him to use our military might against al Qaeda in 2001 in Afghanistan.  Instead of pursuing him to the end, he pulled our best forces out of the fight and diverted them to preparing for his invasion of Iraq. 

Last week the Attorney General left key questions unanswered and left impressions that are chilling.  Under his approach, there is no limit to the power the President could claim for so long as we face a threat of terrorism.  That is a real threat, which we have long faced and will continue to face for years if not decades to come.  The Attorney General’s testimony only hinted at the full dimensions of the Bush Administration’s illegality.  He would not reassure us that Americans’ domestic calls, emails, or first class mail have not been illegally spied upon.  

He sought to choose his words carefully to say that he was only willing to speak about the President’s “program” as it existed that day.  That means we do not yet know the full dimensions of the program as it has evolved over time from 2001 to today.  That means we do not know what other illegal activities the Bush Administration is still endeavoring to hide from us. 

Along with other Senators I asked about the lack of any limit to the legal rationale the Bush Administration has embraced.  Their rationalization for their actions is rationalization for any action.  Under their view of the President’s power, he can order houses and businesses searched without a warrant.  Americans can be detained indefinitely.  Detainees can be tortured.  Property could be seized.  Their rational is a prescription for lawlessness and the opposite of the rule of law. 

Regrettably, the Attorney General’s testimony last week left much to be desired.  He did not provide convincing answers to basic questions, relevant information or the relevant underlying documents.  Facts are a dangerous thing in a cover-up.  They are seeking to rewrite history and the law and control the facts that Congress can know. 

The Bush Administration’s refusal to provide the contemporaneous evidence of what the Congress and the Bush Administration were indicating to each other regarding what the Authorization for the Use of Military Force was intended to mean, speaks volumes.  Does anyone think that if they had any evidence in support of their after-the-fact rationalization they would hesitate to provide it, to trumpet it from the highest media mountain? Of course not.  

Their failure to provide the information we asked for is not based on any claim of privilege, nor could it be.  It is just a deafening, damning silence.

So what is so secret about precisely when they came to this legal view, this rationalization of their conduct?  Could it have come after the illegal conduct had been initiated?  Could it have come after the President sought to immunize and sanitize the illegal conduct?  Could it have come months or years later than the impression Attorney General Gonzales is attempting to create? 

Is that why the Bush Administration is also refusing to provide to us the formal legal opinions of our Government, the binding opinions of the Office of Legal Counsel from 2001 and 2004 that we have also requested? 

Would review of those opinions show that the after-the-fact legal rationalizations changed over time and in 2001 were not those that the Attorney General has repackaged for public consumption in their current public relations campaign? 

Now that we know of the existence of the years-old secret domestic spying program that has included the warrantless wiretapping of thousands of Americans, the Bush Administration says that we should just trust them.  That is a blind trust, this Administration has not earned.  We have seen this Administration’s infamous and short-lived “Total Information Awareness” program and know how disastrous the FBI’s Carnivore and Trilogy computer programs have been.  

I have read recent reports of a secret Pentagon database containing information on a wide cross-section of ordinary Americans, including Quakers meeting in Florida and Vermont, and have gotten no satisfactory explanation of the Defense Department’s Counterintelligence Field Activities that spy on law-abiding Americans.  I read about a secret Homeland Security database and datamining activities, as well.   Today we ready about another database with the names of more than 325,000 terrorists but are do not know how many are Americans, how many are listed incorrectly or how the mistakes will be corrected.

There are new and disturbing reports that the Defense Department and the FBI have been monitoring U.S. advocacy groups working on behalf of civil rights or against the continuing occupation of Iraq. 

This is all too reminiscent of the dark days when a Republican President compiled enemies lists and eavesdropped on political opponents and broke into doctors offices and used the vast power of the executive branch to violate the constitutional rights of Americans.  That President resigned in disgrace after articles of impeachment were reported in the House of Representatives. 

I was first elected to the Senate in the aftermath of Watergate and the White House “plumbers” and the illegality that led to the impeachment inquiry of President Nixon.  The Foreign Intelligence Surveillance Act was passed in 1978 as part of the reform and reaction to those abuses. It was enacted after decades of abuses by the Executive, including the wiretapping of Dr. Martin Luther King Jr. and other political opponents of earlier government officials. 

It was enacted after the White House “horrors” of the Nixon years, during which another President asserted that whatever he did was legal because he was the President. 

The law has been extensively updated in accordance with the Bush Administration’s requests in the aftermath of 9/11 and has been modified further in the last four years.  It is the governing law.  The rule of law and freedoms we enjoy as Americans are principles upon which this Nation was founded and what we are defending and fighting for abroad.  This type of covert spying on American citizens and targeted groups on American soil betrays those principles and it is unacceptable.

What happens to the rule of law if those in power abuse it and only adhere to it selectively?  What happens to our liberties when the government decides it would rather not follow the rules designed to protect our rights?  What happens is that the terrorists are allowed to achieve a victory they could never achieve on the battlefield.  We must not be intimidated into abandoning our fundamental values and treasured freedoms.   We cannot let them scare us into giving up what defines us as Americans.   

There can be no accountability unless the Republican Congress begins to do its job and joins with us to demand real oversight and real answers.   Senators take an oath of office, too.  We swear to support and defend the Constitution of the United States, to bear true faith and allegiance to it, and to faithfully discharge our duties so help us God.  Let each Senator fulfill that pledge and the Senate can resume its intended place in our democracy. 

Let us protect our national security and the national heritage of liberty for which so many have given so much.

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