Floor Statement of Senator Joe Biden on National Security Agency Wiretapping

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On NSA Wiretapping
by Joe Biden/Floor Statements
Delivered on 16 March 2006.

Mr. President, I rise today to offer a few brief comments on the National Security Agency eavesdropping program.

The truth is that we don't know what is going on under this program. And we have an obligation to find out and a committee set up to do just that. Senator Rockefeller has been correct from the beginning to call for a full and thorough Intelligence Committee investigation. I couldn't agree more with my colleague from West Virginia and was deeply disappointed his March 7 motion calling for a full committee investigation failed along party lines.

I have been arguing consistently since we found out about this program in December that we need to do here what we did when we originally crafted the Foreign Intelligence Surveillance Act, FISA.

For several years preceding the enactment of FISA in 1978, the Judiciary and Intelligence Committees conducted extensive public and private hearings and staff investigations that built the record for the act.

FISA was a bipartisan product; in the Senate, the original version 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.

I was proud of what we were able to accomplish then and sincerely hoped that we could undertake the same serious, thoughtful, bipartisan process here. And the first step is to undertake a full Intelligence Committee investigation, just as my colleague Vice Chairman Rockefeller has been pushing for months.

It is essential that such a carefully considered record be developed so we don't act precipitously either to legislate or not to legislate. Issues concerning the core privacy rights of U.S. citizens, whether we are fighting an effective war on terrorism, and the fundamental structure of our separation of powers are directly involved here and deserve a full and thorough examination.

At present, our knowledge of the National Security Agency program is severely limited. We need to know much more, for example: No. 1, the nature and scope of the program or programs; No. 2, the extent of the impact on U.S. citizens; No. 3, why the administration did not seek amendments to FISA; No. 4, why some high Justice Department officials were hesitant to approve the program; No. 5, the actual value of the information gathered; No. 6, how decisions are made on whom to target; and No. 7, any procedures followed to protect civil liberties. Senator Rockefeller understands that we need to know the answers to our questions.

But politics and protecting the President seem to be the order of the day. I am told one of the committee Republicans went so far as to say that some of the committee Democrats "believe the gravest threat we face is not Osama bin Laden and al-Qaeda, but rather the president of the United States." That is totally uncalled for; it is ridiculous.

I understand a special subcommittee has now been created to conduct at least some oversight over the NSA surveillance program going forward. But this just isn't enough--the whole committee should be undertaking an investigation, and it should be a full and thorough investigation, just as Senator Rockefeller has called for.

It also is a grave mistake to put forward legislation authorizing the NSA program outside of the FISA system and in advance of actually knowing anything about the program, as some of my colleagues are proposing. Talk about putting the cart before the horse.

So I would hope we learn from history and listen to Senator Rockefeller. Let's go back to what worked so well in the past when we all worked together to craft FISA. Let's first hold a full and thorough investigation in the Intelligence Committee.

Then, and only when we know what is going on, should we make a judgment about whether FISA needs to be updated. If additional changes need to be made, this Senator stands ready and willing to engage in that exercise.