Transcript: Senator Dick Durbin on Surveillance, Terrorism and the Constitution
On October 1, 2009, Senator Richard Durbin made remarks to the Senate Judiciary Committee, remarks that contain an explosive allegation for those who carefully listen (see minute 63 to minute 69 of this video archive). At the beginning of those remarks, Senator Durbin declined to request that his remarks be made part of the official record, and as of today there is no transcribed text of them available to the American public either through the Senate Judiciary Committee or Senator Durbin’s office. The following is my transcription of the audio of Dick Durbin’s remarks last week.
Be patient and read down through the final paragraphs to find the Senator’s allegation: a classified “real reason” for government surveillance that has nothing to do with with terrorism:
I don’t ask that my entire opening statement be made part of the record, and I won’t repeat the part of it that Senator Feingold has alluded to, other than to thank you, Senator Leahy, for your leadership. The insurance policy which you added to this critically important law, the sunset clause, brings us here today. Without that sunset clause, I’m not certain that we would be engaged in this critically important debate, so I thank you for that.
I voted for the Patriot Act as most every other member of the Senate (but our colleage from Wisconsin) did in the wake of 9-11, and then watched carefully to make certain that it was properly administered. After a short time, I joined a bipartisan group of Senators who felt that there were excesses that needed to be addressed and I sponsored a bill known as the SAFE Act which was bipartisan in nature and on this committee attracted the support of Senators Feingold, Specter and our former colleague Senator Kennedy.
I might say that our concerns were substantiated when the Inspector General of the Department of Justice concluded that the Federal Bureau of Investigation was guilty of widespread and serious misuse of a key Patriot Act authority, the National Security Letters. And so, when we faced reauthorization of the Patriot Act, as Senator Feingold has just stated, on a unanimous bipartisan vote we changed the law, a law which I believe needed to be changed. It then, that change passed the Senate unanimously. I joined Senator Feingold, Senator Kennedy on the left together with Senators Orrin Hatch, Jon Kyl and John Cornyn on the right in supporting reauthorization of every provision of the Patriot Act with important reforms from the SAFE Act.
Of course, we know what happened in conference: we lost many of those provisions. That bill had been watered down dramatically. There are still significant problems with the Patriot Act. As we dicsussed at the Patriot Act oversight hearing last week, the FBI still has the power to issue Section 215 orders — National Security Letters — for sensitive personal information on the constitutionally protected activities of innocent Americans without any connection whatsoever to suspected terrorist or spy. The FBI is still permitted to obtain John Doe roving wiretaps that do not identify the person or phone to be wiretapped. In other words, the FBI can now obtain a wiretap without telling a court who they want to wiretap or where they want to wiretap. There have been constant allusions to Grand Jury subpoenas and the like, and the ordinary course of due process under the law. The things I’ve just described would not fit in that category.
And in garden variety criminal cases, the FBI is still permitted to conduct sneak-and-peek searches of Americans’ homes without notifying the homeowner about the search until some later time. As discussed at the hearing last week, we now know that well over 90% of these sneak-and-peek operations take place in cases that do not involve terrorism in any way. Senator Feingold and I introduced the JUSTICE Act to fix these problems. Among other things, it would require the Section 215 and NSL orders for an individual’s sensitive personal records to be issued only when there is some tangential connection to terrorism. We eliminate the John Doe roving wiretaps, and require the government to ascertain the presence of the target of the roving wiretap before beginning surveillance of a particular phone or e-mail. We require notice of sneak-and-peek search within 7 days with extensions in specific compelling circumstances.
Mr. Chairman, I want to commend you for the Patriot Act reform bill that you introduced last week with our colleagues Senators Cardin and Kaufman. Your bill, which is the base bill for this markup, would add modest but important limits to the Patriot Act, while retaining its expanded powers. Yesterday afternoon we received a substitute that made significant changes to your base bill. I appreciate your efforts, and of the chairman of the Intelligence Committee, to find common ground, and we’re still reviewing the substitute.
But I’m especially concerned that the substitute removes one of the most important reforms from the Leahy bill: requirement that the government show some connection to terrorism when issuing a Section 215 order. Now, there are many reasons given for taking out this constitutional protection. But the real reason for resisting this obvious, common sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will whether ask our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our constitution.
I believe the Oath of Office each of us has taken requires that every member of this Judiciary Committee seek a classified briefing to fully understand this issue. I will be offering an amendment to restore the standard in the original Leahy bill. I look forward to working with my colleagues to produce legislation that will keep our nation safe and protect our liberties.
Thank you, Mr. Chairman.
What is this “real reason” for our government’s program of warrantless surveillance in the United States of America? How stark could these actions possibly be to, as Senator Durbin implies, fail the “test of a democratic society: transparency, accountability, and fidelity to the rule of law and our constitution”? Who is a participant in the effort to keep this real reason classified, hidden from the American people? When will the American public be allowed to know the “real reason” that the government has been spying on us? Will the secret really be kept until “future generations?”
As you may know, last week Senator Durbin’s amendment to protect the American public from this warrantless spying for non-terrorism reasons was voted down. Whatever the “real reason” is for this warrantless surveillance, unless we do something to stop it it will continue, possibly as far ahead as those “future generations” Durbin was talking about.
Don’t Just Sit There…
If you think the existence of some classified program of spying on Americans without any warrants is concerning enough to stop the bullet-train of Patriot Act reauthorization, then don’t just sit there fuming with your fists clenched…
1. Go ahead and Twitter something about it. That’s a start, but just a start.
2. Yes, by all means write a blog post about it.
3. But get the news off of cyberspace, too. Write a letter to the editor of your newspaper about this. Get the professional journalists to pay attention.
4. Then talk, really talk, to someone. Someone with power. Someone on the Senate Judiciary Committee. As J. Clifford points out, the Judiciary Committee has a large majority of Democrats, so there’s no reason for Patriot Act reauthorization to pass out of committee if the large majority of Democrats simply sticks together, stalls it, or fixes it.
Call the Senate Judiciary Committee Majority office is (202) 224-7703 and advocate for the incorporation of the JUSTICE Act (S. 1686) reforms.
If one of your senators is a Democrat on the Senate Judiciary Committee, call him or her and make the case for the reforms Durbin mentioned, the reforms in the JUSTICE Act (S. 1686).
Here are the majority Judiciary Committee names and numbers (not including Dick Durbin and Russ Feingold, who are already fully on board):
Senator Ben Cardin of Maryland. DC Office Phone #: 202-224-4524
Senator Dianne Feinstein of California. DC Office Phone #: 202-224-3841
Senator Al Franken of Minnesota. DC Office Phone #: 202-224-5641
Senator Ted Kaufman of Delaware. DC Office Phone #: 202-224-5042
Senator Amy Klobuchar of Minnesota. DC Office Phone #: 202-224-3244
Senator Herb Kohl of Wisconsin. DC Office Phone #: 202-224-5653
Senator Chuck Schumer of New York. DC Office Phone #: 202-224-6542
Senator Arlen Specter of Pennsylvania. DC Office Phone #: 202-224-4254
Senator Sheldon Whitehouse of Rhode Island. DC Office Phone #: 202-224-2921
Even if you do take action today, the actions you take may be in vain. But if you fail to take action today, I promise you that if you’re still alive when we find out the “real reason” for warrantless spying in America, you’ll be kicking yourself. So get to it. Tweet. Blog. Write that letter. Make that call.