Dear Mr. <Apnu>:

Thank you for your message regarding the surveillance of American citizens by the National Security Agency (NSA). I appreciate hearing from you on this important issue.

Protecting both the security and the freedom of the American people is among my greatest concerns. I share an obligation with my fellow Senators to ensure that the federal government protects and defends the people of the United States while preserving the civil liberties that have helped to make the United States the greatest and most enduring democracy in the world.

President Bush has stated that he authorized the NSA to conduct warrantless wiretapping of communications made by American citizens living within the United States. Current federal law provides that electronic surveillance and interception of domestic oral, wire and electronic communications may be conducted only according to the procedures set forth in the federal criminal wiretap statute and the Foreign Intelligence Surveillance Act (FISA). Under FISA, the government must seek a warrant from a special court in order to conduct electronic surveillance of communications between American citizens and persons outside of the country. FISA requires that these court proceedings be conducted as expeditiously as possible, and FISA permits the government in emergency situations to begin conducting surveillance immediately and obtain a warrant up to 72 hours later.

The NSA did not obtain approval from the FISA court or from any other court before initiating its domestic wiretapping program. For most of its existence, the program has operated without meaningful oversight. Few members of Congress were briefed about the wiretap program until its existence was revealed by the media, and those members were sworn to secrecy. The majority of the members of Congress still have not been fully briefed about the program's operational details. The Administration has also shut down its own internal Department of Justice investigation into the NSA's program. In essence, the Administration has attempted to operate this program without supervision or oversight from any source. This undermines our Constitutional system of checks and balances and raises serious concerns about the possibility of excessive intrusion and an inability to correct abuses in the program.

In addition to the disclosure of the NSA's domestic wiretapping program, it has been alleged that the NSA has undertaken a massive effort to gather the telephone records of tens of millions of innocent Americans into a searchable database. Again, this program has been conducted without court approval or Congressional oversight.

When the President and the Administration order actions such as the surveillance of American citizens, these actions must be conducted in a manner consistent with the rule of law and the Constitution's commitment to civil liberties. I am deeply concerned about the manner in which the Executive Branch has initiated and conducted these NSA surveillance programs.

I have taken numerous steps to address these concerns. I have called for Attorney General Gonzales to appear before the Senate Judiciary Committee under oath so that he can explain the Administration's justifications for circumventing the FISA process in conducting warrantless wiretaps. I have also called for executives from telecommunications companies to testify before the Judiciary Committee about their role in any surveillance of innocent Americans. Such hearings could be conducted in closed session if necessary for security reasons.

I also voted against the confirmation of former Deputy Director of National Intelligence General Michael Hayden to the position of Director of the Central Intelligence Agency. I believe it is critical that our intelligence agencies operate within the bounds of our Constitution and our laws, and I am not alone in being concerned about General Hayden's track record of presiding over the NSA's warrantless wiretapping program and the creation of the massive phone record database.

Several bills have recently been introduced in the Senate that would provide legal authorization for the NSA's surveillance of American citizens. I believe it is premature for the Senate to legislate on the legalities of these programs when most Senators do not even know the programs' operational details.

I will continue to work to ensure that any government surveillance of American citizens is conducted in a manner consistent with our civil liberties and the rule of law as well as our security needs. Thank you again for sharing your views on this issue with me.

Sincerely,

Richard J. Durbin
United States Senator

RJD/ds