Diary: Kudos To Russ Feingold

On the President's Warrantless Wiretapping Program
By Senator Russ Feingold
t r u t h o u t | Statement

Tuesday 07 February 2006

As prepared for delivery from the Senate floor.

Mr. President, last week the President of the United States gave his State
of the Union address, where he spoke of America's leadership in the world, and
called on all of us to "lead this world toward freedom." Again and again, he
invoked the principle of freedom, and how it can transform nations, and empower
people around the world.

But, almost in the same breath, the President openly acknowledged that he
has ordered the government to spy on Americans, on American soil, without the
warrants required by law.

The President issued a call to spread freedom throughout the world, and then
he admitted that he has deprived Americans of one of their most basic freedoms
under the Fourth Amendment - to be free from unjustified government intrusion.

The President was blunt. He said that he had authorized the NSA's domestic
spying program, and he made a number of misleading arguments to defend himself.
His words got rousing applause from Republicans, and I think even some
Democrats.

The President was blunt, so I will be blunt: This program is breaking the
law, and this President is breaking the law. Not only that, he is misleading the
American people in his efforts to justify this program.

How is that worthy of applause? Since when do we celebrate our commander in
chief for violating our most basic freedoms, and misleading the American people
in the process? When did we start to stand up and cheer for breaking the law? In
that moment at the State of the Union, I felt ashamed.

Congress has lost its way if we don't hold this President accountable for
his actions.

The President suggests that anyone who criticizes his illegal wiretapping
program doesn't understand the threat we face. But we do. Every single one of us
is committed to stopping the terrorists who threaten us and our families.

Defeating the terrorists should be our top national priority, and we all
agree that we need to wiretap them to do it. In fact, it would be irresponsible
not to wiretap terrorists. But we have yet to see any reason why we have to
trample the laws of the United States to do it. The President's decision that he
can break the law says far more about his attitude toward the rule of law than
it does about the laws themselves.

This goes way beyond party, and way beyond politics. What the President has
done here is to break faith with the American people. In the State of the Union,
he also said that "we must always be clear in our principles" to get support
from friends and allies that we need to fight terrorism. So let's be clear about
a basic American principle: When someone breaks the law, when someone misleads
the public in an attempt to justify his actions, he needs to be held
accountable. The President of the United States has broken the law. The
President of the United States is trying to mislead the American people. And he
needs to be held accountable.

Unfortunately, the President refuses to provide any details about this
domestic spying program. Not even the full Intelligence committees know the
details, and they were specifically set up to review classified information and
oversee the intelligence activities of our government. Instead, the President
says - "Trust me."

This is not the first time we've heard that. In the lead-up to the Iraq war,
the Administration went on an offensive to get the American public, the
Congress, and the international community to believe its theory that Saddam
Hussein was developing weapons of mass destruction, and even that he had ties to
Al Qaeda. The President painted a dire - and inaccurate - picture of Saddam
Hussein's capability and intent, and we invaded Iraq on that basis. To make
matters worse, the Administration misled the country about what it would take to
stabilize and reconstruct Iraq after the conflict. We were led to believe that
this was going to be a short endeavor, and that our troops would be home soon.

We all recall the President's "Mission Accomplished" banner on the aircraft
carrier on May 1, 2003. In fact, the mission was not even close to being
complete. More than 2100 total deaths have occurred after the President declared
an end to major combat operations in May of 2003, and over 16,600 American
troops have been wounded in Iraq. The President misled the American people and
grossly miscalculated the true challenge of stabilizing and rebuilding Iraq.

In December, we found out that the President has authorized wiretaps of
Americans without the court orders required by law. He says he is only
wiretapping people with links to terrorists, but how do we know? We don't. The
President is unwilling to let a neutral judge make sure that is the case. He
will not submit this program to an independent branch of government to make sure
he's not violating the rights of law-abiding Americans.

So I don't want to hear again that this Administration has shown it can be
trusted. It hasn't. And that is exactly why the law requires a judge to review
these wiretaps.

It is up to Congress to hold the President to account. We held a hearing on
the domestic spying program in the Judiciary Committee yesterday, where Attorney
General Gonzales was a witness. We expect there will be other hearings. That is
a start, but it will take more than just hearings to get the job done.

We know that in part because the President's Attorney General has already
shown a willingness to mislead the Congress.

At the hearing yesterday, I reminded the Attorney General about his
testimony during his confirmation hearings in January 2005, when I asked him
whether the President had the power to authorize warrantless wiretaps in
violation of the criminal law. We didn't know it then, but the President had
authorized the NSA program three years before, when the Attorney General was
White House Counsel. At his confirmation hearing, the Attorney General first
tried to dismiss my question as "hypothetical." He then testified that "it's not
the policy or the agenda of this President to authorize actions that would be in
contravention of our criminal statutes."

Well, Mr. President, wiretapping American citizens on American soil without
the required warrant is in direct contravention of our criminal statutes. The
Attorney General knew that, and he knew about the NSA program when he sought the
Senate's approval for his nomination to be Attorney General. He wanted the
Senate and the American people to think that the President had not acted on the
extreme legal theory that the President has the power as Commander in Chief to
disobey the criminal laws of this country. But he had. The Attorney General had
some explaining to do, and he didn't do it yesterday. Instead he parsed words,
arguing that what he said was truthful because he didn't believe that the
President's actions violated the law.

But he knew what I was asking, and he knew he was misleading the Committee
in his response. If he had been straightforward, he would have told the
committee that in his opinion, the President has the authority to authorize
warrantless wiretaps. My question wasn't about whether such illegal wiretapping
was going on - like almost everyone in Congress, I didn't know about the program
then. It was a question about how the nominee to be Attorney General viewed the
law. This nominee wanted to be confirmed, and so he let a misleading statement
about one of the central issues of his confirmation - his view of executive
power - stay on the record until the New York Times revealed the program.

The rest of the Attorney General's performance at yesterday's hearing
certainly did not give me any comfort, either. He continued to push the
Administration's weak legal arguments, continued to insinuate that anyone who
questions this program doesn't want to fight terrorism, and refused to answer
basic questions about what powers this Administration is claiming. We still need
a lot of answers from this Administration.

But let's put aside the Attorney General for now. The burden is not just on
him to come clean - the President has some explaining to do. The President's
defense of his actions is deeply cynical, deeply misleading, and deeply
troubling.

To find out that the President of the United States has violated the basic
rights of the American people is chilling. And then to see him publicly embrace
his actions - and to see so many Members of Congress cheer him on - is
appalling.

The President has broken the law, and he has made it clear that he will
continue to do so. But the President is not a king. And the Congress is not a
king's court. Our job is not to stand up and cheer when the President breaks the
law. Our job is to stand up and demand accountability, to stand up and check the
power of an out-of-control executive branch.

That is one of the reasons that the framers put us here - to ensure balance
between the branches of government, not to act as a professional cheering
section.

We need answers. Because no one, not the President, not the Attorney
General, and not any of their defenders in this body, has been able to explain
why it is necessary to break the law to defend against terrorism. And I think
that's because they can't explain it.

Instead, this administration reacts to anyone who questions this illegal
program by saying that those of us who demand the truth and stand up for our
rights and freedoms have a pre-9/11 view of the world.

In fact, the President has a pre-1776 view of the world.

Our Founders lived in dangerous times, and they risked everything for
freedom. Patrick Henry said, "Give me liberty or give me death." The President's
pre-1776 mentality is hurting America. It is fracturing the foundation on which
our country has stood for 230 years. The President can't just bypass two
branches of government, and obey only those laws he wants to obey. Deciding
unilaterally which of our freedoms still apply in the fight against terrorism is
unacceptable and needs to be stopped immediately.

Let's examine for a moment some of the President's attempts to defend his
actions. His arguments have changed over time, of course. They have to - none of
them hold up under even casual scrutiny, so he can't rely on one single
explanation. As each argument crumbles beneath him, he moves on to a new one,
until that, too, is debunked, and on and on he goes.

In the State of the Union, the President referred to Presidents in American
history who cited executive authority to order warrantless surveillance. But of
course those past presidents - like Wilson and Roosevelt - were acting before
the Supreme Court decided in 1967 that our communications are protected by the
Fourth Amendment, and before Congress decided in 1978 that the executive branch
can no longer unilaterally decide which Americans to wiretap. The Attorney
General yesterday was unable to give me one example of a President who, since
1978 when FISA was passed, has authorized warrantless wiretaps outside of FISA.

So that argument is baseless, and it's deeply troubling that the President
of the United States would so obviously mislead the Congress and American
public. That hardly honors the founders' idea that the President should address
the Congress on the state of our union.

The Foreign Intelligence Surveillance Act was passed in 1978 to create a
secret court, made up of judges who develop national security expertise, to
issue warrants for surveillance of terrorists and spies. These are the judges
from whom the Bush Administration has obtained thousands of warrants since 9/11.
The Administration has almost never had a warrant request rejected by those
judges. They have used the FISA Court thousands of times, but at the same time
they assert that FISA is an "old law" or "out of date" and they can't comply
with it. Clearly they can and do comply with it - except when they don't. Then
they just arbitrarily decide to go around these judges, and around the law.

The Administration has said that it ignored FISA because it takes too long
to get a warrant under that law. But we know that in an emergency, where the
Attorney General believes that surveillance must begin before a court order can
be obtained, FISA permits the wiretap to be executed immediately as long as the
government goes to the court within 72 hours. The Attorney General has
complained that the emergency provision does not give him enough flexibility, he
has complained that getting a FISA application together or getting the necessary
approvals takes too long. But the problems he has cited are bureaucratic
barriers that the executive branch put in place, and could easily remove if it
wanted.

FISA also permits the Attorney General to authorize unlimited warrantless
electronic surveillance in the United States during the 15 days following a
declaration of war, to allow time to consider any amendments to FISA required by
a wartime emergency. That is the time period that Congress specified. Yet the
President thinks that he can do this indefinitely.

In the State of the Union, the President also argued that federal courts had
approved the use of presidential authority that he was invoking. But that turned
out to be misleading as well. When I asked the Attorney General about this, he
could point me to no court - not the Supreme Court or any other court - that has
considered whether, after FISA was enacted, the President nonetheless had the
authority to bypass it and authorize warrantless wiretaps. Not one court. The
Administration's effort to find support for what it has done in snippets of
other court decisions would be laughable if this issue were not so serious.

The President knows that FISA makes it a crime to wiretap Americans in the
United States without a warrant or a court order. Why else would he have assured
the public, over and over again, that he was getting warrants before engaging in
domestic surveillance?

Here's what the President said on April 20, 2004: "Now, by the way, any time
you hear the United States government talking about wiretap, it requires - a
wiretap requires a court order. Nothing has changed, by the way. When we're
talking about chasing down terrorists, we're talking about getting a court order
before we do so."

And again, on July 14, 2004: "The government can't move on wiretaps or
roving wiretaps without getting a court order."

The President was understandably eager in these speeches to make it clear
that under his administration, law enforcement was using the FISA Court to
obtain warrants before wiretapping. That is understandable, since wiretapping
Americans on American soil without a warrant is against the law.

And listen to what the President said on June 9, 2005: "Law enforcement
officers need a federal judge's permission to wiretap a foreign terrorist's
phone, a federal judge's permission to track his calls, or a federal judge's
permission to search his property. Officers must meet strict standards to use
any of these tools. And these standards are fully consistent with the
Constitution of the US"

Now that the public knows about the domestic spying program, he has had to
change course. He has looked around for arguments to cloak his actions. And all
of them are completely threadbare.

The President has argued that Congress gave him authority to wiretap
Americans on US soil without a warrant when it passed the Authorization for Use
of Military Force after September 11, 2001. Mr. President, that is ridiculous.
Members of Congress did not think this resolution gave the President blanket
authority to order these warrantless wiretaps. We all know that. Anyone in this
body who would tell you otherwise either wasn't here at the time or isn't
telling the truth. We authorized the President to use military force in
Afghanistan, a necessary and justified response to September 11. We did not
authorize him to wiretap American citizens on American soil without going
through the process that was set up nearly three decades ago precisely to
facilitate the domestic surveillance of terrorists - with the approval of a
judge. That is why both Republicans and Democrats have questioned this theory.

This particular claim is further undermined by congressional approval of the
Patriot Act just a few weeks after we passed the Authorization for the Use of
Military Force. The Patriot Act made it easier for law enforcement to conduct
surveillance on suspected terrorists and spies, while maintaining FISA's
baseline requirement of judicial approval for wiretaps of Americans in the US It
is ridiculous to think that Congress would have negotiated and enacted all the
changes to FISA in the Patriot Act if it thought it had just authorized the
President to ignore FISA in the AUMF.

In addition, in the intelligence authorization bill passed in December 2001,
we extended the emergency authority in FISA, at the Administration's request,
from 24 to 72 hours. Why do that if the President has the power to ignore FISA?
That makes no sense at all.

The President has also said that his inherent executive power gives him the
power to approve this program. But here the President is acting in direct
violation of a criminal statute. That means his power is, as Justice Jackson
said in the steel seizure cases half a century ago, "at its lowest ebb." A
recent letter from a group of law professors and former executive branch
officials points out that "every time the Supreme Court has confronted a statute
limiting the Commander-in-Chief's authority, it has upheld the statute." The
Senate reports issued when FISA was enacted confirm the understanding that FISA
overrode any pre-existing inherent authority of the President. As the 1978
Senate Judiciary Committee report stated, FISA "recognizes no inherent power of
the president in this area." And "Congress has declared that this statute, not
any claimed presidential power, controls." Contrary to what the President told
the country in the State of the Union, no court has ever approved warrantless
surveillance in violation of FISA.

The President's claims of inherent executive authority, and his assertions
that the courts have approved this type of activity, are baseless.

The President has argued that periodic internal executive branch review
provides an adequate check on the program. He has even characterized this
periodic review as a safeguard for civil liberties. But we don't know what this
check involves. And we do know that Congress explicitly rejected this idea of
unilateral executive decision-making in this area when it passed FISA.

Finally, the president has tried to claim that informing a handful of
congressional leaders, the so-called Gang of Eight, somehow excuses breaking the
law. Of course, several of these members said they weren't given the full story.
And all of them were prohibited from discussing what they were told. So the fact
that they were informed under these extraordinary circumstances does not
constitute congressional oversight, and it most certainly does not constitute
congressional approval of the program. Indeed, it doesn't even comply with the
National Security Act, which requires the entire memberships of the House and
Senate Intelligence Committee to be "fully and currently informed of the
intelligence activities of the United States."

In addition, we now know that some of these members expressed concern about
the program. The Administration ignored their protests. Just last week, one of
the eight members of Congress who has been briefed about the program,
Congresswoman Jane Harman, ranking member of the House Intelligence Committee,
said she sees no reason why the Administration cannot accomplish its goals
within the law as currently written.

None of the President's arguments explains or excuses his conduct, or the
NSA's domestic spying program. Not one. It is hard to believe that the President
has the audacity to claim that they do. It is a strategy that really hinges on
the credibility of the office of the Presidency itself. If you just insist that
you didn't break the law, you haven't broken the law. It reminds me of what
Richard Nixon said after he had left office: "Well, when the president does it
that means that it is not illegal." But that is not how our constitutional
democracy works. Making those kinds of arguments is damaging the credibility of
the Presidency.

And what's particularly disturbing is how many members of Congress have
responded. They stood up and cheered. They stood up and cheered.

Justice Louis Brandeis once wrote: "Experience should teach us to be most on
our guard to protect liberty when the Government's purposes are beneficent. Men
born to freedom are naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding."

The President's actions are indefensible. Freedom is an enduring principle.
It is not something to celebrate in one breath, and ignore the next. Freedom is
at the heart of who we are as a nation, and as a people. We cannot be a beacon
of freedom for the world unless we protect our own freedoms here at home.

The President was right about one thing. In his address, he said "We love
our freedom, and we will fight to keep it."

Yes, Mr. President. We do love our freedom, and we will fight to keep it. We
will fight to defeat the terrorists who threaten the safety and security of our
families and loved ones. And we will fight to protect the rights of law-abiding
Americans against intrusive government power.

As the President said, we must always be clear in our principles. So let us
be clear: We cherish the great and noble principle of freedom, we will fight to
keep it, and we will hold this President - and anyone who violates those
freedoms - accountable for their actions. In a nation built on freedom, the
President is not a king, and no one is above the law.

I yield the floor.