The Problems With The FISA Capitulation Bill

With today's damning Senate vote concerning the FISA capitulation bill, let's hear it from none other than Senator Russ Feingold (D-WIS), who has been against this travesty from the get-go:

The Problems with the FISA Bill
A Threat to the Privacy Rights of All Americans

A number of Senators came to the floor prior to the Fourth of July recess to debate the FISA legislation, and more debate has occurred this week. We have heard arguments for and against the legislation, and Senators have cited a variety of reasons for their positions.

Several have defended the bill by arguing that the legislation includes improvements compared to the Senate bill we passed earlier this year. I was not surprised to hear that line of argument. I agree that there are some improvements to the Senate bill contained in the legislation that we are now considering. But those changes are not nearly enough to justify supporting the bill, as I will explain in a few moments.

I was surprised to hear, however, several Senators still defending the legality of the President’s warrantless wiretapping program, and still arguing that Congress had somehow signed off on this program years ago because the Gang of Eight was notified. Mr. President, I thought we were well past these arguments. Two and a half years after this illegal program became public, I cannot believe that we are still debating the legality of this program on the Senate floor, and that anyone seriously believes that merely notifying the Gang of Eight – while keeping the full intelligence committees in the dark -- somehow represents congressional approval.

Mr. President, it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public. So if we are going to go back and discuss these issues that I thought had long since been put to rest, let’s cover the full history.

Here is the part of the story that some seem to have forgotten. In January 2005, eleven months before the New York Times broke the story of the illegal wiretapping program, I asked then-White House Counsel Alberto Gonzales at his confirmation hearing to be Attorney General whether the President had the power to authorize warrantless wiretaps in violation of the criminal law. Neither I nor the vast majority of my colleagues knew it then, but the President had authorized the NSA program three years before, and Mr. Gonzales was directly involved in that issue as White House Counsel. At his confirmation hearing, he 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, the President’s wiretapping program was in direct contravention of our criminal statutes. Mr. Gonzales knew that, but 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.

The President, too, misled Congress and the American public. In 2004 and 2005, when Congress was considering the reauthorization of the USA Patriot Act, the President went out of his way to assure us that his administration was getting court orders for wiretaps, all the while knowing full well that his warrantless wiretapping program was ongoing.

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.”

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 U.S.”

So please, let’s not pretend that the highly classified notification to the Gang of Eight, delivered while the President himself was repeatedly presenting a completely different picture to the public, suggests that Congress somehow acquiesced to this program. As the members of this body well know, several members of the Gang of Eight at the time raised concerns when they were told about this, and several have since said they were not told the full story. And of course all of them were instructed not to share what they had learned with a single other person.

Mr. President, I also cannot leave unanswered the arguments mounted in defense of the legality of the NSA program.

I will not spend much time on the argument that the Authorization for Use of Military Force that Congress passed on September 18, 2001, authorized this program. That argument has been thoroughly discredited. In the AUMF, Congress authorized the President to use military force against those who attacked us on 9/11, a necessary and justified response to the attacks. We did not authorize him to wiretap American citizens on American soil without going through the judicial process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of spies and terrorists.

Senators have also dragged out the same old tired arguments about the President’s supposed inherent executive authority to violate FISA. They argue that a law passed by Congress can’t trump the President’s power under the Constitution. That argument may sound good, but it assumes what it is trying to prove – that the Constitution gives the President the power to authorize warrantless wiretaps in certain cases. You can’t simply say that any claim of executive power prevails over a statute – at least, not if you are serious about the rule of law, and about how to interpret the Constitution. The real question is, when a claim of executive power and a statute arguably conflict, how do you resolve that conflict?

Fortunately, the Supreme Court has told us how to answer that question. We are talking here about the President acting in direct violation of a criminal statute. That means his power was, as Justice Jackson said in his famous and influential concurrence in the Steel Seizure cases half a century ago, “at its lowest ebb.” In other words, when a President argues that he has the power to violate a specific law, he is on shaky ground. That’s not just my opinion – it’s what the Supreme Court has made clear. No less an authority than the current Chief Justice of the United States, John Roberts, repeatedly recognized in his confirmation hearings that Justice Jackson’s three-part test is the appropriate framework for analyzing questions of executive power. In early 2006, a distinguished group of law professors and former executive branch officials wrote a letter pointing 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. The 1978 Senate Judiciary Committee report stated that FISA “recognizes no inherent power of the president in this area.” And “Congress has declared that this statute, not any claimed presidential power, controls.”

And contrary to what has been said on this floor, no court has ever approved warrantless surveillance in violation of FISA based on some theory of Article II authority. The Truong case that so often gets hauled out to make this argument was a Vietnam-era case based on surveillance that occurred before FISA was enacted, so it could not have decided this issue. And the issue before the FISA Court of Review in 2002 had nothing to do with inherent presidential authorities. Yet these cases are repeatedly cited by supporters of the President, complete with large charts of the supposedly relevant quotations. The fact is that not a single court – not the Supreme Court or any other court – has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps.

In fact, Mr. President, as the Senator from Pennsylvania and I discussed on the floor yesterday, just last week a federal district court strongly indicated that were it to reach that issue, it would find that the President must in fact follow FISA. The court was considering whether the state secrets privilege applies to claims brought under the FISA civil liability provisions, and found that it does not. Its reasoning was based on the conclusion that Congress had spoken clearly that it intended FISA and the criminal wiretap laws to be the exclusive means by which electronic surveillance is conducted, and had fully occupied the field in this area, replacing any otherwise applicable common law. Here is what the court said: “Congress appears clearly to have intended to – and did – establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities...”

And a district court in Michigan also has held that the President’s wiretapping program was unconstitutional, although that decision was reversed on procedural grounds by the Sixth Circuit. So to the extent there is any case law that actually addresses this issue, it undercuts the administration’s arguments. It certainly does not support those arguments.

Mr. President, we also have heard that past American presidents have cited executive authority to order warrantless surveillance. But of course those past presidents – Presidents Wilson and Roosevelt are often cited – 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. So those examples are simply not relevant.

In sum, the arguments that the President has inherent executive authority to violate the law are baseless. It’s not even a close case. And the repeated efforts here in the Senate to pretend otherwise are very discouraging.


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