Fact Check from U.S. Senator Russ Feingold
Myth vs. Reality on the President’s Warrantless Wiretapping
Program
Since the disclosure of the wiretapping program in December
2005, the arguments defending the legality of the president’s
actions have been based on myths, not the facts.
Myth: Congress
needs to hold hearings on the NSA wiretapping program before a measure
like censure is discussed.
Fact: The Senate
Judiciary Committee has held multiple hearings on the issue despite
the refusal of the administration to cooperate. Further hearings and
investigation are necessary but those hearings will not change the
fact that the President broke the law.
Congress has held multiple hearings on the wiretapping program and
the administration has not been forthcoming with information about
the program. The Senate Judiciary Committee has held three hearings
on the issue – on February 6th, February 28th, and March 28th,
2006. The administration has provided only one official to testify
before the Judiciary Committee, Attorney General Alberto Gonzales
on February 6th. Under questioning, the Attorney General could not
cite a single example of a President, other than George W. Bush, who
has authorized wiretapping on American soil outside of FISA since
FISA was enacted. Nor could he cite a single court decision –
let alone a Supreme Court decision – that holds that the President
has the authority to bypass FISA and authorize warrantless wiretaps.
Congress does need to hold more hearings to better understand the
facts of how the program is conducted but it does not need any more
hearings to know that the President broke the law.
Myth: The Senate Intelligence Committee
is performing oversight of the warrantless wiretapping program, and
that is sufficient.
Fact: The Senate Intelligence Committee
has abdicated its duty to be a check on the executive by refusing
to fully investigate the program.
On March 7th, the Senate
Select Committee on Intelligence declined to authorize an investigation
into the warrantless wiretapping program despite the fact that the
National Security Act of 1947 explicitly requires the President to
keep the congressional intelligence committees “fully and currently
informed of all intelligence activities.” A new subcommittee
of the Intelligence Committee is looking at the program, but this
is not adequate oversight or consistent with the National Security
Act.
Myth: The law is unclear about whether the
President’s wiretapping program is legal.
Fact: The law is clear that the criminal
wiretap statute and Foreign Intelligence Surveillance Act (FISA) are
the only authority for wiretapping individuals inside the United States.
The few details that the President has provided about his wiretapping
program show clearly that that he ignored these laws.
FISA states specifically that the criminal wiretap statute and FISA
“shall be the exclusive means by which electronic surveillance
. . . and the interception of domestic wire, oral, and electronic
communications may be conducted.” The President and his administration
have conceded that the program is conducted without getting the court
orders required by FISA.
Myth: Congress gave the president the authority
to wiretap Americans on American soil without a court order when it
voted to authorize the use of military force in Afghanistan.
Fact: There is no language in the Authorization
for the Use of Military Force (AUMF) suggesting that it authorizes
the President to authorize warrantless wiretaps of Americans on American
soil.
The President has argued that Congress gave him
authority to wiretap Americans on American soil without a warrant
when it passed the AUMF after September 11, 2001. There is no language
in the resolution, and no evidence, to suggest that it was intended
to give the President authority to order these warrantless wiretaps.
Warrantless domestic surveillance is not an “incident of war”
akin to detaining an enemy soldier on the battlefield as the Administration
has argued. In fact, Congress passed the Patriot Act just six weeks
after September 11 to expand the government’s powers to conduct
surveillance of suspected terrorists and spies. Yet the Administration
did not ask for, nor did the Patriot Act include, any change to FISA’s
requirement of judicial approval for wiretaps of Americans in the
United States. Indeed, Sen. Daschle has stated that the Administration
asked for language that would have authorized “appropriate force
in the United States” and that he specifically rejected that
request.
Myth: The Constitution gives the President
authority to wiretap Americans on American soil without a court order
even if it violates a statute.
Fact: FISA prohibits this kind of wiretapping
program. Ever time the Supreme Court has confronted a statute limiting
the Commander in Chief’s authority, it has upheld the statute.
The President has extensive authority when it comes to national security
and foreign affairs, but given the clear prohibition in FISA, that
authority does not include the power to wiretap American citizens
on American soil without a warrant. In the landmark 1952 Supreme Court
case Youngstown v Ohio, then Supreme Court Justice Robert Jackson
wrote that presidential authority is at its "lowest ebb"
when it is "incompatible with the expressed or implied will of
Congress."
