Statement of Senator Russ Feingold
On the President’s Warrantless Wiretapping Program
As Prepared for Delivery From the Senate Floor
Listen
to my Statement From the Senate Floor
February 7, 2006
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 U.S.”
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 U.S. 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 U.S. 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.
| 