Remarks of Senator Russ Feingold
Introducing a Resolution to Censure President George W. Bush
As Prepared
March 13, 2006
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to Senator Feingold's Remarks
Mr. President, when the President of the United States breaks the law,
he must be held accountable. That is why today I am introducing a resolution
to censure President George W. Bush.
The President authorized an illegal program to spy on American citizens
on American soil, and then misled Congress and the public about the
existence and legality of that program. It is up to this body to reaffirm
the rule of law by condemning the President’s actions.
All of us in this body took an oath to support and defend the Constitution
of the United States and bear true allegiance to the same. Fulfilling
that oath requires us to speak clearly and forcefully when the President
violates the law. This resolution allows us to send a clear message
that the President’s conduct was wrong.
And we must do that. The President’s actions demand a formal
judgment from Congress.
At moments in our history like this, we are reminded why the founders
balanced the powers of the different branches of government so carefully
in the Constitution. At the very heart of our system of government lies
the recognition that some leaders will do wrong, and that others in
the government will then bear the responsibility to do right.
This President has done wrong. This body can do right by condemning
his conduct and showing the people of this nation that his actions will
not be allowed to stand unchallenged.
To date, members of Congress have responded in very different ways
to the President’s conduct. Some are responding by defending his
conduct, ceding him the power he claims, and even seeking to grant him
expanded statutory authorization powers to make his conduct legal. While
we know he is breaking the law, we do not know the details of what the
President has authorized or whether there is any need to change the
law to allow it, yet some want to give him carte blanche to continue
his illegal conduct. To approve the President’s actions now, without
demanding a full inquiry into this program, a detailed explanation for
why the President authorized it, and accountability for his illegal
actions, would be irresponsible. It would be to abandon the duty of
the legislative branch under our constitutional system of separation
of powers while the President recklessly grabs for power and ignores
the rule of law.
Others in Congress have taken important steps to check the President.
Senator Specter has held hearings on the wiretapping program in the
Judiciary Committee. He has even suggested that Congress may need to
use the power of the purse in order to get some answers out of the Administration.
And Senator Byrd has proposed that Congress establish an independent
commission to investigate this program.
As we move forward, Congress will need to consider a range of possible
actions, including investigations, independent commissions, legislation,
or even impeachment. But, at a minimum, Congress should censure a president
who has so plainly broken the law.
Our founders anticipated that these kinds of abuses would occur. Federalist
Number 51 speaks of the Constitution’s system of checks and balances:
“It may be a reflection on human nature, that such devices should
be necessary to control the abuses of government. But what is government
itself, but the greatest of all reflections on human nature? If men
were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary.
In framing a government which is to be administered by men over men,
the great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to control
itself.”
Mr. President, we are faced with an executive branch that places itself
above the law. The founders understood that the branches must check
each other to control abuses of government power. The president’s
actions are such an abuse, Mr. President. His actions must be checked,
and he should be censured.
This President exploited the climate of anxiety after September 11,
2001, both to push for overly intrusive powers in the Patriot Act, and
to take us into a war in Iraq that has been a tragic diversion from
the critical fight against al Qaeda and its affiliates. In both of those
instances, however, Congress gave its approval to the President’s
actions, however mistaken that approval may have been.
That was not the case with the illegal domestic wiretapping program
authorized by the President shortly after September 11th. The President
violated the law, ignored the Constitution and the other two branches
of government, and disregarded the rights and freedoms upon which our
country was founded. No one questions whether the government should
wiretap suspected terrorists. Of course we should, and we can under
current law. If there were a demonstrated need to change that law, Congress
could consider that step. But instead the President is refusing to follow
that law while offering the flimsiest of arguments to justify his misconduct.
He must be held accountable for his actions.
The facts are straightforward: Congress passed the Foreign Intelligence
Surveillance Act, known as “FISA”, nearly 30 years ago to
ensure that as we wiretap suspected terrorists and spies, we also protect
innocent Americans from unjustified government intrusion. FISA makes
it a crime to wiretap Americans on U.S. soil without the requisite warrants,
and the President has ordered warrantless wiretaps of Americans on U.S.
soil. The President has broken that law, and that alone is unacceptable.
But the President did much more than that.
Not only did the President break the law, he also actively misled Congress
and the American people about his actions, and then, when the program
was made public, about the legality of the NSA program.
He has fundamentally violated the trust of the American people.
The President’s own words show just how seriously he has violated
that trust.
We now know that the NSA wiretapping program began not long after September
11th. Before the existence of this program was revealed, the President
went out of his way in several speeches to assure the public that the
government was getting court orders to wiretap Americans in the United
States – something that he now admits was not the case.
On April 20, 2004, for example, the President told an audience in Buffalo
that: “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.”
In fact, a lot had changed, but the President wasn’t being upfront
with the American people.
Just months later, on July 14, 2004, in my own state of Wisconsin,
the President said that: “Any action that takes place by law enforcement
requires a court order. In other words, the government can't move on
wiretaps or roving wiretaps without getting a court order.”
Last summer, on June 9, 2005, the President spoke in Columbus, Ohio,
and again insisted that his administration was abiding by the laws governing
wiretaps. “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.”
In all of these cases, the President knew he wasn’t telling the
complete story. But engaged in tough political battle during the presidential
campaign, and later over Patriot Act reauthorization, he wanted to convince
the public that a systems of checks and balances was in place to protect
innocent people from government snooping. He knew when he gave those
reassurances that he had authorized the NSA to bypass the very system
of checks and balances that he was using as a shield against criticisms
of the Patriot Act and his Administration’s performance.
This conduct is unacceptable. The President had a duty to play it straight
with the American people. But for political purposes, he ignored that
duty.
After a New York Times story exposed the NSA program in December of
last year, the White House launched an intensive effort to mislead the
American people yet again. No one would come to testify before Congress
until February, but the President’s surrogates held press conferences
and made speeches to try to convince the public that he had acted lawfully.
Most troubling of all, the President himself participated in this disinformation
campaign. In the State of the Union address, he implied that the program
was necessary because otherwise the government would be unable to wiretap
terrorists at all. That is simply untrue. In fact, nothing could be
further from the truth. You don’t need a warrant to wiretap terrorists
overseas – period. You do need a warrant to wiretap Americans
on American soil and Congress passed FISA specifically to lay out the
rules for these types of domestic wiretaps.
FISA created a secret court, made up of judges who develop national
security expertise, to issue warrants for surveillance of suspected
terrorists and spies. These are the judges from whom the Bush Administration
has obtained thousands of warrants since 9/11. They are the judges who
review applications for business records orders and wiretapping authority
under the Patriot Act. The Administration has almost never had a warrant
request rejected by those judges. It has used the FISA Court thousands
of times, but at the same time it asserts that FISA is an “old
law” or “out of date” in this age of terrorism and
can’t be complied with. Clearly, the Administration can and does
comply with it – except when it doesn’t. Then it just arbitrarily
decides 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 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.
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 pass this resolution to give
the President blanket authority to order 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 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.
But it is one thing to make a legal argument that has no real support
in the law. It is much worse to do what the President has done, which
is to make misleading statements about what prior Presidents have done
and what courts have approved, to try to make the public believe his
legal arguments are much stronger than they are.
For example, in the State of the Union, the President argued that federal
courts have approved the use of presidential authority that he was invoking.
I asked the Attorney General about this when he came before the Judiciary
Committee, and 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.
In the same speech, the President referred to other 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 could no longer unilaterally
decide which Americans to wiretap. I asked the Attorney General about
this issue when he testified before the Judiciary Committee. And neither
he nor anyone in the Administration has been able to come up with a
single prior example of wiretapping inside the United States since 1978
that was conducted outside FISA’s authorization.
So the President’s arguments in the State of the Union were baseless,
and it is unacceptable that the President of the United States would
so obviously mislead the Congress and American public.
The President also 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.” Nor does the latest agreement
to allow a seven-member subcommittee to review the program comply with
the law. Granting a minority of the committee access to information
is inadequate and still does not comply with the law requiring that
the full committee be kept fully informed.
In addition, we now know that some of the Gang of Eight expressed concern
about the program. The Administration ignored their protests. One of
the eight members of Congress who has been briefed about the program,
Congresswoman Jane Harman, ranking member of the House Intelligence
Committee, has 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.
And perhaps that is what is most troubling here, Mr. President. Even
more troubling than the arguments the President has made is what he
relies on to make them convincing – the credibility of the office
of the President itself. He essentially argues that the American people
should trust him simply because of the office he holds.
But Presidents don’t serve our country by just asking for trust,
they must earn that trust, and they must tell the truth.
This President hides behind flawed legal arguments, and even behind
the office he holds, but he cannot hide from what he has created: nothing
short of a constitutional crisis. The President has violated the law,
and Congress must respond. Congress must investigate and demand answers.
Congress should also determine whether current law is inadequate and
address that deficiency if it is demonstrated. But before doing so,
Congress should ensure that there is accountability for authorizing
illegal conduct.
A formal censure by Congress is an appropriate and responsible first
step to assure the public that when the President thinks he can violate
the law without consequences, Congress has the will to hold him accountable.
If Congress does not reaffirm the rule of law, we will create another
failure of leadership, and deal another blow to the public’s trust.
The President’s wrongdoing demands a response. And not just a
response that prevents wrongdoing in the future, but a response that
passes judgment on what has happened. We in the Congress bear the responsibility
to check a President who has violated the law, who continues to violate
the law, and who has not been held accountable for his actions.
Passing a resolution to censure the President is a way to hold this
President accountable. A resolution of censure is a time-honored means
for the Congress to express the most serious disapproval possible, short
of impeachment, of the Executive’s conduct. It is different than
passing a law to make clear that certain conduct is impermissible or
to cut off funding for certain activities. Both of those alternatives
are ways for Congress to affect future action. But when the President
acts illegally, he should be formally rebuked. He should be censured.
The founders anticipated abuses of executive power by creating a balance
of powers in the Constitution. Supporting and defending the Constitution,
as we have taken an oath to do, require us to preserve that balance,
and to have the will to act. We must meet a serious transgression by
the President with a serious response. We must work, as the founders
urged us in Federalist Number 51, to control the abuses of government.
The Constitution looks to the Congress to right the balance of power.
The American people look to us to take action, to speak out, with one
clear voice, against wrongdoing by the President of the United States.
In our system of government, no one, not even the President, is above
the law.
Mr. President, I ask unanimous consent that the text of the resolution
be printed in the Record following my remarks. I yield the floor.
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