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Senator Feingold On Bush Illegal Wiretapping

Congressional Record: September 13, 2006 (Senate) Page S9502-S9503

Mr. FEINGOLD. Mr. President, I join the vice chairman of the Intelligence Committee in expressing my concerns about the Committee's inability to conduct oversight of the President's illegal warrantless wiretapping program. Unfortunately, the administration's continued defiance of Congress is simply the latest in a series of efforts to hide its illegal activities and obscure the true extent of its power grab.

Let us not forget how we got to this point. For 4 years, the administration conducted a plainly illegal program, eavesdropping on Americans on American soil without the warrants required under the Foreign Intelligence Surveillance Act, or FISA. During this time, the administration refused to inform the full congressional intelligence committees, in clear violation of the National Security Act.

Then, late last year, the program was revealed in the press. Rather than admit that it had broken the law and explain why it had done so, the administration used the occasion to embark on a coordinated and misleading public relations campaign. In speeches and press conferences, administration officials repeatedly asserted that domestic eavesdropping without a warrant was necessary to conduct surveillance of terrorist suspects, and it suggested that those committed to the rule of law were unconcerned about the terrorist threat.

Even the title the administration has bestowed upon its illegal behavior--the Terrorist Surveillance Program--is misleading. We already have a ``terrorist surveillance program.'' It is called FISA. It permits the surveillance of terrorist suspects in the United States, with the approval of a secret court, and it has been the law of the land for nearly 30 years.

Let us also not forget the administration's illegal defiance of congressional oversight. For 4\1/2\ years, including several months after the warrantless wiretapping program was revealed in the press, the administration violated the National Security Act by refusing to brief the congressional intelligence committees on the program. The administration began the briefings required by law only when it became clear that its defiance might complicate the nomination of General Hayden, who, as the then-Director of the NSA, implemented the program and had been nominated as the new Director of the CIA. Despite months of public discussion about the program by administration officials, the majority of the members of the Senate Intelligence Committee were briefed about the program for the first time only on the eve of General Hayden's confirmation hearing in May.

Those of us who hoped that this belated briefing marked a change in attitude--and a recognition of the administration's legal responsibilities--were quickly disappointed. That is why, later that month, the full Senate Intelligence Committee called on the administration to work with the committee so that we could conduct ongoing, thorough oversight over the operational, legal and budgetary aspects of the program. The cooperation requested by the Committee has not happened, however. And, as the vice chairman has pointed out, the administration continues to refuse to provide the committee with critical documents and information necessary to review the program.

The congressional intelligence committees review highly sensitive classified intelligence programs every day. That is their job. The vast majority of those programs have never been publicly disclosed. Yet the warrantless wiretapping program--which has been the subject of speeches, press conferences and public testimony by administration officials, making it the most widely examined, the most public program in NSA's history--is the one program the administration still refuses to explain fully to the congressional intelligence committees.

The vice chairman of the committee has described some of the materials that the administration has thus far refused to provide the committee--Presidential orders authorizing the program, legal reviews and opinions relating to the program, and procedures and guidelines on the use of information obtained through the program. All of these materials relate to the legality of the program. It is difficult to avoid the conclusion that the administration has stonewalled the committee's efforts to conduct oversight of this program not because the program is uniquely sensitive, but because it is illegal.

While the Intelligence Committee has been unable to conduct oversight of the warrantless surveillance program, the Judiciary Committee, which this morning reported out a bill that seeks to legalize the program, has been denied access to any information about the program. Attorney General Gonzales has provided testimony to the Judiciary Committee, but that testimony has been limited to a careful repetition of only what the President has already publicly acknowledged. As a result, the Judiciary Committee does not have access to information it needed before it should even have begun considering legislation, including many of the legal documents denied the Intelligence Committee. The Judiciary Committee was left to legislate in the dark, with many members blindly seeking to legalize illegal behavior without even an understanding of whether those changes are actually necessary.

And now, we face the prospect that the full Senate may consider legislation related to the program. It is bad enough to have a committee legislate in the dark. But having the entire Senate debate legislation when just a few Senators--those on the Intelligence

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Committee--have any information at all on the subject of the legislation only makes things worse.

In the rush to rubberstamp the administration's unconstitutional power grab, Congress could end up turning the legislative process on its head. As an institution, and as elected representatives of the American people, it is our responsibility to make sure the President complies with the law. Instead, Republican leaders are rushing to make sure the law complies with the President. That is far from the ringing affirmation of the rule of law that we should expect from Congress in response to the administration's law-breaking.

If Congress and the administration are going to take seriously their respective responsibilities, four things must happen. First, the congressional intelligence committees must demand that the administration provide documents and information related to the warrantless surveillance program and insist on the same kind of thorough oversight to which other intelligence programs are subject. The National Security Act requires that the committees be kept fully and currently informed of all intelligence programs. It is long past time for the administration to respect the spirit of that law.

Second, the administration must provide the information the Judiciary Committee needs about the program so that it can reconsider the uninformed and dangerous legislation reported out this morning. That does not mean the Judiciary Committee has to see operational details about the program. It does mean it needs to understand the basics of the program and the administration's contemporaneous legal justifications throughout the duration of the program. Certainly, the Judiciary Committee should not even have begun to consider expanding FISA before it received an explanation from the administration as to why it was unwilling to comply with current law. The administration has never provided that explanation because, in my view, it cannot. From what I have seen as a member of the Intelligence Committee, the surveillance that the administration says is necessary to protect this country can be accommodated without violating FISA.

We can listen in on terrorist suspects without surrendering the basic principle of individualized warrants. We can be secure without having to accept unchecked executive power. We can effectively fight terrorism without sacrificing the rights and freedoms that make this country the greatest beacon for individual liberty in the history of the world.

The mere assertion by the President that FISA no longer applies cannot be the basis for eradicating 30 years of law and jurisprudence. Congress should demand answers before deciding whether and how to amend FISA.

This leads me to my third point--that the Judiciary Committee should carefully and thoroughly consider any specific proposals for improving the FISA law, closely examining whether they are justified. Despite the action this morning, we have not done that yet. Recent testimony by Generals Alexander and Hayden provided some possible suggestions as to ways that FISA might be modernized--the kinds of suggestions that should have been made years ago. Congress should encourage more such exchanges, and should consider major revisions to FISA only after it can fully assess the need for such legislation as well as its ultimate impact. By rushing to legitimize and legalize domestic surveillance that does not comply with the FISA law, Congress only short-circuits this process.

And fourth, regardless of current oversight and legislative efforts, the President needs to be held accountable for breaking the law. His domestic warrantless wiretapping program is illegal. The legal arguments put forward to justify the program are as dubious today as they were when they were made last December, particularly in light of the recent Supreme Court decision in Hamdan. The President's failure to inform the full congressional intelligence committees about the program for years was also illegal, and his subsequent decision to provide only limited information about the program to the intelligence committees at the least violates the spirit of the National Security Act. And the President continues, to this day, to mislead the country about terrorist surveillance and FISA. For these reasons, Congress should censure the President. The challenging and crucial work of defending our Nation against a determined enemy demands a return to the rule of law. We are stronger as a law-abiding country, not weaker.

We should be working together to protect America. The President's power grab has been a long and costly distraction. It has undermined a preexisting consensus about how to defend our country and its democratic traditions. It has resulted in a completely unnecessary stand-off between the executive branch and Congress. And it has resulted in an administration publicly making the untenable argument that the laws passed by Congress can be ignored.

None of this was inevitable. And it can all be resolved, if only we take a step back and remember the principles on which our system of government was based. The balance of powers enshrined in the Constitution and the freedoms contained in the Bill of Rights are not impediments to our national security. They are our strength. We can and must fight terrorism aggressively without undermining the rule of law on which this country stands.


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