Remarks
of U.S. Senator Russ Feingold
In Opposition to the FISA Amendments Act
Download the Audio
July 9, 2008
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.
Mr. President, it may seem
that I am going over ancient history because this program is no longer
operating outside the law. But this is directly relevant to the current
debate. The bill the Senate is considering would grant retroactive immunity
to any companies that cooperated with a blatantly illegal program that
went on for more than five years – and that the administration
repeatedly misled Congress about.
If Congress short-circuits
these lawsuits, we will have lost a prime opportunity to finally achieve
accountability for these years of law-breaking. That’s why the
administration has been fighting so hard for this immunity. It knows
that the cases that have been brought directly against the government
face much more difficult procedural barriers, and are unlikely to result
in rulings on the merits.
These lawsuits may be the
last chance to obtain a judicial ruling on the lawfulness of the warrantless
wiretapping program. It’s bad enough that Congress abdicated its
responsibility to hold the President accountable for breaking the law.
Now it is trying to absolve those who allegedly participated in his
lawlessness. Mr. President, this body should be condemning this administration
for its law-breaking – not letting the companies that allegedly
cooperated off the hook.
And this body certainly should
not grant the government new, over-expansive surveillance authorities,
which brings me to the part of the bill that in some ways concerns me
even more than the immunity provision. Let me explain why I am so concerned
about the new surveillance powers granted in this bill, and why the
modest improvements made to this part of the bill don’t go nearly
far enough.
First, the FISA Amendments
Act would authorize the government to collect all communications between
the U.S. and the rest of the world. That could mean millions upon millions
of communications between innocent Americans and their friends, families,
or business associates overseas could legally be collected. Parents
calling their kids studying abroad, emails to friends serving in Iraq
– all of these communications could be collected, with absolutely
no suspicion of any wrongdoing, under this legislation.
Second, like the earlier
Senate version, this bill fails to effectively prohibit the practice
of reverse targeting – namely, wiretapping a person overseas when
what the government is really interested in is listening to an American
here at home with whom the foreigner is communicating. The bill does
have a provision that purports to address this issue. It prohibits intentionally
targeting a person outside the U.S. without an individualized court
order if, quote, “the purpose” is to target someone reasonably
believed to be in the U.S. At best, this prevents the government from
targeting a person overseas as a complete pretext for getting information
on someone in the U.S. But this language would permit intentional and
possibly unconstitutional warrantless surveillance of an American so
long as the government has any interest, no matter how small, in the
person overseas with whom the American is communicating. The bill does
not include language that had the support of the House and the vast
majority of the Senate’s Democratic caucus, to require the government
to obtain a court order whenever a significant purpose of the surveillance
is to acquire the communications of an American in the U.S. The administration’s
refusal to accept that reasonable restriction on its power is telling.
Third, the bill before us
imposes no meaningful consequences if the government initiates surveillance
using procedures that have not been approved by the FISA Court, and
the FISA Court later finds that those procedures were unlawful. Say,
for example, the FISA Court determines that the procedures were not
even reasonably designed to wiretap foreigners outside the U.S., rather
than Americans here at home. Under the bill, all that illegally obtained
information on Americans can be retained and used. Once again, there
are no consequences for illegal behavior.
Now, unlike the Senate bill,
this new bill does generally provide for FISA Court review of surveillance
procedures before surveillance begins, and that is one of the changes
that has been touted by supporters of the bill. But the bill also says
that if the Attorney General and Director of National Intelligence certify
that they don’t have time to get a court order and that intelligence
important to national security may be lost or not timely acquired, then
they can go forward without judicial approval. This is a far cry from
allowing an exception to FISA Court review in a true emergency, because
arguably all intelligence is important to national security and any
delay at all might cause some intelligence to be lost. So I am concerned
that this ‘exigency’ exception could very well swallow the
rule and undermine any presumption of prior judicial approval.
Fourth, this bill doesn’t
protect the privacy of Americans whose communications will be collected
in vast new quantities. The Administration’s mantra has been:
“don’t worry, we have minimization procedures.” But,
Mr. President, minimization procedures are nothing more than unchecked
executive branch decisions about what information on Americans constitutes
“foreign intelligence.” That is why on the Senate floor,
I joined with Senator Webb and Senator Tester earlier this year to offer
an amendment to provide real protections for the privacy of Americans,
while also giving the government the flexibility it needs to wiretap
terrorists overseas. This bill relies solely on inadequate minimization
procedures to protect innocent Americans. They are simply not enough.
Mr. President, as I said
at the outset, some supporters of the bill have pointed to improvements
made since the Senate passed its bill earlier this year. I appreciate
that changes have been made. But those changes are either inadequate,
or they do not go to the core privacy issues raised by this bill. In
fact, as the Vice Chairman of the Senate Intelligence Committee said
just yesterday, the bill before us is “basically the Senate bill
all over again” with only “cosmetic fixes.”
For example, I am pleased
that the bill provides for FISA Court review of targeting and minimization
procedures. But as I mentioned, there is a potentially gaping loophole
allowing the executive branch to go forward with surveillance without
court review – an exception that could swallow the rule. The bill
also now explicitly directs the FISA Court to consider whether the government’s
procedures comply with the Fourth Amendment – but that is an authority
it should have had anyway.
The bill includes an Inspector
General review of the illegal program, which is a positive change, but
it does not make up for the lawsuits that are going to be dismissed
as a result of this legislation. And I strongly support the strengthened
exclusivity language, which may deter a future administration from engaging
in lawless behavior. But let’s not lose sight of the fact that
FISA as originally enacted clearly stated that it and the criminal wiretap
laws were the exclusive means for conducting electronic surveillance.
This was confirmed in the strongest terms possible by a federal district
court just last week. Only under the unprecedented legal theories of
this administration could that clear language be ignored, requiring
Congress to pass language that effectively says – No, we really
meant it. And, if this bill is enacted, I am by no means reassured that
this Administration, which repeatedly broke the law and misled the public
over the past seven years, will now respect the exclusivity of FISA.
Now, the bill does contain
a key protection for Americans traveling overseas. It says that if the
government wants to intentionally target Americans while they are outside
the country, it has to get an individualized FISA court order based
on probable cause. That is a great victory, and one we should be proud
of. But it does not override the greatly expanded authorities in this
bill to collect other types of communications involving Americans.
In sum, these improvements
are not enough. They are nowhere close. And so, Mr. President, I must
strongly oppose this bill.
When you consider how we
got here, this legislation is particularly discouraging. We discovered
in late 2005 that the President had authorized an illegal program in
blatant violation of a statute, and that Congress and the public had
been misled in a variety of ways leading up to this public revelation.
Congress, to its credit, held hearings on the program, but was largely
stonewalled by the administration for many months until the administration
grudgingly agreed to brief the intelligence committees, and more recently
the judiciary committees. Nonetheless, the vast majority of the House
and Senate have never been told what happened. In 2006, when the Republicans
tried to push through legislation to grant massive new surveillance
authorities to the executive branch, we stopped it. But now, in a Democratic-controlled
Congress, not only did we pass the Protect America Act, but we are now
about to extend for more than four years these expansive surveillance
powers – and we are about to grant immunity to companies that
are alleged to have participated in the administration’s lawlessness.
Mr. President, I sit on the
Intelligence and Judiciary Committees, and I am one of the few members
of this body who has been fully briefed on the warrantless wiretapping
program. And, based on what I know, I can promise that if more information
is declassified about the program in the future, as is likely to happen
either due to the Inspector General report, the election of a new President,
or simply the passage of time, members of this body will regret that
we passed this legislation. I am also familiar with the collection activities
that have been conducted under the Protect America Act and will continue
under this bill. I invite any of my colleagues who wish to know more
about those activities to come speak to me in a classified setting.
Publicly, all I can say is that I have serious concerns about how those
activities may have impacted the civil liberties of Americans. If we
grant these new powers to the government and the effects become known
to the American people, we will realize what a mistake it was, of that
I am sure.
So I hope my colleagues will
think long and hard about their votes on this bill, and consider how
they, and their constituents, will feel about this vote five, ten or
twenty years from now. I am confident that history will not judge this
Senate kindly if it endorses this tragic retreat from the principles
that have governed government conduct in this sensitive area for 30
years. I urge my colleagues to stand up for the rule of law and defeat
this bill.
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