Leahy On Friday Introduces Resolution
Underscoring That Congress Did Not Authorize
Illegal Spying On Americans
[WASHINGTON, Friday, Jan. 20] –
Senator Patrick Leahy, D-Vt., on Friday introduced a resolution
setting the record straight that Congress did not authorize
President Bush’s illegal spying program when it passed a 2001
resolution governing the use of military force in the war on
terror.
Leahy, the ranking Democratic member
of the Judiciary Committee and a co-author of the original USA
PATRIOT Act, offered the resolution to clarify recent misleading
claims by the Bush Administration that the Authorization for Use of
Military Force resolution approved shortly after the Sept. 11, 2001,
terror attacks provided the President with the necessary
authorization to conduct warrantless eavesdropping on Americans.
“Now that the illegal spying of
Americans has become public and the President has acknowledged the
four-year-old program, the Bush Administration’s lawyers are
contending that Congress authorized it. The September 2001
Authorization to Use Military Force did no such thing,” Leahy said.
Below is Leahy’s statement on the
resolution.
PDF of Resolution
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Statement Of Senator Patrick Leahy,
Ranking Member, Judiciary Committee
Introduction Of Resolution
Regarding The Authorization For Use Of Military Force
January 20, 2006
Mr. LEAHY. Mr. President, today I am
introducing this resolution expressing the sense of the Senate that
the Authorization for Use of Military Force, which Congress passed
to authorize military action against those responsible for the
attacks on September 11, 2001, did not authorize warrantless
eavesdropping on American citizens.
As Justice O’Connor underscored
recently, even war “is not a blank check for the President when it
comes to the rights of the Nation’s citizens.”
Now that the illegal spying of
Americans has become public and the President has acknowledged the
four-year-old program, the Bush Administration’s lawyers are
contending that Congress authorized it. The September 2001
Authorization to Use Military Force did no such thing. Republican
Senators also know it and a few have said so publicly. We all know
it. The liberties and rights that define us as Americans and the
system of checks and balances that serve to preserve them should not
be sacrificed to threats of terrorism or to the expanding power of
the Government. In the days immediately following those attacks, I
said, and I continue to believe, that the terrorists win if they
frighten us into sacrificing our freedoms and what defines us as
Americans.
I well remember the days immediately
after the 9/11 attacks. I helped open the Senate to business the
next day. I said then, on September 12, 2001:
“If we abandon our democracy to battle
them, they win. . . . We will maintain our democracy, and with
justice, we will use our strength. We will not lose our commitment
to the rule of law, no matter how much the provocation, because that
rule of law has protected us throughout the centuries. It has
created our democracy. It has made us what we are in history. We
are a just and good Nation.”
I joined with others, Republican and
Democrats, and we engaged in round-the-clock efforts over the next
months in connection with what came to be the USA PATRIOT Act.
During those days the Bush Administration never asked us for this
surveillance authority or to amend the Foreign Intelligence
Surveillance Act to accommodate such a program.
Just as we cannot allow ourselves to
be lulled into a sense of false comfort when it comes to our
national security, we cannot allow ourselves to be lulled into a
blind trust regarding our freedoms and rights. The Framers built
checks and balances into our system specifically to counter such
abuses and undue assertions of power. We must remain vigilant on
all fronts or we stand to lose these rights forever. Once lost or
eroded, liberty is difficult if not impossible to restore. The Bush
Administration’s after-the-fact claims about the breadth of the
Authorization to Use Military Force -- as recently as this week, in
a document prepared at the White House’s behest by the Department of
Justice -- are the latest in a long line of manipulations of the
law. We have also seen this type of overreaching in that same
Justice Department office’s twisted interpretation of the torture
statute, an analysis that had to be withdrawn; with the detention of
suspects without charges and denial of access to counsel; and with
the misapplication of the material witness statute as a sort of
general preventive detention law. Such abuses serve to harm our
national security as well as our civil liberties.
In addition, the press reports that
the Pentagon maintains secret databases containing information on a
wide cross-section of ordinary Americans, and that the FBI is
monitoring law-abiding citizens in the exercise of their First
Amendment freedoms. When I worked with Senator Wyden and others in
2003 to stop Admiral Poindexter’s Total Information Awareness
program, an effort designed to datamine information on Americans –
and we meant it. And when I added a reporting requirement on
Carnivore, the FBI’s email monitoring program, to the Department of
Justice Authorizations law in 2002, we meant it. We demanded that
Congress be kept informed and that any such program not proceed
without congressional authorization.
The New York Times reported
that after September 11, 2001, when former Attorney General John
Ashcroft loosened restrictions on the FBI to permit it to monitor
Web sites, mosques, and other public entities, “the FBI has used
that authority to investigate not only groups with suspected ties to
foreign terrorists, but also protest groups suspected of having
links to violent or disruptive activities.” When I learned of such
efforts and that they reportedly included monitoring Quakers in
Florida and possibly Vermont, I wrote to the Secretary of Defense
demanding an answer. That was a month ago. So far he has refused
to provide that answer.
Now we have learned that President
Bush has, for more than four years, secretly allowed the warrantless
wiretapping of Americans inside the United States. And we read in
the press that sources at the FBI say that much of what was
forwarded to them to investigate was worthless and led to dead
ends. That is a dangerous diversion of our investigative resources
away from those who pose real threats, while precious time and
effort is devoted to looking into the lives of law-abiding
Americans.
The United States Supreme Court has
consistently held for nearly 40 years, since its landmark decision
in Katz v. United States, that the monitoring and recording
of private conversations constitutes a “search and seizure” within
the meaning of the Fourth Amendment. Congress enacted the
Foreign Intelligence Surveillance Act of 1978 (FISA) to provide a
legal mechanism for the government to engage in electronic
surveillance of Americans in connection with intelligence
gathering. The Foreign Intelligence Surveillance Act, along with
the criminal wiretap authority in title 18 of the United States
Code, together provide the exclusive means by which the Government
may intercept domestic electronic communications pursuant to the
rule of law.
The Foreign Intelligence Surveillance
Act has been amended over time, and it has been adjusted several
times since the 9/11 attacks. Indeed, much of the PATRIOT Act was
devoted to modifying FISA to make it easier to obtain FISA warrants.
But the PATRIOT Act did not amend FISA to give the
Government the authority to conduct warrantless surveillance of
American citizens.
If the Bush Administration believed
that the law was inadequate to deal with the threat of terrorism
within our boundaries, it should have come to Congress and sought to
change the law. It did not. Indeed, Attorney General Gonzales
admitted at a press conference on December 19, 2005, that the
Administration did not seek to amend FISA to authorize the NSA
spying program because it was advised that “it was not something we
could likely get.”
I chaired the Senate Judiciary
Committee in 2001 and 2002, when the President’s secret
eavesdropping program apparently began. I was not informed of the
program. I learned about it for the first time in the press last
month. I thank heaven and the Constitution that we still have a
free press.
The Bush Administration is now arguing
that when Congress authorized the use of force in September 2001 to
attack al Qaeda in Afghanistan, it authorized warrantless searches
and eavesdropping on American citizens. I voted for that
authorization, and I know that Congress did not sign a blank check.
The notion that Congress authorized warrantless surveillance in
the AUMF is utterly inconsistent with the Attorney General’s
admission that Congress was not asked for such authorization because
it was assumed that Congress would say no.
Former Senate Majority Leader Tom
Daschle, who helped negotiate the use of force resolution with the
White House, has confirmed that the subject of warrantless wiretaps
of American citizens never came up, that he did not and never would
have supported giving authority to the President for such wiretaps,
and that he is “confident that the 98 senators who voted in favor of
authorization of force against al Qaeda did not believe that they
were also voting for warrantless domestic surveillance.”
Senator Daschle also noted that the
Bush Administration sought to add language to the resolution that
would have explicitly authorized the use of force “in the United
States,” but Congress refused to grant the President such sweeping
power. Maybe that was this Administration’s covert way to seek the
authority to spy on Americans, but Congress did not grant any such
authority.
Spying on Americans without first
obtaining the requisite warrants is illegal, unnecessary and wrong.
No President can simply declare when he wishes to follow the law and
when he chooses not to, especially when it comes to the hard-won
rights of the American people.
The resolution I introduce today is
intended to help set the record straight. It is an important first
step toward restoring checks and balances between the co-equal
branches of Government. I urge all Senators to support it. I ask
consent that the Resolution be included in the Record following my
statement.
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