Opening Statement Of Sen. Patrick Leahy,
Ranking Democratic Member,
Committee On The Judiciary
Executive Meeting
March 2, 2006

Today is the day that Dubai Ports World’s transaction to take ownership of port operations in 6 U.S. ports and other assets is set to close.  It will close unless a British judge has delayed it.  The Bush-Cheney Administration approved the acquisition on January 17 and, as far as I can tell, it closes today without U.S. objection.  Thus, any action Congress should seek to take will likely have to be in retrospect with respect to this multibillion dollar transaction, if possible at all.  Last week, on behalf of Democratic Senators on this Committee, I wrote the Attorney General of the United States raising appropriate questions about his role and that of the Department of Justice in the Committee on Foreign Investment in the United States approval of the transaction.  Despite the important public interest in this matter, we have yet to receive a response or so much as an acknowledgement of our interest as the Justice Department’s Committee of oversight in the Senate.  I ask that a copy of that letter be made part of the record.

There are some striking parallels between the warrantless wiretapping program and approval of the takeover of most of the key port operations on the East Coast of the United States by a firm controlled by a foreign government with previous ties to Osama bin Ladin, to terrorist financing and to the proliferation of nuclear weapon technology by A.Q. Khan.   In both cases, this obsessively secretive and unilateralist Administration proceeded with action that it must have known would face strong bipartisan opposition and did so without informing Congress or the American people.  In both cases, the Administration did not follow processes mandated by specific federal statutes: the FISA Court warrant requirement in the wiretapping case, and the 45-day review requirement of the Exon-Florio law in the case of the port deal. 

This week the Committee held a hearing with an academic panel featuring commentators who have not witnessed or played any role in the program that they were discussing, and who knew little more than the very minimal facts about that program that the President has chosen to divulge.  I greatly appreciate their analysis, just as I appreciate the analysis of former President Jimmy Carter, former FBI Director William Sessions, conservative columnist George Will, and the many other scholars and former government officials who have concluded that the President’s program violates the Foreign Intelligence Surveillance Act and threatens the constitutional separation of powers.  But Tuesday’s hearing was no substitute for the vigorous and forceful oversight this Congress owes the American people.  I commend Chairman Specter for beginning this Committee’s investigation into the President’s program of domestic spying into emails and telephone calls of Americans without a judge’s approval.  The Chairman and I have a long history of conducting vigorous bipartisan oversight investigations.  If the Senate is to serve its constitutional role as a real check on the Executive, real oversight is essential.  The February 6 hearing and yesterday’s can only be the beginning of the process. 

Promptly after the February 6 hearing, the eight Democratic Members of the Committee forwarded written follow-up questions to the Attorney General, including fewer than three dozen that were prioritized for prompt answer before this week’s hearing.  I spoke to this matter on the Senate floor and urged the Bush-Cheney Administration to come clean with us and the American people.  Sadly, they have not responded.  The Attorney General ignored our prioritizing a limited number of questions and has provided no answer.

Instead, on Tuesday, more than three weeks after the hearing, he sent the Chairman an extraordinary letter seeking to modify his February 6 testimony.  That letter raises many questions, both factually, and also going to the credibility of the testimony itself.  Of course, at the February 6 hearing Senator Feingold confronted the Attorney General with what appeared to be misrepresentations from his January 2001 testimony during his confirmation hearing.  I expect that his letter on Tuesday was an attempt to provide some defense to a charge that he misled the Committee in his testimony on February 6.  I ask that a copy of his letter be made part of the record. 

He sought to add qualifiers and hedge already vague answers about the shifting legal analysis for the President’s domestic spying program without judicial approval and about the scope of activities undertaken secretly based on his expansive interpretation of inherent powers of the unitary executive not based on statutory authorities.

At the outset of my questioning at our February hearing, I asked the Attorney General when the Bush-Cheney Administration came to the conclusion that the congressional resolution authorizing the use of military force against al Qaeda also authorized warrantless wiretapping of Americans inside the United States.  He never directly answered my question.  Now, in his February 28 letter to Chairman Specter, he finally admits what I suspected all along.  This was not the underlying intent of the Authorization for the Use of Military Force that we passed on September 14.  That was to authorize the Commander in Chief to use our Armed Forces against al Qaeda and Osama bin Laden in Afghanistan.  He knows that, he was the White House counsel at that time.  Instead, after dodging months of my inquiries, he now concedes in his letter to Chairman Specter that “the Department’s legal analysis has evolved over time.”  Thus, even they did not rely on the Authorization for Use of Military Force to justify the spying program when it began in 2001.  Its use is an after-thought, after-the-fact rationalizing.

We still need direct answers to our questions and the documents that we requested back in January in advance of the February 6 hearing.   

I ask that my letter responding to the Attorney General yesterday be made part of the record and that the pre-hearing letter request be included, as well.

Most disturbing is that the Attorney General’s new letter raises the implication that that are other secret activities impinging on the liberties and rights of Americans being conducted by the Bush-Cheney Administration.  We need to know what other activities affecting Americans’ rights the Attorney General views as justified by the Authorization for the Use of Military Force and the inherent power of the President.  He concedes that the Department of Justice has conducted additional legal rationalizations and “analysis beyond the January 19^th paper” but has refused to produce the binding legal opinions of the Government or inform us what those programs involve.

I know that this Committee has a full agenda but these are fundamental matters and we need to get to the bottom of them. That is why I raise them.  I look forward to working on these matters with the Chairman.

In addition, we all want to move forward this spring with hearings and action to reauthorize the Voting Rights Act.  We should complete that important action this year.  Chairman Sensenbrenner in the House has long been involved and interested in this matter.  It would be a fitting part of his legacy as the House Chairman if we could work together to accomplish that reauthorization before the Congress adjourns this year.  I hope that we can begin those hearings before the April recess.

I understand from the Chairman that he intends to make immigration the focus of our work this week and in the weeks ahead.  I know that Senators Kennedy and Feinstein and others have extensive experience and strong views on these matters.  A number of us have introduced immigration initiatives.  But some of us are playing a bit of catch up on the Chairman’s mark and his substitute to his mark.  I look forward to our working together in the weeks ahead.

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