Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee,
Hearing On “NSA III: War Time Executive Power And The FISA Court"
March 28, 2006
I thank the
Chairman for holding this hearing today. We desperately need some
answers to basic questions about the President’s decision to wiretap
Americans on American soil without court approval and without
attempting to comply with the Foreign Intelligence Surveillance
Act. More than three months and two Committee hearings after the
President was forced to acknowledge the program’s existence, this
Committee remains in the dark with regard to nearly every aspect of
the program. As Senator Specter succinctly put it recently, we are
still “flying blind on a great deal of this.”
We held our first
hearing on February 2 with Attorney General Gonzales. His testimony
was more obstructionist than enlightening. He flatly refused to
discuss anything beyond “those facts the President has publicly
confirmed, nothing more.” In other words, he refused to tell us
anything we did not already know.
The
Administration’s stonewalling has only gotten worse since then.
Three weeks later, the Attorney General wrote an extraordinary
letter to Chairman Specter, seeking to alter his live testimony –
mainly by making it even less responsive than it was. That letter
raised serious additional concerns about the scope of the
Administration’s domestic spying activities, its shifting legal
rationalizations, and the Attorney General’s own credibility.
For example, the
Attorney General’s letter suggests that the Administration is
operating other secret programs that invade the rights and liberties
of Americans. But it refuses to answer our questions regarding the
scope and the purported legal basis of those programs.
The Attorney
General’s letter admits that “the Department’s legal analysis has
evolved over time,” while once again refusing to answer the basic
factual question of when the Administration came up with its theory
that the congressional resolution authorizing military force against
al Qaeda also authorized warrantless domestic wiretapping of
Americans. I can only infer that the Administration’s AUMF theory
was concocted long after it decided to ignore FISA.
The AUMF says
nothing about FISA or about domestic wiretaps. And no members of
Congress I have spoken to understood themselves to be partially
repealing FISA’s warrant requirement when they voted for the AUMF.
So here, four years after the fact, we have an Administration that
purports to pride itself on “strict construction” claiming that,
unbeknownst to the Congress that passed it, the AUMF’s silence on
wiretaps overrides FISA’s express prohibition, including in wartime,
of warrantless domestic wiretaps. I agree with George Will who
wrote in a column last month that that after the fact
rationalization is both “risible” and “incoherent.”
To fulfill our
legislative function, we need to know what other invasions into
Americans’ rights and privacy the Administration believes we
authorized, and why. However, the Bush-Cheney Administration
continues to stonewall.
The Democratic
members of the Committee finally received a response late last
Friday to the priority questions we sent the Attorney General
following his appearance on February 6. I say we received a
“response” because saying we got “answers” would be an
exaggeration. What we got, with respect to virtually every
question, was some version of “we cannot [answer]” or “we are not
able to [answer]” or “we are not in a position [to answer]” or
simply, “it would be inappropriate for us [to answer].”
We held our
second hearing on the program on February 28. That hearing was an
academic panel discussion featuring scholars and former government
officials with a great deal of expertise in the law, but no
knowledge of the program that they were discussing. We had a good
discussion. But it was not oversight.
Nor is our
hearing today. Our witnesses are experts in the Foreign
Intelligence Surveillance Act, but they have no special knowledge of
the President’s program to wiretap Americans outside of that Act.
They cannot tell us any more than the very little that we already
know about what this Administration has been doing for the last four
years under its theory of limitless Executive power.
We are stuck at
an impasse, lacking information or cooperation from an
Administration that refuses to submit to real congressional
oversight. This is, of course, nothing new from an obsessively
secretive Administration that has classified historical documents
for no reason, conducted energy policy and attempted to outsource
port security behind closed doors, routinely blocked investigations
and audits, repeatedly harassed whistleblowers, and dismissively
refused to cooperate with congressional oversight for more than five
years. This Administration has a paranoid aversion to openness and
accountability that will not be overcome by gentle persuasion.
The
Administration tells us, we won’t tell you enough to do meaningful
oversight over what we’re doing, so just trust us. But how can we
trust this Administration, when every day brings more evidence of
its incompetence, including yesterday’s revelation that our borders
are not even secure from the simplest scheme to smuggle in a dirty
bomb?
So how can we
move forward to protect the security and the rights and freedoms of
the American people? I believe that we in Congress need to do three
things.
First, if the
rule of law means anything, we must insist on real oversight and
real accountability. The Chairman said at our last hearing, “we
will struggle to try to find out what the program is.” With the
greatest of respect, that need not be a “struggle.” We have the
constitutional right to compel information from this Administration
by subpoena. During the last two years of the Clinton
Administration, this Committee approved the issuance of more than a
dozen subpoenas to the Department of Justice and former DOJ
officials, both for documents, including legal memoranda, and for
live testimony. The question is not whether we can find out
the extent of the Administration’s secret spying on the American
people. The question is whether the Republican majority of this
Congress has the political will to do so.
Second, if there
is a real need for legislation that eases existing restrictions
under FISA, we should of course pass it, as we have done on a
bipartisan basis with numerous powers requested by this
Administration over the past five years. However, we should not
rush to give the Administration new powers it has not deigned to
request, based on concerns it has not articulated.
Finally, in
discussing legislation, we should collectively draw a line in the
sand. No new powers should be given to this Administration until we
secure a firm assurance that it will faithfully execute and abide by
the law as written by Congress. We have spent many hours of the
people’s time in this Congress, and been subjected to extreme
partisan political pressure, responding to the Administration’s
repeated demands for urgent amendments to FISA, the PATRIOT Act and
other laws that limit Americans’ civil liberties for the sake of
security. Yet, as George Will pointed out, all those debates have
been a meaningless charade if the Administration’s “monarchical”
assertions of essentially unfettered presidential power to conduct
the war on terror are taken seriously. If, as the Administration
contends, the President can pick and choose which laws he will or
will not follow, what is the point of our amending FISA?
We are not here
to play charades. We are here to legislate the law of the land. So
any further legislation that we enact in this area should, at a
minimum, include express provisions that require the President to
stop equivocating with vague, expansive and dangerous theories of
inherent powers, and to accept that he is fully bound by the
legislation as written. We must put an end to police state powers
operating outside the law.
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