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Myth
vs. Reality on Bush's Warrantless Wiretapping Program
A Fact Check on
a Presidential Crime
By Sen. RUSSELL FEINGOLD
Myth: Congress needs to hold
hearings on the NSA wiretapping program before a measure like
censure is discussed.
Fact: The Senate Judiciary Committee has held multiple hearings
on the issue despite the refusal of the administration to cooperate.
Further hearings and investigation are necessary but those hearings
will not change the fact that the President broke the law.
Congress has held multiple
hearings on the wiretapping program and the administration has
not been forthcoming with information about the program. The
Senate Judiciary Committee has held three hearings on the issue
on February 6th, February 28th, and March 28th, 2006.
The administration has provided only one official to testify
before the Judiciary Committee, Attorney General Alberto Gonzales
on February 6th. Under questioning, the Attorney General could
not cite a single example of a President, other than George W.
Bush, who has authorized wiretapping on American soil outside
of FISA since FISA was enacted. Nor could he cite a single court
decision let alone a Supreme Court decision that
holds that the President has the authority to bypass FISA and
authorize warrantless wiretaps. Congress does need to hold more
hearings to better understand the facts of how the program is
conducted but it does not need any more hearings to know that
the President broke the law.
Myth: The Senate Intelligence Committee is performing
oversight of the warrantless wiretapping program, and that is
sufficient.
Fact: The Senate Intelligence Committee has abdicated its
duty to be a check on the executive by refusing to fully investigate
the program.
On March 7th, the Senate Select
Committee on Intelligence declined to authorize an investigation
into the warrantless wiretapping program despite the fact that
the National Security Act of 1947 explicitly requires the President
to keep the congressional intelligence committees "fully
and currently informed of all intelligence activities."
A new subcommittee of the Intelligence Committee is looking
at the program, but this is not adequate oversight or consistent
with the National Security Act.
Myth: The law is unclear
about whether the President's wiretapping program is legal.
Fact: The law is clear that the criminal wiretap statute and
Foreign Intelligence Surveillance Act (FISA) are the only authority
for wiretapping individuals inside the United States. The few
details that the President has provided about his wiretapping
program show clearly that that he ignored these laws.
FISA states specifically that
the criminal wiretap statute and FISA "shall be the exclusive
means by which electronic surveillance . . . and the interception
of domestic wire, oral, and electronic communications may be
conducted." The President and his administration have
conceded that the program is conducted without getting the court
orders required by FISA.
Myth: Congress gave the
president the authority to wiretap Americans on American soil
without a court order when it voted to authorize the use of military
force in Afghanistan.
Fact: There is no language in the Authorization for the Use
of Military Force (AUMF) suggesting that it authorizes the President
to authorize warrantless wiretaps of Americans on American soil.
The President has argued that
Congress gave him authority to wiretap Americans on American
soil without a warrant when it passed the AUMF after September
11, 2001. There is no language in the resolution, and no evidence,
to suggest that it was intended to give the President authority
to order these warrantless wiretaps. Warrantless domestic surveillance
is not an "incident of war" akin to detaining an enemy
soldier on the battlefield as the Administration has argued.
In fact, Congress passed the Patriot Act just six weeks after
September 11 to expand the government's powers to conduct surveillance
of suspected terrorists and spies. Yet the Administration did
not ask for, nor did the Patriot Act include, any change to FISA's
requirement of judicial approval for wiretaps of Americans in
the United States. Indeed, Sen. Daschle has stated that the
Administration asked for language that would have authorized
"appropriate force in the United States" and that he
specifically rejected that request.
Myth: The Constitution
gives the President authority to wiretap Americans on American
soil without a court order even if it violates a statute.
Fact: FISA prohibits this kind of wiretapping program. Ever
time the Supreme Court has confronted a statute limiting the
Commander in Chief's authority, it has upheld the statute.
The President has extensive
authority when it comes to national security and foreign affairs,
but given the clear prohibition in FISA, that authority does
not include the power to wiretap American citizens on American
soil without a warrant. In the landmark 1952 Supreme Court case
Youngstown v Ohio, then Supreme Court Justice Robert Jackson
wrote that presidential authority is at its "lowest ebb"
when it is "incompatible with the expressed or implied will
of Congress."
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