Congressional Record: September 13, 2006 (Senate)
Page S9502-S9503




           SENATE SELECT COMMITTEE ON INTELLIGENCE OVERSIGHT

  Mr. FEINGOLD. Mr. President, I join the vice chairman of the
Intelligence Committee in expressing my concerns about the Committee's
inability to conduct oversight of the President's illegal warrantless
wiretapping program. Unfortunately, the administration's continued
defiance of Congress is simply the latest in a series of efforts to
hide its illegal activities and obscure the true extent of its power
grab.
  Let us not forget how we got to this point. For 4 years, the
administration conducted a plainly illegal program, eavesdropping on
Americans on American soil without the warrants required under the
Foreign Intelligence Surveillance Act, or FISA. During this time, the
administration refused to inform the full congressional intelligence
committees, in clear violation of the National Security Act.
  Then, late last year, the program was revealed in the press. Rather
than admit that it had broken the law and explain why it had done so,
the administration used the occasion to embark on a coordinated and
misleading public relations campaign. In speeches and press
conferences, administration officials repeatedly asserted that domestic
eavesdropping without a warrant was necessary to conduct surveillance
of terrorist suspects, and it suggested that those committed to the
rule of law were unconcerned about the terrorist threat.
  Even the title the administration has bestowed upon its illegal
behavior--the Terrorist Surveillance Program--is misleading. We already
have a ``terrorist surveillance program.'' It is called FISA. It
permits the surveillance of terrorist suspects in the United States,
with the approval of a secret court, and it has been the law of the
land for nearly 30 years.
  Let us also not forget the administration's illegal defiance of
congressional oversight. For 4\1/2\ years, including several months
after the warrantless wiretapping program was revealed in the press,
the administration violated the National Security Act by refusing to
brief the congressional intelligence committees on the program. The
administration began the briefings required by law only when it became
clear that its defiance might complicate the nomination of General
Hayden, who, as the then-Director of the NSA, implemented the program
and had been nominated as the new Director of the CIA. Despite months
of public discussion about the program by administration officials, the
majority of the members of the Senate Intelligence Committee were
briefed about the program for the first time only on the eve of General
Hayden's confirmation hearing in May.
  Those of us who hoped that this belated briefing marked a change in
attitude--and a recognition of the administration's legal
responsibilities--were quickly disappointed. That is why, later that
month, the full Senate Intelligence Committee called on the
administration to work with the committee so that we could conduct
ongoing, thorough oversight over the operational, legal and budgetary
aspects of the program. The cooperation requested by the Committee has
not happened, however. And, as the vice chairman has pointed out, the
administration continues to refuse to provide the committee with
critical documents and information necessary to review the program.
  The congressional intelligence committees review highly sensitive
classified intelligence programs every day. That is their job. The vast
majority of those programs have never been publicly disclosed. Yet the
warrantless wiretapping program--which has been the subject of
speeches, press conferences and public testimony by administration
officials, making it the most widely examined, the most public program
in NSA's history--is the one program the administration still refuses
to explain fully to the congressional intelligence committees.
  The vice chairman of the committee has described some of the
materials that the administration has thus far refused to provide the
committee--Presidential orders authorizing the program, legal reviews
and opinions relating to the program, and procedures and guidelines on
the use of information obtained through the program. All of these
materials relate to the legality of the program. It is difficult to
avoid the conclusion that the administration has stonewalled the
committee's efforts to conduct oversight of this program not because
the program is uniquely sensitive, but because it is illegal.
  While the Intelligence Committee has been unable to conduct oversight
of the warrantless surveillance program, the Judiciary Committee, which
this morning reported out a bill that seeks to legalize the program,
has been denied access to any information about the program. Attorney
General Gonzales has provided testimony to the Judiciary Committee, but
that testimony has been limited to a careful repetition of only what
the President has already publicly acknowledged. As a result, the
Judiciary Committee does not have access to information it needed
before it should even have begun considering legislation, including
many of the legal documents denied the Intelligence Committee. The
Judiciary Committee was left to legislate in the dark, with many
members blindly seeking to legalize illegal behavior without even an
understanding of whether those changes are actually necessary.
  And now, we face the prospect that the full Senate may consider
legislation related to the program. It is bad enough to have a
committee legislate in the dark. But having the entire Senate debate
legislation when just a few Senators--those on the Intelligence

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Committee--have any information at all on the subject of the
legislation only makes things worse.
  In the rush to rubberstamp the administration's unconstitutional
power grab, Congress could end up turning the legislative process on
its head. As an institution, and as elected representatives of the
American people, it is our responsibility to make sure the President
complies with the law. Instead, Republican leaders are rushing to make
sure the law complies with the President. That is far from the ringing
affirmation of the rule of law that we should expect from Congress in
response to the administration's law-breaking.
  If Congress and the administration are going to take seriously their
respective responsibilities, four things must happen. First, the
congressional intelligence committees must demand that the
administration provide documents and information related to the
warrantless surveillance program and insist on the same kind of
thorough oversight to which other intelligence programs are subject.
The National Security Act requires that the committees be kept fully
and currently informed of all intelligence programs. It is long past
time for the administration to respect the spirit of that law.
  Second, the administration must provide the information the Judiciary
Committee needs about the program so that it can reconsider the
uninformed and dangerous legislation reported out this morning. That
does not mean the Judiciary Committee has to see operational details
about the program. It does mean it needs to understand the basics of
the program and the administration's contemporaneous legal
justifications throughout the duration of the program. Certainly, the
Judiciary Committee should not even have begun to consider expanding
FISA before it received an explanation from the administration as to
why it was unwilling to comply with current law. The administration has
never provided that explanation because, in my view, it cannot. From
what I have seen as a member of the Intelligence Committee, the
surveillance that the administration says is necessary to protect this
country can be accommodated without violating FISA.
  We can listen in on terrorist suspects without surrendering the basic
principle of individualized warrants. We can be secure without having
to accept unchecked executive power. We can effectively fight terrorism
without sacrificing the rights and freedoms that make this country the
greatest beacon for individual liberty in the history of the world.
  The mere assertion by the President that FISA no longer applies
cannot be the basis for eradicating 30 years of law and jurisprudence.
Congress should demand answers before deciding whether and how to amend
FISA.
  This leads me to my third point--that the Judiciary Committee should
carefully and thoroughly consider any specific proposals for improving
the FISA law, closely examining whether they are justified. Despite the
action this morning, we have not done that yet. Recent testimony by
Generals Alexander and Hayden provided some possible suggestions as to
ways that FISA might be modernized--the kinds of suggestions that
should have been made years ago. Congress should encourage more such
exchanges, and should consider major revisions to FISA only after it
can fully assess the need for such legislation as well as its ultimate
impact. By rushing to legitimize and legalize domestic surveillance
that does not comply with the FISA law, Congress only short-circuits
this process.
  And fourth, regardless of current oversight and legislative efforts,
the President needs to be held accountable for breaking the law. His
domestic warrantless wiretapping program is illegal. The legal
arguments put forward to justify the program are as dubious today as
they were when they were made last December, particularly in light of
the recent Supreme Court decision in Hamdan. The President's failure to
inform the full congressional intelligence committees about the program
for years was also illegal, and his subsequent decision to provide only
limited information about the program to the intelligence committees at
the least violates the spirit of the National Security Act. And the
President continues, to this day, to mislead the country about
terrorist surveillance and FISA. For these reasons, Congress should
censure the President. The challenging and crucial work of defending
our Nation against a determined enemy demands a return to the rule of
law. We are stronger as a law-abiding country, not weaker.
  We should be working together to protect America. The President's
power grab has been a long and costly distraction. It has undermined a
preexisting consensus about how to defend our country and its
democratic traditions. It has resulted in a completely unnecessary
stand-off between the executive branch and Congress. And it has
resulted in an administration publicly making the untenable argument
that the laws passed by Congress can be ignored.
  None of this was inevitable. And it can all be resolved, if only we
take a step back and remember the principles on which our system of
government was based. The balance of powers enshrined in the
Constitution and the freedoms contained in the Bill of Rights are not
impediments to our national security. They are our strength. We can and
must fight terrorism aggressively without undermining the rule of law
on which this country stands.

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