Congressional Record: March 13, 2006 (Senate)
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        [Introduction of Resolution of Censure]

  Mr. SARBANES.[...]
  Mr. President, I know Senator Feingold is here on the floor and would 
like to be recognized for up to 25 minutes.
  The PRESIDING OFFICER. The majority leader.
  Mr. SARBANES. I ask unanimous consent for that.
  The PRESIDING OFFICER. Is there objection?
  Mr. FRIST. Reserving the right to object, I have a short statement to 
make, and then I will be happy to yield to the Senator from Wisconsin 
or have the ranking member yield to him.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
  Mr. FRIST. I object.
  The PRESIDING OFFICER. Objection is heard. The majority leader.
  Mr. FRIST. Mr. President, I will be very brief. I am obviously 
disturbed--I know what the Senator from Wisconsin will be presenting 
shortly. I expect him to offer a resolution to censure the President of 
the United States--he made those intentions clear yesterday, and I 
expect him to do that shortly--a censure of the President for defending 
the United States of America and protecting our homeland security.
  As I implied in some statements I made publicly yesterday, I do 
believe this is a political stunt, a political stunt that is addressed 
at attacking the President of the United States of America when we are 
at war, when the President is leading us with a program that is lawful, 
that is constitutional, and that is vital to the safety and security of 
the American people. It is being offered at a time--with really an 
attack on what the President is doing--at the same time we have 
terrorists right now intending to attack Western civilization and, 
indeed, the people of our homeland.
  With that being my feeling and the intention being so apparent to me, 
I do want to make it clear that if that is the case, and if this 
resolution is offered tonight, we will be ready to vote on that censure 
resolution tonight.
  That being the case, then I will offer a unanimous consent request at 
this juncture.
  Mr. President, I ask unanimous consent that immediately after the 
5:30 vote this evening, the Senate proceed to a vote on the resolution 
of censure to be submitted by the Senator from Wisconsin, without 
further intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SARBANES. Mr. President, I understand this has not been discussed 
with the minority leader, this proposal for a vote, and I would 
therefore object.
  The PRESIDING OFFICER. Objection is heard. The unanimous consent 
request is not agreed to.
  Mr. SARBANES. I would respectfully request of the leader that he 
should have a discussion with the minority leader before seeking to set 
the agenda.
  Mr. FRIST. Mr. President, I then ask unanimous consent that 
immediately following the budget vote scheduled for tomorrow afternoon, 
the Senate proceed to the consideration and an immediate vote on the 
resolution of censure that will be submitted by the Senator from 
Wisconsin without any further intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SARBANES. Mr. President, I object for the same reason. I think 
the majority leader should have a responsible discussion with the 
minority leader before setting the agenda of the Senate. It should be 
an elemental courtesy in the conduct of the Senate's business.
  Mr. FRIST. Mr. President, I heard the objection. I just wanted to 
discuss our willingness on what is an important issue. We are talking 
about the censure of the President of the United States, and we are 
ready to vote on that this afternoon.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, does the Senator from Maryland yield me 
  The PRESIDING OFFICER. Who yields time?
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be 
recognized for up to 25 minutes as in morning business.
  The PRESIDING OFFICER. Is there objection?
  Mr. SARBANES. I understand, Mr. President, this is off the 
resolution; is that right?
  The PRESIDING OFFICER. The Senator from Wisconsin asked to speak as 
in morning business. Is there objection?
  Mr. SARBANES. I think an agreement was reached that it would be off 
the resolution and count toward the time on the resolution.
  The PRESIDING OFFICER. Is there objection to that stipulation?
  Mr. FRIST. Mr. President, it is our understanding that 25 minutes 
would count on the underlying bill.
  Mr. REID. Reserving the right to object, is there a unanimous consent 
request pending?
  Mr. SARBANES. Only that the 25 minutes that Senator Feingold is going 
to use will come off the resolution.
  Mr. REID. I object.
  The PRESIDING OFFICER. Objection is heard.
  Who yields time?
  Mr. FEINGOLD. I understand I have been recognized for 25 minutes as 
in morning business; is that correct?
  The PRESIDING OFFICER. An objection has been heard to the unanimous 
consent request of the Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thought that was the second unanimous 
consent. I simply asked originally for 25 minutes in morning business, 
and I believe that was approved.
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Wisconsin to speak as in morning business for 25 minutes?
  Mr. FRIST. Mr. President, reserving the right to object, and I will 
object, we are perfectly willing to have the Senator speak but have the 
25 minutes count to the underlying bill.
  The PRESIDING OFFICER. There is an objection.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, what we need here in the Senate is more 
debate, not less debate. I certainly have no problem with the Senator 
from Wisconsin speaking for as long as he wishes, and if the managers 
of the bill wish to yield time off the resolution to him, it is fine 
with me. I do want to say this, however: For the majority leader--and 
he has the right, I don't dispute that at all--to come to the floor 
without notice to his counterpart and offer a unanimous consent request 
is something that I never tried to do. I always tried to give him the 
benefit of my telling him what I plan to do, and I think that is the 
right thing to do. I am sure

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there was nothing willful in what he did; I am sure it was just an 
  To try to limit debate on this most important matter that Senator 
Feingold is going to put before the Senate is not appropriate. I have 
no problem with arranging a time to finish debate on the Feingold 
proposal, but it seems to me what is happening in the Senate is there 
is no time to debate much. And we are under a statute, and that is why 
we are here today with the budget resolution, with 50 hours on this.
  But if we look at what we have facing us in the future, in the 
immediate future, the Secretary of the Treasury has asked us to 
increase the national debt from $8.2 trillion to $9 trillion. Now, if 
there were ever an opportunity for the American people to hear the 
differences between the two parties, I think it would be on that 
debate. Or, even if that weren't the case, something where we are being 
asked to increase the national debt by $800 billion, shouldn't there be 
a debate on that?
  To show our willingness to cooperate on something this important, I 
agreed with the distinguished majority leader that we would have 5 
hours of debate on the national debt and three amendments that we would 
offer. We would have a half hour on each of ours, an hour and a half 
time is all we wanted. When we are going to be asked to increase the 
national debt by approximately $800 billion, I think it is fair that we 
could have a few hours to talk about that.
  But it appears at this stage that is not going to happen. It appears 
there will be the 50 hours on this matter that is now before the Senate 
which will be completed sometime Thursday, and there will be a mad rush 
to get out of here for the week break that we have. Of course, offering 
amendments after the matter is brought to the attention of the Senate, 
I mean we can't do that because we may shut down the Government. And 
that is why the majority has waited so long, even though Secretary Snow 
advised us in December that there was going to be a problem with 
the national debt ceiling.
  So I have no problem with the Senator from Wisconsin being yielded 
time off the resolution by the distinguished ranking member of our 
Banking Committee who is now managing this bill for Senator Conrad, but 
I want the record to be spread with the fact that this is an issue that 
deserves more debate, not less debate. I don't care if the time is used 
off the budget resolution.
  So I would ask the distinguished Presiding Officer to read, or 
recall, at least, the unanimous consent request that was made by the 
distinguished majority leader.
  The PRESIDING OFFICER. The unanimous consent request of the majority 
  Mr. REID. Yes. It was my understanding the request was that the 
Senator from----
  The PRESIDING OFFICER. The Senator from Wisconsin would be recognized 
for 25 minutes as in morning business.
  Mr. REID. But the time would be used off the budget resolution.
  The PRESIDING OFFICER. That is correct.
  Mr. REID. I have no objection.
  The PRESIDING OFFICER. Is there objection?
  Mr. SPECTER. Mr. President, reserving the right to object, I yield 
first to the majority leader to comment.
  Mr. FRIST. Mr. President, a lot is happening very quickly now. In a 
very few minutes, we are going to get to the Senator from Wisconsin who 
has appropriately requested 25 minutes, and the unanimous consent 
request will be that the time would come off the bill and it will be as 
in morning business.
  Just to clarify, he has said his intentions representing the other 
side of the aisle to offer a resolution to censure the President of the 
United States for a program that I have said and will restate is a 
lawful program, is a program that is constitutional, and is a program 
that is vital to the safety and security of the American people. My 
response to that unanimous consent request was if that is the case and 
if that is the position of the Democratic Party, that we are ready to 
vote at 5:30 or after our 5:30 vote today. That unanimous consent 
request was objected to by the other side of the aisle.
  Then the second unanimous consent request that I propounded was that 
we would vote after a series of stacked votes tomorrow on the 
resolution to censure. There was an objection from the other side of 
the aisle.
  When we are talking about censure of the President of the United 
States, at a time of war when this President is out defending the 
American people with a very good, lawful, constitutional program, it is 
serious business. And if it is an issue that the other side of the 
aisle wants to debate or debate through the night, I guess we are 
willing to do that as well. But the censure of the President is 
important, and if they want to make an issue of it, we are willing to 
do just that.
  I have no objection to the unanimous consent request that has been 
  Mr. REID. There is no unanimous consent request now pending; is that 
  The PRESIDING OFFICER. No. You reserved the right to object, but 
there is only one pending before the Senate at this time.
  Mr. SPECTER. Mr. President, I ask that the unanimous consent request 
giving Senator Feingold 25 minutes be expanded to give this Senator 25 
minutes, with the time running off the bill.
  Mr. REID. So now we have Senator Feingold speaking for 25 minutes, 
that would be yielded off the budget resolution, and Senator Specter 
speaking for 25 minutes, that being yielded off the resolution; is that 
  The PRESIDING OFFICER. That is the pending request. Is there 
  Without objection, it is so ordered.
  Mr. REID. Mr. President, and there is no other unanimous consent 
request before the Senate at this time?
  The PRESIDING OFFICER. The Senator is correct.
  The Senator from Wisconsin.

                         Resolution of Censure

  Mr. FEINGOLD. Mr. President, when the President of the United States 
breaks the law, he must be held accountable. That is why today I am 
submitting a resolution to censure President George W. Bush.
  The President authorized an illegal program to spy on American 
citizens on American soil, and then misled Congress and the public----
  Mr. SPECTER. Mr. President, will the Senator from Wisconsin yield for 
a question? May we have a copy of your resolution?
  Mr. FEINGOLD. I will be introducing it at the conclusion of my 
remarks. I will be happy to supply the Senator with a copy of the 
resolution, but I do intend to introduce it at the conclusion of my 
  Mr. SPECTER. Mr. President, if the Senator from Wisconsin would let 
this Senator have a copy of it now.
  Mr. FEINGOLD. Mr. President, I just said I would be happy to give the 
Senator a copy of the resolution right now.
  Mr. President, I ask unanimous consent that my time be started over 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. I thank the Chair.
  Mr. President, when the President of the United States breaks the 
law, he must be held accountable. That is why today I am submitting a 
resolution to censure President George W. Bush. The President 
authorized an illegal program to spy on American citizens on American 
soil, and then misled the Congress and the public about the existence 
and the legality of that program. It is up to this body to reaffirm the 
rule of law by condemning the President's action.
  All of us in this body took an oath to support and defend the 
Constitution of the United States and bear true allegiance to the same. 
Fulfilling that oath requires us to speak clearly and forcefully when 
the President violates the law. This resolution allows us to send a 
clear message that the President's conduct was wrong.
  And we must do that. The President's actions demand a formal judgment 
from Congress.
  At moments like this in our history, we are reminded why the Founders 
balanced the powers of the different branches of Government so 
carefully in the Constitution. At the very heart of our system of 
government lies the recognition that some leaders will do wrong and 
that others in the Government will then bear the responsibility to do 
  This President has done wrong. This body can do right by condemning 

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conduct and showing the people of this Nation that his actions will not 
be allowed to stand unchallenged.
  To date, Members of Congress have responded in very different ways to 
the President's conduct. Some are responding by defending his conduct, 
ceding him the power he claims, and even seeking to grant him expanded 
statutory authorization powers to make his conduct legal. While we know 
he is breaking the law, we do not know details of what the President 
has authorized or whether there is any need to change the law to allow 
it. Yet some want to give him carte blanche to continue his illegal 
conduct. To approve the President's actions now without demanding a 
full inquiry into this program, a detailed explanation for why the 
President authorized it, and accountability for his illegal actions 
would be irresponsible. It would be to abandon the duty of the 
legislative branch under our constitutional system of separation of 
powers while the President recklessly grabs for power and ignores the 
rule of law.
  Others in Congress have taken important steps to check the President. 
Senator Specter has held hearings on the wiretapping program in the 
Judiciary Committee. He has even suggested that Congress may need to 
use the power of the purse to get some answers out of the 
administration. Senator Byrd has proposed that Congress establish an 
independent commission to investigate this program.
  As we move forward, Congress will need to consider a range of 
possible actions, including investigations, independent commissions, 
legislation, or even impeachment. But at a minimum Congress should 
censure a President who has so plainly broken the law.
  Mr. President, our Founders anticipated that these kinds of abuses 
would occur. Federalist Paper No. 51 speaks of the Constitution's 
system of checks and balances. It says:

       It may be a reflection on human nature, that such devices 
     should be necessary to control the abuses of government. But 
     what is government itself, but the greatest of all 
     reflections of human nature? If men were angels, no 
     government would be necessary. If angels were to govern men, 
     neither external nor internal controls on government would be 
     necessary. In framing a government which is to be 
     administered by men over men, the great difficulty lies in 
     this: You must first enable the government to control the 
     governed; and in the next place oblige it to control itself.

  We are faced with an executive branch that places itself above the 
law. The Founders understood that the branches must check each other to 
control abuses of Government power. The President's actions are such an 
abuse. His actions must be checked and he should be censured.
  This President exploited the climate of anxiety after September 11, 
2001, both to push for overly intrusive powers in the PATRIOT Act and 
to take us into a war in Iraq that has been a tragic diversion from the 
critical fight against al-Qaida and its affiliates. In both of these 
instances, however, Congress gave its approval to the President's 
action, however mistaken the approval may have been.
  Here is the difference, Mr. President: This was not the case with the 
illegal domestic wiretapping program authorized by the President 
shortly after September 11. The President violated the law, ignored the 
Constitution and the other two branches of Government, and disregarded 
the rights and freedoms upon which our country was founded. No one 
questions--no one questions--whether the Government should wiretap 
suspected terrorists. Of course we should and we can under current law. 
If there were a demonstrated need to change the law, of course, 
Congress should consider that step. But instead, the President is 
refusing to follow the law while offering the flimsiest of arguments to 
justify his misconduct. He must be held accountable for his actions.
  The facts are pretty straightforward. Congress passed the Foreign 
Intelligence Surveillance Act, known as FISA, nearly 30 years ago to 
ensure that as we wiretap suspected terrorists and spies, we also 
protect innocent Americans from unjustified Government intrusion. FISA 
makes it a crime to wiretap Americans on U.S. soil without the 
requisite warrants, and the President has ordered warrantless wiretaps 
of Americans on U.S. soil. So it is pretty simple. The President has 
broken that law and that alone is unacceptable.
  But the President did much more than that. Not only did the President 
break the law, he also actively misled Congress and the American people 
about his actions and then, when the program was made public, about the 
legality of the NSA program. He has fundamentally violated the trust of 
the American people. The President's own words show just how seriously 
he has violated that trust.
  We now know that the NSA wiretapping program began not long after 
September 11. Before the existence of this program was revealed, the 
President went out of his way, he went out of his way in several 
speeches to assure the public that the Government was getting court 
orders to wiretap Americans in the United States, something he now 
admits was not the case.
  On April 20, 2004, for example, the President told an audience in 
Buffalo, ``Any time you hear the United States government talking about 
wiretaps it requires a court order. Nothing has changed, by the way.''
  In fact, a lot had changed. But the President wasn't upfront with the 
American people. Just months later, on July 14, 2004, in my own State 
of Wisconsin, the President said, ``Any action that takes place by law 
enforcement requires a court order. In other words, the government 
can't move on wiretaps or roving wiretaps without getting a court 
  And then, Mr. President, last summer on June 9, 2005, the President 
spoke in Columbus, OH, and again insisted that his administration was 
abiding by the laws governing wiretaps. ``Law enforcement officers need 
a federal judge's permission to wiretap a foreign terrorist's phone, a 
federal judge's permission to search his property. Officers must meet 
strict standards to use any of these tools. And these standards are 
fully consistent with the Constitution of the U.S.''
  Now, Mr. President, in all of these cases the President knew that he 
wasn't telling the complete story. But engaged in tough political 
battle during the Presidential campaign and later over the PATRIOT Act 
reauthorization, he wanted to convince the public that a system of 
checks and balances was in place to protect innocent people from 
Government snooping. He knew when he gave those reassurances that he 
had authorized the NSA to bypass the very system of checks and balances 
that he was using as a shield against criticisms of the PATRIOT Act and 
his administration's performance.
  This conduct is unacceptable. The President has a duty to play it 
straight with the American people. But for political purposes, he just 
ignored that duty.
  After a New York Times story exposed the NSA program in December of 
last year, the White House launched an intensive effort to mislead the 
American people yet again. No one would come to testify before Congress 
until February, but the President's surrogates held press conferences 
and made speeches to try to convince the public that he had acted 
  Most troubling of all, the President himself participated in this 
disinformation campaign. In the State of the Union Address he implied 
that the program was necessary because otherwise, the Government would 
be unable to wiretap terrorists at all.
  Now, Mr. President, that is simply untrue. In fact, nothing could be 
further from the truth. You don't need a warrant to wiretap terrorists 
overseas, period. It is clear. You do need a warrant to wiretap 
Americans on American soil, and Congress passed FISA specifically to 
lay out the rule for these types of domestic wiretaps.
  FISA created a secret court made up of judges who develop national 
security expertise to issue warrants for surveillance of suspected 
terrorists and spies. These are the judges from whom the Bush 
administration has obtained thousands of warrants since 9/11. They are 
the judges who review applications for business records orders and 
wiretapping authority under the PATRIOT Act. The administration has 
almost never had a warrant request rejected by these judges. It has 
used the FISA Court thousands of times, but at the same time it asserts 
that FISA is an ``old law'' or ``out of date'' in this age of 
terrorism, that it can't be complied with. Clearly the administration 

[[Page S2013]]

and does comply with it except when it doesn't. Then it just 
arbitrarily decides to go around these judges and around the law.
  The administration has said that it ignored FISA because it takes too 
long to get a warrant under that law. But we know that in an emergency 
where the Attorney General believes that surveillance must begin before 
a court order can be obtained, FISA permits the wiretap to be executed 
immediately as long as the Government goes to the court within 72 
hours. Now, the Attorney General has complained that the emergency 
provision does not give him enough flexibility; he has complained that 
getting a FISA application together, of getting the necessary 
approvals, takes too long. What the Attorney General is actually 
talking about, the problems he has cited, are bureaucratic barriers 
that the executive branch put in place. They are not mandated by 
Congress. They are not mandated under FISA. These were put into place 
by the Justice Department, the executive branch itself, and they could 
be removed if they wanted.
  FISA permits the Attorney General to authorize unlimited warrantless 
electronic surveillance in the United States--unlimited--during the 15 
days following a declaration of war to allow time to consider any 
amendments to FISA required by a wartime emergency. This is the time 
period that Congress specified very clearly. Yet the President thinks 
he is above the law. He thinks that he can just ignore that 15-day 
period and do this indefinitely. The President has argued that Congress 
gave him authority to wiretap Americans on U.S. soil without a warrant 
when it passed the authorization for use of military force after 
September 11, 2001.
  That is ridiculous. Members of Congress did not pass this resolution 
to give the President blanket authority to order warrantless wiretaps. 
We all know that. Anyone in this body who tells you otherwise either 
was not there at the time or isn't telling the truth. We authorized the 
President to use military force in Afghanistan, a necessary and 
justified response to September 11. We did not authorize him to wiretap 
American citizens on American soil without going through the process 
that was set up nearly three decades ago precisely to facilitate the 
domestic surveillance of terrorists with the approval of a judge. That 
is why--and I have heard them do this very clearly--many Senators, both 
Republicans and Democrats, have come forward to question this bogus 
  This particular claim is further undermined by congressional approval 
of the PATRIOT Act just a few weeks after we passed the authorization 
for use of military force. The PATRIOT Act made it easier for law 
enforcement to conduct surveillance on suspected terrorists and spies 
while maintaining FISA's baseline requirement of judicial approval of 
wiretaps of Americans in the U.S. It is also ridiculous to think that 
Congress would have negotiated and enacted all the changes to FISA in 
the PATRIOT Act if it thought it had just authorized the President to 
ignore FISA in the AUMF.
  In addition, in the intelligence authorization bill passed in 
December 2001, we extended the emergency authority in FISA at the 
administration's request from 24 hours to 72 hours. Why did we do that? 
Why do that if the President has some kind of inherent power or power 
under the authorization of force resolution to just ignore FISA? That 
makes no sense at all.
  The President has also said that his inherent executive power gives 
him the power to approve this program, but here the President of the 
United States is acting in direct violation of a criminal statute. That 
means his power is, as Justice Jackson said in the steel seizure cases 
a half century ago, ``at its lowest ebb.'' A letter from a group of law 
professors and former executive branch officials points out, ``Every 
time the Supreme Court has confronted a statute limiting the Commander-
in-Chief's authority, it has upheld the statute.'' The Senate reports 
issued when FISA was enacted confirm the understanding that FISA 
overrode any preexisting inherent authority of the President. As a 1978 
Senate Judiciary Committee report stated, FISA ``recognizes no inherent 
power of the President in this area.'' And ``Congress has declared that 
this statute, not any claimed Presidential power, controls.'' So 
contrary to what the President told the country in this year's State of 
the Union, no court has ever approved warrantless surveillance in 
violation of FISA.
  The President's claims of inherent executive authority and his 
assertions that the courts have approved this type of activity are 
baseless. But it is one thing to make a legal argument that has no real 
support in the law; it is much worse to do what the President has done, 
which is to make misleading statements about what prior Presidents have 
done and what courts have approved to try to somehow make the public 
believe that his legal arguments are much stronger than they really 
  For example, in the State of the Union, the President argued that 
Federal courts have approved the use of Presidential authority that he 
was invoking. I asked the Attorney General about this when he came 
before the Judiciary Committee, and he could point me to no court--not 
the Supreme Court or any other court--that has considered whether, 
after FISA was enacted, the President nonetheless had the authority to 
bypass it and authorize warrantless wiretaps. Not one court. The 
administration's effort to find support for what it has done in 
snippets of other court decisions would be laughable if this issue were 
not so serious.
  In the same speech, the President referred to other Presidents in 
American history who cited executive authority to order warrantless 
surveillance. But of course, those past Presidents--like Wilson and 
Roosevelt--were acting long before the Supreme Court decided in 1967 
that our communications are protected by the fourth amendment, and 
before Congress decided in 1978 that the executive branch could no 
longer unilaterally decide which Americans to wiretap. I asked the 
Attorney General about this issue when he testified before the 
Judiciary Committee. And neither he nor anyone in the administration 
has been able to come up with a single prior example of wiretapping 
inside the United States since 1978 that was conducted outside FISA's 
  So again the President's arguments in the State of the Union were 
baseless, and it is unacceptable that the President of the United 
States would so obviously mislead the Congress and American public.
  The President also has argued that periodic internal executive branch 
review provides an adequate check on the program. He has even 
characterized this periodic review as a safeguard for civil liberties. 
But we don't know what this check involves. And we do know that 
Congress explicitly rejected this idea of unilateral executive 
decisionmaking in this area when it passed FISA.
  Finally, the President has tried to claim that informing a handful of 
congressional leaders, the so-called Gang of 8, somehow excuses 
breaking the law. Of course, several of these members said they weren't 
given the full story. And all of them were prohibited from discussing 
what they were told. So the fact that they were informed under these 
extraordinary circumstances does not constitute congressional 
oversight, and it most certainly does not constitute congressional 
approval of the program.
  In fact, it doesn't even comply with the National Security Act, which 
requires the entire memberships of the House and Senate Intelligence 
Committee to be ``fully and currently informed of the intelligence 
activities of the United States.'' Nor does the latest agreement to 
allow a seven-member subcommittee to review the program comply with the 
law. Granting a minority of the committee access to information is 
inadequate and still does not comply with the law requiring that the 
full committee be kept fully informed.
  In addition, we now know that some of the Gang of 8 expressed concern 
about the program. The administration ignored their protests. One of 
the eight members of Congress who has been briefed about the program, 
Congresswoman Jane Harman, ranking member of the House Intelligence 
Committee, has said she sees no reason why the administration cannot 
accomplish its goals within the law as currently written.
  None of the President's arguments explains or excuses his conduct, or 

[[Page S2014]]

NSA's domestic spying program. Not one. It is hard to believe that the 
President has the audacity to claim that they do.
  And perhaps that is what is most troubling here. Even more troubling 
than the arguments the President has made is what he relies on to make 
them convincing--the credibility of the Office of the President itself. 
He essentially argues that the American people should trust him simply 
because of the office he holds.
  But Presidents don't serve our country by just asking for trust, they 
must earn that trust, and they must tell the truth.
  This President hides behind flawed legal arguments, and even behind 
the office he holds, but he cannot hide from what he has created: 
nothing short of a constitutional crisis. The President has violated 
the law, and Congress must respond. Congress must investigate and 
demand answers. Congress should also determine whether current law is 
inadequate and address that deficiency if it is demonstrated. But 
before doing so, Congress should ensure that there is accountability 
for authorizing illegal conduct.
  A formal censure by Congress is an appropriate and responsible first 
step to assure the public that when the President thinks he can violate 
the law without consequences, Congress has the will to hold him 
accountable. If Congress does not reaffirm the rule of law, we will 
create another failure of leadership, and deal another blow to the 
public's trust.
  The President's wrongdoing demands a response. And not just a 
response that prevents wrongdoing in the future but a response that 
passes judgment on what has happened. We in the Congress bear the 
responsibility to check a President who has violated the law, who 
continues to violate the law, and who has not been held accountable for 
his actions.
  We are hearing people say that somehow this censure resolution sends 
a terrible signal to the terrorists who want to do us harm. I tell you 
what is a terrible signal, that we are so meek in response to this 
terrorist threat that we are going to let the President of the United 
States break the law of this Nation and not do anything about it. Now 
that is a victory for the terrorists if we won't even stand up for our 
system of Government because everybody has to be afraid to mention that 
this President broke the law.
  Passing a resolution to censure the President is a way to hold this 
President accountable. A resolution of censure is a time-honored means 
for the Congress to express the most serious disapproval possible, 
short of impeachment, of the Executive's conduct. It is different than 
passing a law to make clear that certain conduct is impermissible or to 
cut off funding for certain activities.
  He should be censured.
  The Founders anticipated abuses of Executive power by creating a 
balance of powers in the Constitution. Supporting and defending the 
Constitution, as we have taken an oath to do, requires us to preserve 
that balance and to have the will to act. We must meet a serious 
transgression by the President with a serious response. We must work, 
as the Founders urged in Federalist 51, to control the abuses of 
  The Constitution looks to the Congress to right the balance of power. 
The American people look to us to take action, to speak out with one 
clear voice, against wrongdoing by the President of the United States.
  To conclude, in our system of government, no one, not even the 
President, is above the law.
  I send the resolution to the desk.
  The PRESIDING OFFICER. The resolution will be received and 
appropriately referred.
  Mr. FEINGOLD. Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Pennsylvania is recognized for 25 minutes.
  Mr. SPECTER. Mr. President, might I ask the Senator from Wisconsin to 
stay on the floor?
  Mr. President, I think this subject matter is worthy of debate, but 
notwithstanding my experience of debating, I don't think I can debate 
without someone to debate with. I tried to attract the attention of the 
Senator from Wisconsin before he departed the Chamber. I think I got in 
right as he was on the way out the door.
  But let me ask his staffers if they would invite the Senator from 
Wisconsin to return to the floor. Having listened to his long 
soliloquy, I would appreciate the benefit of his presence so we can 
deal with these issues in some substantive detail.
  At the outset, I say that I agree with a number of things which the 
Senator from Wisconsin said and items which are in his resolution.
  When he comes to the resolve clause and speaks about censure and 
condemnation of President Bush, I think he is vastly excessive. Call it 
over the top, call it beyond the pale, the facts recited in this 
resolution simply do not support that kind of conclusion.
  Going right to the heart of the issue, the Senator from Wisconsin 
says in the fourth ``whereas'' clause on page 2 that the President does 
not have the inherent constitutional authority to act in distinction 
and difference from the Foreign Intelligence Surveillance Act.
  That is what you call a naked assertion unsupported by any statement 
of law, unsupported by any rationale.
  The Judiciary Committee, of which the Senator from Wisconsin is a 
member, has held two hearings on the authority of the President to 
conduct electronic surveillance. And there has been a great deal of 
testimony from reputable sources saying that the President does have 
inherent authority under article II of the Constitution.
  If that legal conclusion is correct, then constitutional authority 
trumps a statute.
  The Congress cannot legislate in derogation of the President's 
constitutional authority.
  We cannot enact laws which take away authority prescribed to the 
President under the Constitution, just as we cannot legislate to take 
away authority that the Supreme Court has under the Constitution. Just 
as we cannot delegate our authority which the Constitution gives to the 
Congress, we cannot delegate our authority in derogation of our 
constitutional responsibilities and authorities.
  Those are very basic principles of law.
  I am sorry that the Senator from Wisconsin saw fit to condemn and 
excoriate the President for 25 minutes but doesn't have time to come to 
this floor to answer a simple question. And that simple question is, 
Doesn't the Constitution trump statute?
  A subordinate part of that question is if the President has inherent 
authority under article II, isn't it incorrect to say that the 
President has violated the Foreign Intelligence Surveillance Act, which 
would be superseded or trumped by the President's constitutional 
  We are going to have some more hearings before the Judiciary 
Committee. If I don't have an opportunity to confront the Senator from 
Wisconsin this afternoon, I will find another opportunity to do so.
  But I think the Record should be plain that in the hearing last month 
a number of academicians testified that the President does have 
inherent authority under article II to supersede the Foreign 
Intelligence Surveillance Act. And the Attorney General testified at 
length that the President has inherent authority under article II, 
which would lead to the conclusion that if Attorney General Gonzalez is 
correct, as a matter of law, then there is no violation of law by the 
President. Admittedly he is taking the President's side, but that is 
the job of Attorney General as a generalization. He also represents the 
American people, and he has to discharge his oath consistent with his 
duties to the American people.
  There are a number of points, as I have said earlier, where I think 
the Senator from Wisconsin makes a valid argument.
  I think on his third ``whereas'' clause on page 1 of the resolution, 
where he says that the Foreign Intelligence Surveillance Act is the 
exclusive statutory authority for electronic surveillance, he is 
correct. That doesn't rule out the Constitution superseding the 
statute, however.
  When the Senator from Wisconsin says on his third ``whereas'' clause 
on page 2 that the resolution authorizing the use of military force did 
not change the Foreign Intelligence Surveillance Act, I think the 
Senator from Wisconsin is correct. But the correctness

[[Page S2015]]

of those two propositions do not supersede the inherent article II 
authority of the President. And that is the issue which has yet to be 
  The majority leader spoke very briefly this afternoon before the 
Senator from Wisconsin presented his resolution. Senator Frist said 
that we are dealing with a lawful program. Senator Frist is in the 
position to make an evaluation on that subject because Senator Frist is 
one of the so-called Gang of 8, which has had access to the program. He 
has been briefed on the program.
  I believe the Senator from Wisconsin is correct in the body of his 
resolution when he raises an issue that the statute requires all 
members of the Intelligence Committee to be briefed. That is the 
applicable law. It may be that there are good reasons for not briefing 
all the members of the Senate Intelligence Committee and all members of 
the House Intelligence Committee. Perhaps because members of the 
Congress leak. But if good reasons do exist, then the President ought 
to come to the Congress and ask it to change the law. I agree with him 
that the Congress leaks. I have to say, in the same breath, that the 
White House also leaks. That is not a very good record for either the 
Congress or the White House.
  That is why I have prepared legislation which would submit the NSA 
electronic surveillance program to the Foreign Intelligence 
Surveillance Court. That court now passes on applications for search-
and-seizure warrants under the Foreign Intelligence Surveillance Act. 
They apply the standard, which is different than the standard for a 
search-and-seizure warrant in a criminal case. They have expertise in 
the field. They also have an exemplary record for keeping secrets.
  That is the way to deal with this issue. There must be a 
determination on constitutionality. It is not possible, in my legal 
judgment, to make a determination as to whether the President's 
inherent article II powers authorize this kind of a program, without 
knowing what the program is. I don't know what the program is. The 
Attorney General would not tell us what it is when he testified last 
month. I understood his reasons for not telling us, even though we 
could have gone into a closed session. But the Judiciary Committee was 
looking at the legalities of the program. We were in a position to 
render a judgment on whether the Foreign Intelligence Surveillance Act 
was the exclusive remedy, and whether the resolution to authorize the 
use of force changed the FISA act. But it is a matter for the 
Intelligence Committee to get into the details of the program which, 
until last week, the administration has been unwilling to do.
  I have great respect for my colleague Senator DeWine, and have talked 
to him extensively about this issue. He and I serve on the Judiciary 
Committee together. I like his idea about getting the administration to 
submit the program to, at least, the eight members of the Senate 
Intelligence Committee who, according to the press accounts, were 
briefed about it last week. I do not think it is adequate, as other 
parts of the DeWine legislation propose, to allow the surveillance to 
go on for 45 days, and at the end of that 45-day period to then give 
the administration the option of going to the FISA Court or to the 
Senate subcommittee. The subcommittee does not grant authorization for 
warrants. The subcommittee function is oversight. It is not a 
replacement for the Foreign Intelligence Surveillance Court.
  A way is at hand to deal with this issue. The majority leader, 
Senator Frist, said we have a lawful program. That opinion has weight, 
substantial weight in my mind, but it is not conclusive. Senator Frist 
is not a judicial official. It may be that a more detailed analysis is 
necessary than has been presented to the Gang of 8. I don't know, 
because I don't know what they heard or what they learned.
  How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 11\1/2\ minutes.
  Mr. DURBIN. Will the Senator yield the floor?
  Mr. SPECTER. No, but I will at the conclusion of my presentation.
  We ought to focus for a few moments on the importance of judicial 
review on the fourth amendment issues of search and seizure.
  With the limited time I have left, I have only a few references, but 
I begin with a famous case in 1761 where a Boston lawyer defended 
Boston merchants who had been searched by customs house officials. 
James Otis gave a stirring 5-hour speech, charging the customs officers 
``break locks, bars, and everything in their way; and whether they 
break through malice or revenge, no man, no court may inquire.'' Very 
weighty words in 1761. Maybe if James Otis had seen this program, we 
could take his word on its constitutionality.
  John Adams described this case as the spark of the American 
Revolution. He stated:

       Then and there was the child Independence born.

  Then in the Declaration of Independence in 1776, it is stated that 
one of the key reasons for the American Revolution involved the King 
allowing his officers to violate the rights of Americans and then 
protecting them ``by a mock trial, from punishment,'' for the injuries 
that they had committed.
  And then we have the fourth amendment. We need to go back to the 
basics of this amendment, which prohibit unreasonable searches and 
seizures. That is the question in this matter.
  In 1916, in the Weeks case, the Supreme Court of the United States 
ruled that evidence obtained in violation of the fourth amendment could 
not be used in a criminal trial. In 1961, in Mapp v. Ohio, the Supreme 
Court of the United States ruled that the due process clause of the 
14th amendment prohibited States and State criminal prosecutions from 
using evidence obtained as a result of an unreasonable search and 
  We have had the Supreme Court of the United States intervene, even in 
time of war, to limit the President's authority. During the Korean 
war, President Truman cited ``the existence of a national emergency'' 
to ``be able to repel any and all threats against our national 

  The Supreme Court of the United States, in Youngstown Sheet v. 
Sawyer, said the President did not have that authority. They said it 
exceeded his authority.
  In the Hamdi case, 2004, 18 or 20 months ago, the Supreme Court 

       We have long since made it clear that a state of war is not 
     a blank check for the President when it comes to the rights 
     of the Nation's citizens.

  And the Court went on to say:

       . . . whatever power the United States Constitution 
     envisions for the Executive in its exchanges with other 
     nations or with enemy organizations in times of conflict, it 
     most assuredly envisions a role for all three branches when 
     individual liberties were at stake.

  We have a way through this maze. The way through the maze is for the 
Congress to give jurisdiction to the FISA Court. That is our job, to 
give jurisdiction to Federal courts. We have dealt with the issue as to 
whether there is a case or a controversy. There is one. Without going 
into details here, it is not an advisory opinion.
  But this resolution calling for the condemnation and the censure of 
the President is out of line and out of bounds. In listening to the 
Senator from Wisconsin, I did not hear, at any time, him say the 
President has acted in bad faith. The President may be wrong, but he 
has not acted in bad faith. I think all would concede that the 
President was diligently doing the best job he can. And I agree with 
him. I think the President's best job is satisfactory, and that no one 
has ever accused him of bad faith.
  In the absence of any showing of bad faith, who has standing to 
censure and condemn the President and then not stay in the Chamber to 
debate the issue? I do hope this matter is referred to the Judiciary 
Committee, and not to the Rules Committee. We have already had two 
hearings on matters relating to this subject. I especially want to see 
this resolution referred to the Judiciary Committee because if it is in 
the Judiciary Committee, I can debate Senator Feingold. If it goes to 
the Rules Committee, I cannot debate Senator Feingold. Now, isn't that 
a powerful jurisdictional argument for the Judiciary Committee?
  Mr. DURBIN. Will the Senator yield?
  Mr. SPECTER. I do.
  Mr. DURBIN. First, through the Chair, I commend the Senator from 
Pennsylvania. As a member of the Senate Judiciary Committee, he has 

[[Page S2016]]

extraordinary leadership in convening two separate hearings on this 
question of the wiretap issue, the first with Attorney General Gonzales 
which I attended and thought to be one of the more challenging and 
interesting committee hearings I have ever attended--it went on for a 
whole day--the second, sadly, was in conflict with another meeting, a 
Rules Committee on ethics reform and I did not attend it, but he 
invited constitutional scholars to come and speak to the same issue. 
Many on Capitol Hill may shy away from controversial issues, 
particularly if they involve an administration of the same party. I 
commend the Senator from Pennsylvania for being an exception to the 
rule on this issue and for speaking up and standing up.
  I wish to ask a question. After listening to Attorney General 
Gonzales' testimony before our committee, it appears that the thrust of 
the constitutional argument justifying the wiretap goes back to a vote 
that we share, a vote we both cast in favor of authorizing the use of 
military force on September 18, 2001. I ask the Senator from 
Pennsylvania if he believed that in casting his vote for that 
resolution authorizing force to pursue those responsible for September 
11 that he was giving the President authority to wiretap American 
citizens without obtaining a court order required by the Foreign 
Intelligence Surveillance Act of 1978?
  Mr. SPECTER. No.
  Mr. DURBIN. The next question I wish to ask the Senator from 
Pennsylvania, and I appreciate his forthright response, the majority 
leader, Senator Frist, came to the Senate a few moments ago and said he 
believed the wiretap program of President Bush was constitutional and 
legal. Does the Senator from Pennsylvania agree with that conclusion?

  Mr. SPECTER. I neither agree nor disagree. I do not know. As I said 
more extensively in the body of my comments, I do not have any basis 
for knowing, because I do not know what the program does. I think it 
may be that the program could be structured as going after only al-
Qaida conversations. And I would like to see some proof of that. Quite 
frankly, I would like to see some proof that they have reasonable 
grounds to think one party or the other is al-Qaida. That is in the 
body of Senator Feingold's whereas clauses.
  It may be that they have been able to take a limited amount of 
information, destroying the rest, and that it has produced very 
important results with a minimal incursion. I do not know the answers 
to those questions. But I certainly think you ought not castigate the 
President as a criminal until you do know the answers to those 
  Mr. DURBIN. If the Senator will yield for a further question.
  Mr. SPECTER. I do. And I want to thank you for being here in Senator 
Feingold's stead.
  Mr. DURBIN. Well, I am standing here----
  Mr. SPECTER. You are a little tougher to debate than he, but I thank 
you for coming.
  Mr. DURBIN. I would like to ask the Senator from Pennsylvania one 
last question.
  When you referred to the suggestions of our colleague, Senator 
DeWine, on the Judiciary Committee, and other proposals to change the 
law that might accommodate what we are now seeing in this wiretap 
program, is that not an admission that what is going on now is 
violative of law or at least outside the bounds of the laws as written 
which authorize wiretaps?
  Mr. SPECTER. No, I do not think it is an admission because, like 
consent, it has to be informed. And I do not think he is informed. I do 
not think anybody is informed. I do not think Senator DeWine intends to 
make an admission. I think Senator DeWine, in good faith--very good 
faith--is searching for a way out. And I think he made a significant 
step forward when his actions resulted in seven members of the Senate 
Intelligence Committee being briefed. The reason I say ``I think'' is 
because I do not know what they were told. But I think that is a 
significant step.
  Senator DeWine's proposal of legislation to allow the program to go 
on for 45 days is no concession. It is going on anyway. His idea to 
bypass the FISA Court and allow the Administration instead to go to the 
Intelligence Subcommittee, I think, is not appropriate because the 
Intelligence Subcommittee does not have the function of a court.
  So I think he is doing the best he can. But right now we are flying 
blind on a great deal of this, and we have to accept very limited 
representations by the Gang of 8, and now the new Gang of 7. And no 
matter what, it does not amount to judicial review.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REID. Mr. President, I have an important announcement to make.
  Will my friend yield to me?
  Mr. SPECTER. I do.
  The PRESIDING OFFICER. The time of the Senator from Pennsylvania has 
expired. The Senator does not control time.
  The Senate minority leader is recognized.

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Thank you very much.
  Mr. President, I would like to conclude the matter raised between 
Senator Specter and myself about the resolution brought to the floor by 
Senator Feingold.
  I heard yesterday that Senator Feingold was going to offer this 
resolution. I did not realize he would do it today. I have spoken to 
Senator Feingold, and I believe it is his intention not to bring this 
to a vote today, as some have suggested, but, rather, to use this as a 
catalyst to bring about the kinds of hearings and investigations that 
this Congress owes to the people of the United States on the wiretap 
  I have saluted Senator Specter earlier for his leadership on the 
Senate Judiciary Committee. I am sorry the Senate Intelligence 
Committee, given a chance to do the same thing, failed to exercise its 
oversight responsibility on this same program.
  I think it is important, regardless of party affiliation, that we ask 
the critical constitutional and legal questions about this wiretap 
program. This resolution by Senator Feingold will be a catalyst for 
that type of investigation, those types of hearings. Whether that 
results in a censure of the President or any further action against the 
President remains to be seen. But it certainly says to the American 
people, we are not going to ignore what could be one of the most 
serious constitutional issues to come before this Government in 
  I have read this resolution Senator Feingold has offered. I agree 
with Senator Specter, I do not think when we voted to go to war against 
the Taliban we said to the President that he could ignore the law, that 
he could go about wiretapping Americans without court approval. That is 
basic to America.
  The President has said over and over publicly, if we are going to 
wiretap people, we will get court approval. Well, it turns out that is 
not the case

[[Page S2019]]

at all. I do not know how often because I have not been briefed on the 
details, but apparently on many occasions this Government has 
wiretapped the conversations of American citizens without court 
approval. The President and the administration have not followed the 
clear letter of the law. That is an important and serious 
constitutional question.
  I think the resolution being brought to us by Senator Feingold will 
cause us to look anew at this critically important issue. Whether it 
results in any action by Congress, as I said, remains to be seen. But I 
think it is important that we accept this challenge by the Senator from 
Wisconsin and that hearings be held in the Judiciary Committee, if that 
is where the resolution is eventually referred, and possibly even in 
the Intelligence Committee.
  I hope the Intelligence Committee will start to move on this on a 
bipartisan basis. It has historically been a bipartisan committee. But 
recently in the last few weeks there have been many important votes 
taken on partisan rollcalls, votes relative to the authority and 
exercise of that authority by this committee in investigating this Bush 
  It would be good if the committee could return to its bipartisan 
ways. I think it would give the institution of the Senate a vote of 
confidence that we can stand and investigate Presidents of either 
political party if there is serious and important policy questions to 
be determined.
  I yield the floor.
  Mr. SESSIONS. Mr. President, what is the time agreement?
  The PRESIDING OFFICER. There is a previous order that at 5:30 we will 
move to executive session and proceed to a vote on Calendar No. 520.
  Mr. SESSIONS. Mr. President, I think back to a young Senator Inouye, 
serving in our military, putting his life at risk and nearly losing it 
for our country. One thing he had a right to expect of his Congress 
was, as a soldier, he would be supported in the conflict.
  We are here today hearing of a resolution presented by Senator 
Feingold to censure the President of the United States. It is baseless. 
It is not sound in law, and it is not sound in policy. We, by over a 
three-quarters vote, voted to send our soldiers in harm's way. This 
Senate voted to do that. We authorized the President, in a use of force 
resolution, to identify those responsible for attacking us and to 
attack and destroy them, to use such military force as he deemed 
appropriate to attack and kill them. And our soldiers have been doing 
  The Supreme Court recently had to deal with the situation in which an 
American citizen was captured abroad, Hamdi. They caught him. It went 
before the Supreme Court of the United States, and the issue was 
whether he was entitled to a trial.
  The question was, Was he entitled to a trial? The Supreme Court held 
otherwise. The Supreme Court said that he was a prisoner of war, and 
the authorization of military force authorized the military to attack 
and kill enemies of the United States. It also authorized them to 
capture them. That was incident to the use of military force.
  It is quite plain that our history of military affairs supports the 
concept that surveilling in a time of war is incident to the carrying 
on of war. In the same way that we have a right to take an American 
citizen and lock them up in jail without trial if they are identified 
to be with the enemy, we can surveil the enemy's communications.
  The President authorized simply this: al-Qaida conversations in which 
one of the parties to that conversation is outside the United States 
could be monitored. We know it was through those kinds of 
communications that 9/11 occurred. We had sleeper cells here activated 
by foreign communications.
  It is wrong to undermine this President while we have our soldiers at 
war and at risk, to suggest that he has done something wrong and needs 
to be censured.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SESSIONS. I express my strongest disapproval of the propriety of 
this resolution.