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
request?
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
time?
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
oversight.
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
leader?
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
made.
Mr. REID. There is no unanimous consent request now pending; is that
right?
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
right?
The PRESIDING OFFICER. That is the pending request. Is there
objection?
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
remarks.
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
again.
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
right.
This President has done wrong. This body can do right by condemning
his
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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
order.''
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
lawfully.
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
can
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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
theory.
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
are.
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
authorization.
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
the
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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
Government.
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
authority?
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
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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
resolved.
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
seizure.
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
security.''
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
stated:
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
shown
[[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
questions.
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
program.
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
decades.
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
administration.
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
that.
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.
____________________
