Senator Feinstein Opposes Broadening
Presidential Authority to Wiretap Without Warrants
FOR IMMEDIATE RELEASE:
Contact: Howard Gantman or Scott Gerber 202/224-9629
Thursday, August 3, 2006
http://feinstein.senate.gov
Washington, DC – U.S. Senator Dianne Feinstein (D-Calif) today expressed her great concern that Senator Arlen Specter’s (R-Penn.)’s National Security Surveillance Act, as presently amended after negotiations with the Bush Administration, would broaden the scope of the President’s authority to permit the President or his designee to wiretap American citizens, enter their homes, or even open personal mail without a warrant.
"The new [Specter-White House] FISA bill is worse than no bill at all," Senator Feinstein said. "The new bill would strengthen the President’s authority to act outside of FISA, eliminate the longstanding exclusivity of FISA, and replace it with language that would allow the President to exercise unchecked authority."
Senator Feinstein encouraged her colleagues instead to support her separate FISA bill, the Foreign Intelligence Surveillance Improvement Act of 2006, which Senator Specter has also co-sponsored. Senator Feinstein’s bill, previously endorsed by the American Bar Association, received a letter of support yesterday from more than 35 additional organizations.
The following is the prepared text of Senator Feinstein’s statement delivered during today’s Judiciary Committee markup:
"Today, we are being asked to vote on a modified and new version of Senator Specter’s FISA bill, S.2453 which is supported by the Bush Administration. Unfortunately, this new bill is worse than no bill at all.
At present, the Foreign Intelligence Surveillance Act plainly states that its provisions must be followed – it is the exclusive means of conducting electronic surveillance for foreign intelligence purposes.
The new bill would strengthen the President’s authority to act outside of FISA, eliminate the longstanding exclusivity of FISA, and replace it with language that would allow the President to exercise unchecked authority.
The new Administration-supported bill says, among other things: 'Nothing in this bill shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.'
And the bill changes FISA to authorize the President to exercise unspecified ‘constitutional’ powers outside of FISA’s statutory limits – not only in FISA’s wiretapping sections, but also in the FISA section discussing physical searches.
Before FISA was passed in 1978, similar language had been proposed by President Ford’s Attorney General. Congress refused to add this language then, and we should refuse to add it today.
The new language broadens the scope of the President’s authority. The effect is that the President or someone he designates in the Executive Branch could claim they are simply exercising his ‘constitutional’ powers as Commander-in-Chief to fight terrorism.
I am concerned that under the new language, the President or his designee could now:
- Wiretap American citizens without a warrant; and
- Enter Americans’ homes without a warrant.
Carried to its logical conclusion, one could foresee this broad grant of power being used to justify the authorizing of opening personal mail at will, or even the President ordering assassinations.
In addition to broadening the scope and expanding Presidential power, the new Specter bill actually strengthens the Executive’s authority to unilaterally act independently of the other branches of government.
In 1952, Justice Jackson issued his famous opinion in Youngstown Steel, identifying the three categories of Executive power:
1. When the President acts consistent with the will
of Congress;
2. When the President acts in an area in which Congress has not expressed
itself; and
3. When the President acts in contravention of the will of Congress.
In the first of these categories, the President’s power is greatest; in the third, the President’s power is at its lowest.
Currently, the Administration’s activities in contradiction of FISA almost certainly fall within the third Youngstown category – where his claims of constitutional authority are weakest.
The Supreme Court in Hamdan squarely rejected the Administration’s arguments that the Authorization for the Use of Military Force (AUMF) Resolution also authorized unspecified ‘incidents’ of war such as the creation of military commissions. This is the same argument that the President previously made to justify his actions outside of FISA – that even though the AUMF made no mention of electronic surveillance whatsoever, it was an ‘incident’ of war that we had somehow authorized in that Resolution.
Having lost Hamdan, and with its AUMF argument so squarely rejected, the Administration can no longer fairly point to any statute that gives it authority to act outside of FISA.
But now, if Congress adopts the Specter bill, the Administration can argue that its actions fall within the first category of the Youngstown analysis. I am concerned the language changes the law so that Congress would be authorizing the President to exercise discretion and power outside of FISA – and therefore any actions the Administration takes outside of FISA are allowable and taken with Congress’ approval.
This would fundamentally shift the balance in the Court’s constitutional analysis.
Some have tried to suggest that this provision does nothing more than state the obvious – that it simply reiterates that the constitution can trump statutes.
Respectfully, I disagree.
Youngstown makes it clear that what Congress says in its statutes has a significant and meaningful impact on the Court’s analysis of the Executive’s actions.
When testifying before our Committee, even Mr. Bradbury conceded this point, when he acknowledged that statutes can reasonably regulate a President’s exercise of his constitutional authority. Mr. Bradbury was well aware of the importance of these provisions; when asked if we could take them out, he was unwilling to say the President would still support this bill if the provisions were removed.
In short, the Administration is agreeing to submit its program for court review only if a thumb is essentially placed on the scales of justice – if we agree to alter the Youngstown calculus that will determine the program’s constitutionality. We should not capitulate by giving up our constitutional power and ceding all to the President.
The Administration bill also would repeal the language that allows the President to wiretap without a FISA warrant for 15 days after a declaration of war.
After 15 days, the President must get a FISA warrant. This is important because it clarifies that the role of courts in ensuring the civil liberties of Americans will be limited only to the extent deemed reasonably necessary in a true national emergency. After that, the President must comply with FISA or ask Congress for a further extension. Without this limit, the President’s authority to wiretap without any outside oversight might extend until war’s end.
While wars do not necessarily have specific end points, there is usually some identifying action that signals an end – such as the surrender of one party, annexation of a territory under dispute, a peace treaty, or one party’s unilateral withdrawal.
However, in the ‘war on terror,’ it is highly unlikely that there would be a similar triggering event that would signify the end.
The deletion of this 15-day limit means that the President may legally conduct surveillance without a FISA warrant for decades, and potentially for the indefinite future. I am concerned that this type of long-term, unsupervised wiretapping could eventually lead to abuses of the type that led us to enact FISA in the first place – where war protesters and even Martin Luther King were secretly wiretapped without any outside oversight. The new Specter bill would turn back the clock to an era of unchecked Presidential power and warrantless domestic surveillance.
I am especially concerned that the abuses could have a broad impact because the provision covers not just electronic surveillance, but also physical searches – meaning that the Executive’s power to enter Americans’ homes without a warrant, for the duration of our ‘war on terror,’ might also continue indefinitely.
This is not a change we should make lightly.
I am also concerned that the evaluation of this program by the Courts depends on the President voluntarily submitting his NSA program for judicial review. There is no affirmative mandate in the bill.
It is also unclear whether the FISA court can even decide the constitutional issue that the President would submit to them. It is unclear whether a FISA court has the Article III jurisdiction necessary to decide this issue.
The Administration-supported bill would also abandon the individual warrant approach that has been the hallmark of FISA for more than 25 years.
I have said on several occasions that I think this is a mistake.
I am confident, after being briefed, that the NSA’s program can be and should be carried out with individual warrants.
Instead of individual warrants, the new bill would authorize ‘program’ warrants for content collection, which means listening to Americans’ phone conversations – not just monitoring who someone called, but actually listening to what is said.
'Program' warrants have never been tried – and we have no idea how many phones or individuals could be wiretapped with a single ‘program’ warrant. This means that if the Administration gets one ‘program’ warrant, it might allow them to wiretap 10 phones, 100 phones, or 1000 phones. Nobody really knows.
In short, we don’t even know what this bill would be authorizing.
Several of our witnesses last week discussed this issue. Generals Alexander and Hayden both suggested that FISA’s individualized warrant process could be preserved, and would be manageable, for U.S. persons in the U.S., at least if we exempted out foreign targets from FISA’s requirements.
I have no problem exempting out from FISA any foreign-foreign communications that pass through U.S. switches, and will offer an amendment to make that clear.
In addition, I understand the Generals believe that other changes may be necessary. However, I am unable to evaluate their proposals without fully discussing the operational details of the program – which are classified.
Therefore, I intend to examine further, in a classified setting before the Intelligence Committee, whether “hot pursuit” of a known foreign target’s communications with U.S. person #1, #2, etc. can be adequately handled by the emergency warrant process available under FISA.
But I think one thing is now clear: There no longer is any doubt that securing an individual warrant for U.S. persons targeted for wiretapping on U.S. soil is feasible.
I believe we ought to preserve FISA’s individual warrant process – the core of FISA for more than two decades. I believe we ought to reaffirm the privacy rights of ordinary American citizens. The new Specter bill goes too far. It is now clear we don’t need to broaden the scope of FISA to such a degree. And we shouldn’t.
Finally, I am concerned that the new bill also appears to authorize more categories of people to be wiretapped without FISA warrants, and for longer periods of time than the NSA program now in place.
For example, the Administration has publicly said that the current NSA program is limited to international calls involving associates of al Qaeda or affiliated terrorist organizations. The new Specter bill allows far more.
The Administration also tell us that the President reviews the NSA programs every 45 days. Under the new Specter bill, however, a program warrant lasts for 90 days, and then can be reauthorized without any specific time limit placed on its duration – it could be reauthorized for months, years, or even indefinitely.
The President has said that his program only targets a specific suspected affiliate of al Qaeda, but the new bill would apply when it is not possible to specify a target.
The new Specter bill also changes the definitions of many key terms of FISA, in ways not yet fully explained, and that may fundamentally change the scope of FISA. For example, the definition of 'electronic surveillance' itself is completely rewritten, so that it would now include only conversations in which Americans are targeted. In other words, so long as the surveillance is "directed at" a non-U.S. person, the government could intercept the international calls of U.S. persons without a court order.
I am concerned about making such significant changes when it has not yet been established that these modifications are necessary or appropriate.
As I have mentioned in previous markups, rarely does Congress face an issue like this, in which the stakes are so high on both sides – we are considering legislation that impacts national security on one hand, and the core privacy rights of innocent Americans on the other. It is so important that we get this balance right.
Congress was able to strike the balance appropriately more than 25 years ago when it enacted FISA, and I am confident that, if we work together on a bipartisan basis, we can do it again today.
I urge my colleagues to oppose the Administration-supported version of S.2453."