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


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

[[Page S9503]]

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