United States Senate Committee on the Judiciary
"Wartime Executive Power and the NSA's Surveillance Authority II"
February 28, 2006

Bruce Fein, Esq.
Fein & Fein

Thank you, Mr. Chairman and members of the committee.

This is a defining moment in the constitutional history of the United States, and on this issue I think we're all republicans and we're all democrats, to borrow from Thomas Jefferson's inaugural, because the issues that we confront with regard to checks and balances are indispensable to the liberty of those living and those yet to be born.

The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA would equally justify mail openings, burglaries, torture or internment camps all in the name of gathering foreign intelligence. Unless rebuked it will lie around like a loaded weapon, ready to be used by any incumbents who claims an urgent need.

And on this score, as Justice Holmes said, a page of history speaks volumes of logic. FISA was the child of the Church committee hearings. It disclosed, among other things, that in 1938 when a secret program of domestic surveillance not authorized by Congress was undertaken to identify fascists or communists, the director of the FBI, the attorney general and the president concurred as follows, quote: "In considering the steps to be taken for the expansion which then occurred of the present structure of intelligence work it is believed imperative that it be proceeded with the utmost degree of secrecy in order to avoid criticism or objections which might be raised by such an expansion by either ill-informed persons or individuals having some ulterior motive. Consequentially, it would seem undesirable to seek special legislation which would draw attention to the fact of what is being done."

President Bush has advanced the identical justification for refusing to seek congressional authority for the NSA's warrantless eavesdropping, targeting Americans citizens at home. What happened after the 1938 secret intelligence program commenced? The abuses, mail openings, burglaries, Internal Revenue Service harassments, a security index in violation of the Internal Security Act of 1950 in COINTELPRO.

The bureaucratic mentality of the spy was captured in the following FBI headquarters response to its New York office's conclusion that surveillance of a civil rights leader should cease because an investigation had unearthed no evidence of communist sympathies. And this is what the bureau headquarters wrote in response: "The bureau does not agree with the express belief of the New York office that Mr. X is not sympathetic to the party cause. While there may not be any direct evidence that Mr. X is a communist, neither is there any direct substantial evidence that he is anti-communist."

In other words, it is the mental inclination of spies and the intelligence community to overreach because their job is to gather intelligence, their job is not to weigh and balance privacy interests. Privacy interests that Justice Louis D. Brandeis characterized in Olmstead v United States, the right to be left alone, the most comprehensive of rights, and the right most valued by civilized men.

Now, this committee was told by the attorney general on February 6th that we can all be assured because NSA professionals are deciding who is and who is not sympathetic to al Qaeda, that only the culprits are targeted. But the whole purpose of the fourth amendment, the whole purpose of FISA, was to have an outside check on the executive branch spying because of the inherent tension with the desire of the professional to get the maximum intelligence and the desire of the American people to be secure in their persons, houses, papers and effects. That is the reason why FISA was enacted and why it has demanded such scrupulous conformity over the years.

The argument is made that the authorization to use military force somehow overrode the FISA statute. On its face, it is preposterous, because the theory that the AUMF authorized the president to undertake anything pertinent to collecting foreign intelligence also meant that this committee and this Congress silently overrode the prohibitions on mail openings, on breaking and entering homes, on torture, cruel, inhumane, degrading treatment of prisoners, and to do all of those things in silence on its face is laughable.

I'd like to briefly address what I think the responsibility of this committee is. You don't know, we don't know exactly what the nature of the spying program of the NSA is, as the attorney general conceded on February 6. So we don't know the nature of the problem that's created by FISA.

The attorney general said domestic to domestic al Qaeda calls, FISA works reasonably well. And the president hasn't authorized those kinds of interceptions without warrants. Well, on its face, why would the practical difficulty of complying with FISA when an international call is at issue should be different from the domestic calls? Maybe there is, but this committee and the American people haven't been told why.

The burden of persuasion ought to be on the president to explain why FISA is unworkable, not on us to explain why a secret program we know nothing about is unnecessary. The power of the purse is perhaps the greatest power the founding fathers entrusted to the legislative branch.

It has been used in the past and in my judgment should be used now to stipulate that the president can undertake no electronic surveillance for foreign intelligence purposes outside of FISA, unless within 30 days the president comes forward with a plan that this Congress agrees will be treated on a fast track basis like trade negotiations and let the burden be on the administration to explain to this committee why changes are necessary.

Thank you, Mr. Chairman.