Statement of Senator Russ Feingold
Senate Judiciary Committee Hearing On the Call
To Censure the President
March 31, 2006
Mr. Chairman, first, thank you for scheduling this hearing. I know
you recognize that this is a serious issue, and I thank you for treating
it as such. I want to welcome and thank our witnesses, some of whom
– Mr. Fein, and Professor Turner -- were with us just a few weeks
ago, and one of whom -- Mr. Dean -- last appeared before a congressional
committee in 1974. I am grateful for your participation, particularly
given the short notice that you were given of this hearing.
There is a time-honored way for matters to be considered in the Senate.
Bills and resolutions are introduced, they are analyzed in the relevant
committee through hearings, they are debated and amended and voted on
in committee, and then they are debated on the floor. We have now started
that process on this very important matter, and I look forward to seeing
it through to a conclusion.
Mr. Chairman, I have looked closely at the statements you have made
about the NSA program since the story broke in December. We have a disagreement
about some things, but I am pleased to say we are in agreement on several
others. We agree that the NSA program is inconsistent with FISA. We
agree that the Authorization for Use of Military Force did not grant
the President authority to engage in warrantless wiretapping of Americans
on U.S. soil. We agree that the President was and remains required under
the National Security Act of 1947 to inform the full Intelligence Committees
of the NSA program, which he refuses to do.
Where we disagree, apparently, is whether the President’s authority
under Article II of the Constitution allows him to authorize warrantless
surveillance without complying with FISA. You have said you think this
is a close question. I do not believe he has such authority and I don’t
think it’s a close question. We will continue to debate that I’m
sure. But I think the fact that you have proposed legislation on this
program undermines your argument that such presidential authority exists.
Because if it does exist, then nothing that we can legislate, no matter
how carefully crafted, is worth a hill of beans. For starters, your
proposed bill may or may not cover what the NSA is now doing. You and
I have no way of knowing because we have not been fully briefed on the
program, and I am a member of the Intelligence Committee as well. But
regardless, if the President has the inherent authority to authorize
whatever surveillance he thinks is necessary, then he surely will ignore
your law, just as he has ignored FISA on many occasions.
If Congress doesn’t have the power to define the contours of
the President’s Article II powers through legislation, then I
have no idea why people are scrambling to draft legislation to authorize
what they think the President is doing. If the President’s legal
theory, which is shared by some of our witnesses today, is correct,
then FISA is a dead letter, all of the supposed protections for civil
liberties contained in the reauthorization of the Patriot Act that we
just passed are a cruel hoax, and any future legislation we might pass
regarding surveillance or national security is a waste of time and a
charade. Under this theory, we no longer have a constitutional system
consisting of three co-equal branches of government, we have a monarchy.
We can fight terrorism without breaking the law. The rule of law is
central to who we are as a people, and the President must return to
the law. He must acknowledge and be held accountable for his illegal
actions and for misleading the American people, both before and after
the program was revealed. If we in the Congress don’t stand up
for ourselves and for the American people, we become complicit in his
law breaking. A resolution of censure is the appropriate response –
even a modest approach.
Mr. Chairman, the presence of John Dean here today should remind us
that we must respond to this constitutional crisis based on principle,
not partisanship. How we respond to the President’s actions will
become part of our history. A little over 30 years ago, a President
who broke the law was held to account by a bipartisan congressional
investigation and by patriots like Archibald Cox and Elliot Richardson
and yes, John Dean, who put loyalty to the Constitution and the rule
of law above the interests of the President who appointed them. None
of us here can predict how history will view this current episode. But
I hope that thirty years from now, this Senate will not be seen to have
backed down in the face of such a grave challenge to our constitutional
I look forward to hearing from our witnesses. Thank you Mr. Chairman.