thank the Chairman for holding this hearing today. We desperately need
some answers to basic questions about the President's decision to
wiretap Americans on American soil without court approval and without
attempting to comply with the Foreign Intelligence Surveillance Act.
More than three months and two Committee hearings after the President
was forced to acknowledge the program's existence, this Committee
remains in the dark with regard to nearly every aspect of the program.
As Senator Specter succinctly put it recently, we are still "flying
blind on a great deal of this."
United States Senate Committee on the Judiciary
III: Wartime Executive Powers and the FISA Court
March 28, 2006
Statement Of Senator Patrick Leahy,
Ranking Member, Judiciary Committee,
Hearing On "NSA III: War Time Executive Power and the FISA Court"
March 28, 2006
We held our first hearing on
February 2 with Attorney General Gonzales. His testimony was more
obstructionist than enlightening. He flatly refused to discuss anything
beyond "those facts the President has publicly confirmed, nothing
more." In other words, he refused to tell us anything we did not
The Administration's stonewalling has only
gotten worse since then. Three weeks later, the Attorney General wrote
an extraordinary letter to Chairman Specter, seeking to alter his live
testimony -- mainly by making it even less responsive than it was. That
letter raised serious additional concerns about the scope of the
Administration's domestic spying activities, its shifting legal
rationalizations, and the Attorney General's own credibility.
example, the Attorney General's letter suggests that the Administration
is operating other secret programs that invade the rights and liberties
of Americans. But it refuses to answer our questions regarding the
scope and the purported legal basis of those programs.
Attorney General's letter admits that "the Department's legal analysis
has evolved over time," while once again refusing to answer the basic
factual question of when the Administration came up with its theory
that the congressional resolution authorizing military force against al
Qaeda also authorized warrantless domestic wiretapping of Americans. I
can only infer that the Administration's AUMF theory was concocted long
after it decided to ignore FISA.
The AUMF says nothing about
FISA or about domestic wiretaps. And no members of Congress I have
spoken to understood themselves to be partially repealing FISA's
warrant requirement when they voted for the AUMF. So here, four years
after the fact, we have an Administration that purports to pride itself
on "strict construction" claiming that, unbeknownst to the Congress
that passed it, the AUMF's silence on wiretaps overrides FISA's express
prohibition, including in wartime, of warrantless domestic wiretaps. I
agree with George Will who wrote in a column last month that that after
the fact rationalization is both "risible" and "incoherent."
fulfill our legislative function, we need to know what other invasions
into Americans' rights and privacy the Administration believes we
authorized, and why. However, the Bush-Cheney Administration continues
The Democratic members of the Committee finally
received a response late last Friday to the priority questions we sent
the Attorney General following his appearance on February 6. I say we
received a "response" because saying we got "answers" would be an
exaggeration. What we got, with respect to virtually every question,
was some version of "we cannot [answer]" or "we are not able to
[answer]" or "we are not in a position [to answer]" or simply, "it
would be inappropriate for us [to answer]."
We held our
second hearing on the program on February 28. That hearing was an
academic panel discussion featuring scholars and former government
officials with a great deal of expertise in the law, but no knowledge
of the program that they were discussing. We had a good discussion. But
it was not oversight.
Nor is our hearing today. Our witnesses
are experts in the Foreign Intelligence Surveillance Act, but they have
no special knowledge of the President's program to wiretap Americans
outside of that Act. They cannot tell us any more than the very little
that we already know about what this Administration has been doing for
the last four years under its theory of limitless Executive power.
are stuck at an impasse, lacking information or cooperation from an
Administration that refuses to submit to real congressional oversight.
This is, of course, nothing new from an obsessively secretive
Administration that has classified historical documents for no reason,
conducted energy policy and attempted to outsource port security behind
closed doors, routinely blocked investigations and audits, repeatedly
harassed whistleblowers, and dismissively refused to cooperate with
congressional oversight for more than five years. This Administration
has a paranoid aversion to openness and accountability that will not be
overcome by gentle persuasion.
The Administration tells us,
we won't tell you enough to do meaningful oversight over what we're
doing, so just trust us. But how can we trust this Administration, when
every day brings more evidence of its incompetence, including
yesterday's revelation that our borders are not even secure from the
simplest scheme to smuggle in a dirty bomb?
So how can we
move forward to protect the security and the rights and freedoms of the
American people? I believe that we in Congress need to do three things.
First, if the rule of law means anything, we must insist on
real oversight and real accountability. The Chairman said at our last
hearing, "we will struggle to try to find out what the program is."
With the greatest of respect, that need not be a "struggle." We have
the constitutional right to compel information from this Administration
by subpoena. During the last two years of the Clinton Administration,
this Committee approved the issuance of more than a dozen subpoenas to
the Department of Justice and former DOJ officials, both for documents,
including legal memoranda, and for live testimony. The question is not
whether we can find out the extent of the Administration's secret
spying on the American people. The question is whether the Republican
majority of this Congress has the political will to do so.
if there is a real need for legislation that eases existing
restrictions under FISA, we should of course pass it, as we have done
on a bipartisan basis with numerous powers requested by this
Administration over the past five years. However, we should not rush to
give the Administration new powers it has not deigned to request, based
on concerns it has not articulated.
Finally, in discussing
legislation, we should collectively draw a line in the sand. No new
powers should be given to this Administration until we secure a firm
assurance that it will faithfully execute and abide by the law as
written by Congress. We have spent many hours of the people's time in
this Congress, and been subjected to extreme partisan political
pressure, responding to the Administration's repeated demands for
urgent amendments to FISA, the PATRIOT Act and other laws that limit
Americans' civil liberties for the sake of security. Yet, as George
Will pointed out, all those debates have been a meaningless charade if
the Administration's "monarchical" assertions of essentially unfettered
presidential power to conduct the war on terror are taken seriously.
If, as the Administration contends, the President can pick and choose
which laws he will or will not follow, what is the point of our
We are not here to play charades. We are here
to legislate the law of the land. So any further legislation that we
enact in this area should, at a minimum, include express provisions
that require the President to stop equivocating with vague, expansive
and dangerous theories of inherent powers, and to accept that he is
fully bound by the legislation as written. We must put an end to police
state powers operating outside the law.