Talk:NSA warrantless surveillance controversy/Timeline

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sections included in timeline: DoJ, CRS, legal analysis of 14 scholars, House response, senate response

redacted:

• In a February 28 follow up letter to his March 6 testimony, Gonzales called the NSA domestic spying program "The Terrorist Surveillance Program."^[1]

Contents 1 December 2 January 3 February 4 March 5 April 6 May 7 References

[edit] December

Three days after news broke about the Terrorist Surveillance Program, a bipartisan group of Senators--Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine, sent a letter dated December 19, 2005 to Judiciary and Intelligence Committees chairmen and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program. An excerpt from the letter reads: ^[2]

We respectfully request that the Select Committee on Intelligence and the Committee on the Judiciary, which share jurisdiction and oversight of this issue, jointly undertake an inquiry into the facts and law surrounding these allegations. The overlapping jurisdiction of these two Committees is particularly critical where civil liberties and the rule of law hang in the balance.

On Saturday the President stated that he "authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." It is critical that Congress determine, as quickly as possible, exactly what collection activities were authorized, what were actually undertaken, how many names and numbers were involved over what period, and what was the asserted legal authority for such activities. In sum, we must determine the facts.

On the same day, U.S. Dept. of Justice Letter from Assistant Attorney for Legislative Affairs, General William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

[edit] January

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on January 5, 2006 regarding the NSA electronic surveillance of communications, titled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" and concluding that^[3][4][5]

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.

On January 9th, 14 constitutional scholars and former government officials wrote a response to the Department of Justice letter, and transmitted it to Chairs and Ranking Members of the House and Senate:

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

On January 10, 2006, John Conyers (D-MI) announced in a press release on his official website that the Democratic members of the House Judiciary Committee would hold an informal hearing on the warrantless spying program. ^[6]

The Congressional Research Service released another report on January 18, 2006, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". The report found that "Based upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute..."^[7], and as such the Bush administration's refusal to brief any members of Congress on the warrantless domestic spying program other than the so-called Gang of Eight congressional leaders is "inconsistent with the law."^[8]

If the NSA surveillance program were to considered an intelligence collection program, (sic) limiting congressional notification of the NSA program to the Gang of Eight, which some Members who were briefed about the program contend, would appear to be inconsistent with the law, which requires that the "congressional intelligence committees be kept fully and currently informed of all intelligence activities," other than those involving covert actions.

On January 19th, the Department of Justice wrote a memorandum to the Chairs and Ranking members of the House and Senate, titled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President":

For the foregoing reasons, the President—in light of the broad authority to use military force in response to the attacks of September 11th and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.

On January 20, 2006, the Democratic members of the House Judiciary Committee held an informal hearing on the warrantless spying program. They heard the testimony of Caroline Fredrickson of the ACLU, who told them, "The executive power of our country is not an imperial power... The president has demonstrated a dangerous disregard for our Constitution and our laws with his authorization for this illegal program". ^[9] On that day Conyers also sent a letter to a number of telecommunications companies asking how much they had cooperated with the government. ^[10]

On the same day, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens." An excerpt of the proposed Leahy-Kennedy resolution follows: ^{[11] [12]}

Whereas Congress created the FISA court to review wiretapping applications for domestic electronic surveillance to be conducted by any Federal agency;

Whereas the Foreign Intelligence Surveillance Act of 1978 provides specific exceptions that allow the President to authorize warrantless electronic surveillance for foreign intelligence purposes (1) in emergency situations, provided an application for judicial approval from a FISA court is made within 72 hours; and (2) within 15 calendar days following a declaration of war by Congress;

Whereas the Foreign Intelligence Surveillance Act of 1978 makes criminal any electronic surveillance not authorized by statute;

Whereas the Foreign Intelligence Surveillance Act of 1978 has been amended over time by Congress since the September 11, 2001, attacks on the United States;

Whereas President George W. Bush has confirmed that his administration engages in warrantless electronic surveillance of Americans inside the United States and that he has authorized such warrantless surveillance more than 30 times since September 11, 2001;

In preparation for the February 6th Judiciary Committee hearing Wartime Executive Power and the National Security Agency's Surveillance Authority, Senator Russell Feingold (D-WI) submitted four questions, on January 23, 2006 in a letter to John D. Negroponte, Donald Rumsfeld and Keith B. Alexander "requesting information about whether data mining of information has been employed in the context of warrantless surveillance." The four questions within Feingold's letter are: ^[13]

1. Please explain how and under what authority the NSA intercepts or analyzes communications or related transactional data that are either entirely within the United States or have at least one party inside the United States, when NSA is not targeting the communications of a specific person.

2. Please explain how and under what authority the NSA carries out surveillance with the cooperation of U.S. communications compaines as opposed to situations where NSA operates domestically without such cooperation. When the NSA has the cooperation of U.S. communications companies, explain under what circumstances that cooperation is pursuant to court order and when it is not.

3. Has the NSA been employing automated data analysis, or data mining, techniques to analyze the communications of Americans within the United States, or working with other agencies within the Intelligence Community to do so? If so, does the analysis involve transactional information about those communications, the contents of those communications, or both? Has the results of this analysis served as the basis for warrantless wiretaps of Americans in the United States or for obtaining FISA warrants for surveillance? For what other purposes have these results been used?

4. Please provide and studies, reports, memos, or other analyses generated within the NSA, the Defense Department or the Office of the Director of National Intelligence, or provided to those entities by the Department of Justice or any other department or agency, discussing the NSA's legal authority to conduct automated data analysis, or data mining, within the United States; the effectiveness of such technology; or any consideration of the privacy issues relating to implementing such a program within the United States.

Eight Democrat members, including Feingold, of the Judiciary Committee also sent a letter with six questions dated January 27, 2006 to Attorney General Alberto Gonzales seeking documents and correspondence from the days immediately following the September 11, 2001 attacks prior to the hearing. The letter signers include: Leahy, Kennedy, Senator Joseph Biden of Delaware, Herb Kohl of Wisconsin, Feinstein, Feingold, Senator Charles Schumer of New York, and Senator Richard Durbin of Illinois. The six questions submitted to Gonzales from within the letter are: ^[14]

(1) Please provide all letters, memoranda, notes, e-mails or other documents that are or reflect communications from the Administration to Congress during the time period September 11 through September 14, 2001, of proposals for, or draft language to be included in what came to be the Authorization for Use of Military Force.

(2) Please provide all letters, memoranda, notes, e-mails or other documents that are or reflect communications from the Administration to Congress during the time period September 11 through September 14, 2001, of the Administration's understanding of the meaning of the language being considered for inclusion in what came to be the Authorization for Use of Military Force.

(3) Please provide all documents that are or reflect internal Administration communications during the time period September 11 through September 18, 2001, regarding the meaning of the language being considered for inclusion in what came to be the Authorization for Use of Military Force.

(4) The Authorization for Use of Military Force makes no mention of domestic surveillance. What specific language does the Administration assert grants authority to the President to conduct domestic surveillance without seeking warrants from the Foreign Intelligence Surveillance Court?

(5) Please provide copies of all memoranda and legal opinions rendered by the Department of Justice during the past 30 years that address the constitutionality of government practices and procedures with respect to electronic surveillance.

(6) Please provide any documents by which the President has, prior to and after September 11, 2001, authorized the NSA surveillance programs, including all underlying legal opinions authored by the White House.

On the same day, in response to growing criticism, the United States Department of Justice Office of Public Affairs on released a four page document titled The NSA Program to Detect and Prevent Terrorist Attacks - Myth vs Reality to defend the legality of the NSA program. An abridged version is reproduced below:^[15]

Myth: The NSA program is illegal.
Reality: The President's authority to authorize the terrorist surveillance program is firmly based both in his constitutional authority as Commander-in-Chief, and in the Authorization for Use of Military Force (AUMF) passed by Congress after the September 11 attacks.

Myth: The NSA program is a domestic eavesdropping program used to spy on innocent Americans.
Reality: The NSA program is narrowly focused, aimed only at international calls and targeted at al Qaeda and related groups. Safeguards are in place to protect the civil liberties of ordinary Americans.

Myth: The NSA activities violate the Fourth Amendment.
Reality: The NSA program is consistent with the Constitution’s protections of civil liberties, including the protections of the Fourth Amendment.

Myth: The NSA program violates the Foreign Intelligence Surveillance Act (FISA).
Reality: The NSA activities described by the President are consistent with FISA.

Myth: The Administration could have used FISA but simply chose not to.
Reality: In the war on terrorism, it is sometimes imperative to detect—reliably, immediately, and without delay—whether an al Qaeda member or affiliate is in contact with someone in the United States. FISA is an extremely valuable tool in the war on terrorism, but it was passed in 1978 and there have been tremendous advances in technology since then.

Myth: FISA has "emergency authorizations" to allow 72-hour surveillance without a court order that the Administration could easily utilize.
Reality: There is a serious misconception about so-called "emergency authorizations" under FISA, which allow 72 hours of surveillance without a court order. FISA requires the Attorney General to determine in advance that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization can be granted, and the review process itself can and does take precious time.

[edit] February

On February 1, 2006, House Chairman of the Permanent Select Committee on Intelligence, Peter Hoekstra (R-MI), wrote a letter criticising the release and content of two papers analysing the legality of the program by the Congressional Research Service. ^[16]

On February 2nd, the same 14 constitutional scholars and former government officials wrote a response to the DOJ's 2nd letter, transmitting it to the Chairs and Ranking members of the House:

In sum, we remain as unpersuaded by the DOJ's 42-page attempt to find authority for the NSA spying program as we were of its initial five-page version. The DOJ's more extended discussion only reaffirms our initial conclusion, because it makes clear that to find this program statutorily authorized would requires rewriting not only clear specific federal legislation, but major aspects of constitutional doctrine. Accordingly, we continue to believe that the administration has failed to offer any plausible legal justification for the NSA program.

During the Judiciary Committee hearing [1] open to the public on February 6 Attorney General Gonzales presented defended the program Gonzales claimed that the "except as authorized by statute" provision of 50 U.S.C. § 1809(a)(1) meant that, due to the passage of the Authorization for the Use of Military Force, FISA isn't the exclusive means by which domestic electronic surveillance can be done. Gonzales opinied: "Congress and the American people are interested in two fundamental questions: is this program necessary and is it lawful. The answer to both questions is yes." In the excerpt below, Gonzales explains: ^{[17] [18]}

The question of necessity rightly falls to our Nation’s military leaders, because the terrorist surveillance program is an essential element of our military campaign against al Qaeda. I therefore address it only briefly. The attacks of September 11th placed the Nation in a state of armed conflict. In this armed conflict, our military employs a wide variety of tools and weapons to defeat the enemy. General Michael Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, recently explained why a terrorist surveillance program that allows us quickly to collect important information about our enemy is so vital and necessary to the War on Terror.

The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who the enemy is and what he is doing. We have to collect the right dots before we can "connect the dots." The terrorist surveillance program allows us to collect more information regarding al Qaeda’s plans, and, critically, it allows us to locate al Qaeda operatives, especially those already in the United States and poised to attack. We cannot defend the Nation without such information, as we painfully learned on September 11th.

As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. The Attorney General of the United States is the chief legal adviser for the President and the Executive Branch. Accordingly, the Department of Justice has thoroughly examined this program and concluded that the President is acting within his power in authorizing it. The Department of Justice is not alone in concluding that the program is lawful. Career lawyers at NSA and its Inspector General office have been intimately involved in the oversight of the program. The lawyers have found the program to be lawful and reviewed its conduct. The Inspector Genera's office has exercised vigorous reviews of the program to provide assurance that it is carried out within the terms of the President's authorization.

The terrorist surveillance program is firmly grounded in the President's constitutional authorities. The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have repeatedly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).

If this authority is available in ordinary times, it is even more vital in the present circumstances of our armed conflict with al Qaeda. The President authorized the terrorist surveillance program in response to the deadliest foreign attack on American soil, and it is designed solely to prevent the next al Qaeda attack. After all, the goal of our enemy is to blend in with our civilian population in order to plan and carry out future attacks within America. We cannot forget that the September 11th hijackers were in our country, living in our communities.

The President's authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his constitutional powers. It comes directly from Congress as well. Just a few days after the attacks of September 11th, Congress enacted a joint resolution to support and authorize the military response to the attacks on American soil. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) ("AUMF"). In the AUMF, Congress did two important things. First, it expressly recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Second, it supplemented that authority by authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" in order to prevent further attacks on the United States.

Accordingly, the President's authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, under the three-part framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), the President’s authority falls within Category I, and is at its highest. He is acting "pursuant to an express or implied authorization of Congress," and the President’s authority "includes all that he possesses in his own right [under the Constitution] plus all that Congress can" confer on him.

Specter suggested letting the Foreign Intelligence Surveillance Court decide the legality of the program. Gonzales sidestepped. Leahy tried to pin Gonzales down - "You're not answering my question," he told Gonzales. Kennedy said terror suspects could get off due to tainted evidence. "We don't believe prosecutions are going to be jeopardized," Gonzales responded. ^[19]

On February 7, 2006 Congresswoman Heather Wilson (R-NM), chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, broke ranks with congressional Republicans and declared support for a full congressional inquiry regarding the surveillance program. Wilson said that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about who the agency is monitoring and why. ^[20] On February 8, 2006 Michael V. Hayden and Alberto R. Gonzales gave the committee a secret briefing. Jane Harman (D-Calif.), told reporters that "the ice is falling."^[21]

On February 8, 2006, Congressman James Sensenbrenner, Chairman of the House Judiciary Committee wrote [2] Congressional Research Service director Daniel Mulholland, complaining about the incomplete analysis of the NSA surveillance analysis and attaching letters by Law Professors Robert Alt [3] and John C. Eastman. [4] Alt is associated with the John Ashbrook Center for Public Affairs and Eastman with the Claremont Institute, both dedicated to teaching the conservative tenets of strict constructionism and limited government.

Senator Arlen Specter (R-Pa.) received a letter from Assistant Attorney General William E. Moschella February 15 which said, "We do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information," referring to a request by the Judiciary Committee for testimony from former attorney general John Ashcroft and former deputy attorney general James B. Comey. Specter is circulating legislation that would require the Foreign Intelligence Surveillance Court to rule on the constitutionality of the NSA program. "Unless they're prepared to have a determination on constitutionality as to their programs, window dressing oversight will not be sufficient," Mr. Specter said. Mike DeWine (R-O) has proposed authorizing the program and using subcomittees to oversee it.^[22]

On February 16, 2006 the co-chairmen of the House Permanent Select Committee on Intelligence said the committee will hold closed door investigations. Jamal Ware, a spokesman for Chairman Hoekstra, said the inquiry would not examine operational details, however anonymous congressional aides and representative Heather A. Wilson said it would.^[23] Rep. Jane Harman (D-Calif.) said she was told there was no broader program than the NSA warrantless surveillance by White House counsel Harriet Miers on March 1 and by Attorney General Alberto R. Gonzales on March 2, 2006.^[24]

[edit] March

On March 12, 2006, Senator Feingold called on the Senate to censure the President over the controversy. [5]

Senate Judiciary Committee Chairman Arlen Specter (R-PA) introduced on March 16, 2006, S. 2453 National Security Surveillance Act of 2006 (statement) (text), "to establish procedures for the review of electronic surveillance programs." An excerpt of the proposed bill follows:

`SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

`(a) NECESSARY FINDINGS- Upon receipt of an application under section 703, the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested, or as modified, approving the electronic surveillance program if it finds that--

`(1) the President has authorized the Attorney General to make the application for electronic surveillance for foreign intelligence information;

`(2) approval of the electronic surveillance program in the application is consistent with the duty of the Foreign Intelligence Surveillance Court to uphold the Constitution of the United States;

`(3) there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power that is specified in the application and is seeking to commit an act of international terrorism or clandestine intelligence activities against the United States;

`(4) the proposed minimization procedures meet the definition of minimization procedures under section 101(h);

`(5) the application contains all statements and certifications required by section 703; and

`(6) an evaluation of the implementation of the electronic surveillance program, as described in subsection (b), supports approval of the application.

`(b) EVALUATION OF THE IMPLEMENTATION OF THE ELECTRONIC SURVEILLANCE PROGRAM- In determining whether the implementation of the electronic surveillance program supports approval of the application for purposes of subsection (a)(6), the Foreign Intelligence Surveillance Court shall consider the performance of the electronic surveillance program for at least 3 previously authorized periods, to the extent such information is available, and shall--

`(1) evaluate whether the electronic surveillance program has been implemented in accordance with the proposal by the Federal Government by comparing--

`(A) the minimization procedures proposed with the minimization procedures implemented;

`(B) the nature of the information sought with the nature of the information obtained; and

`(C) the means and operational procedures proposed with the means and operational procedures implemented;

`(2) consider the number of communications intercepted by the electronic surveillance program and the length of time the electronic surveillance program has been in existence; and

`(3) consider the effectiveness of the electronic surveillance program, as reflected by the foreign intelligence information obtained.'.

Specter's bill also mentioned Emergency Authorization:

SEC. 8. EMERGENCY AUTHORIZATION.

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 6, is amended by adding at the end the following:

`SEC. 706. EMERGENCY AUTHORIZATION.

`Notwithstanding any other provision of law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to, acquire foreign intelligence information for a period not to exceed 45 days following a declaration of war by Congress.'.

[edit] April

On April 1, 2006, the Senate Judiciary Committee held a hearing about Feingold's motion to censure. At the hearing, John Dean, former counsel to Richard Nixon, remarked:

No presidency that I can find in history has adopted a policy of expanding presidential powers merely for the sake of expanding presidential powers. Presidents in the past who have expanded their powers have done so when pursuing policy objectives. It has been the announced policy of the Bush/Cheney presidency, however, from its outset, to expand presidential power for its own sake, and it continually searched for avenues to do just that, while constantly testing to see how far it can push the limits. I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self- righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals.

. . .

Bush’s on-going action with his NSA wiretapping (if not secrecy, torture, etc.) and Congressional inaction (or acquiescence) must, sooner or later, intersect, and a point will be reached and crossed when the Congress has all but sanctioned the conduct and the president can violate the law with utter abandonment. No one can say that the Congress has not been put on notice. While there is vague law that says Congressional inaction is not a license for executive action, Congress is now confronted with executive branch attorneys who take the most aggressive reading possible in all situations that favor executive power. It is only necessary to look at the Administration’s interpretation of the September 18, 2001 Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541) which it reads as authorization for the NSA program, to appreciate how far it will push.

And that is what I believe will happen if Chairman Specter’s proposal to involve the Foreign Intelligence Surveillance Act court should become law. If past is prologue, President Bush will not bother to veto the bill, rather he will quietly issue a signing statement saying as Commander in Chief he disagrees with the bill, and he does not care what the FISA court says, and he will just keep doing what he has been doing. In short, should Congress pass Chairman Specter’s bill, the Chairman should recall what happened to Senator John McCain’s torture amendment before he attends the photo op at the White House while Vice President Cheney is off somewhere approving the signing statement – and gutting the law. If this committee does not believe this Administration is hell bent on expanding its powers with such in-your-face actions, you have been looking the other way for some five years of this presidency.

That is why censure might be the only way for the Senate to avoid acquiescing in what is clearly a blatant violation of the 1978 FISA stature, not to mention the Fourth Amendment. If “censure” is politically too strong for the Senate, then an appropriately worded Sense of the Senate resolution not acquiescing in the president’s defiance of the law might be a fall back position to prevent a waiver, and preserve Congress’s prerogatives.

In short, I implore the Senate to undertake not a partisan action, but a strong institutional action. I recall a morning – and it was just about this time in the morning and it was exactly this time of the year – March 21, 1973 – that I tried to warn a president of the consequences of staying his course. I failed to convince President Nixon that morning, and the rest, as they say, is history. I certainly do not claim to be prescient. Then or now. But actions have consequences, and to ignore them is merely denial. Today, it is very obvious that history is repeating itself. It is for that reason I have crossed the country to visit with you, and that I hope that the collective wisdom of this committee will prevail, and you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it.

GOP lawmakers called Feingold's resolution "irresponsible," "inappropriate," "excessive," "perverse," "false," "surreal," "beyond the pale," and "destructive." Republican Senator Orrin Hatch, contradicting Dean's assumption that "...it is stipulated that no one disagrees with the Administration’s desire to deal aggressively with terrorism," said "I can only hope that this constitutionally suspect and, I believe, inflammatory attempt to punish the president for leading this war on terror will not weaken his ability to do so," and the Committee's ranking Democrat, Patrick Leahy, stated "I ... have no hesitation in condemning the president for secretly and systematically violating the laws of the United States of America."^[25]

On April 27, 2006, Judiciary Committee Chairman Arlen Specter (R-Pa.) initiated legislative consideration of cutting off funds for NSA domestic surveillance unless Congress is kept fully and currently informed. He said, "The four hearings we have had and the way the matter is drifting, in my view, is insufficient to safeguard civil liberties. These are matters which require some active congressional action and that's what I'm looking toward."^[26]

[edit] May

On May 10, 2006, Maurice Hinchey (D-NY) received a letter from the Department of Justice advising him that their investigation of the program had to be terminated due to denial of security clearances. CNN quoted Hinchey as saying,

"This administration thinks they can just violate any law they want, and they've created a culture of fear to try to get away with that. It's up to us to stand up to them."^[27]

On May 11, 2006, Arlen Specter said,

"We will be calling in ATT, Verizon and BellSouth, as well as others, to see some of the underlying facts when we can't find out from the Department of Justice or other administration officials."^[28]

On May 15, 2006 Sen. Trent Lott (R-Mississippi) Was quoted by CNN as stating

"What are people worried about? What is the problem? Are you doing something you're not supposed to?"^[29]

[edit] References