[Senate Hearing 109-524]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-524



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                             MARCH 31, 2006


                          Serial No. J-109-66


         Printed for the use of the Committee on the Judiciary

28-341                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Cornyn, Hon. John, a U.S. Senator from the State of Texas........    13
    prepared statement...........................................    73
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     6
    prepared statement...........................................    88
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina.......................................................    12
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     8
    prepared statement...........................................    93
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................    96
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    10
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     2


Casey, Lee A., Baker and Hostetler, Washington, D.C..............    19
Dean, John W., III, former White House Counsel, Beverly Hills, 
  California.....................................................    21
Fein, Bruce, Fein and Fein, Washington, D.C......................    17
Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois......    22
Turner, Robert F., Associate Director, Center for National 
  Security Law, University of Virginia, Charlottesville, Virginia    15

                       SUBMISSIONS FOR THE RECORD

Boston Herald, March 15, 2006, Boston, Massachusetts, editorial..    55
Calabresi, Steven G., George C. Dix Professor of Constitutional 
  Law, Northwestern University, Chicago, Illinois, prepared 
  statement......................................................    56
Casey, Lee A., Baker and Hostetler, Washington, D.C., prepared 
  statement......................................................    62
Chicago Tribune, March 20, 2006, Chicago, Illinois, editorial....    72
Dean, John W., III, former White House Counsel, Beverly Hills, 
  California, prepared statement.................................    74
Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement.    82
Fulton County Daily Report, October 13, 1998, Atlanta, Georgia, 
  editorial......................................................    90
New York Times, March 17, 2006, New York, New York, editorial....    98
San Diego Union-Tribune, March 16, 2006, San Diego, California, 
  editorial......................................................    99
Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois, 
  prepared statement and attachment..............................   100
Sunstein, Cass R., University of Chicago Law School, Chicago, 
  Illinois, letter...............................................   104
Turner, Robert F., Associate Director, Center for National 
  Security Law, University of Virginia, Charlottesville, 
  Virginia, prepared statement...................................   107
University of Richmond Law Review Association, March 1999, 
  Richmond, Virginia, essay......................................   123



                         FRIDAY, MARCH 31, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Sessions, Graham, Cornyn, 
Leahy, Kohl, and Feingold.
    Chairman Specter. Good morning, ladies and gentlemen. It is 
9:30. We will proceed with Senator Feingold's resolution to 
censure the President.
    First, let me wish happy birthday to Senator Leahy.
    Senator Leahy. Thank you very much, Mr. Chairman. At a 
little after six this morning, Marcelle and I were down at the 
Tidal Basin taking pictures, walking around. But I wanted to 
get back especially because a classmate of mine from 
Georgetown, Mr. Dean, is here. But it was beautiful down there. 
A lot of people asked for you.
    Chairman Specter. Excuse me, but why are you changing the 
subject from your birthday?
    Senator Leahy. Because 66 is older. But it was gorgeous 
down there. I realize you want to get to the hearing, but I 
talked to all of the pages yesterday, those wonderful young men 
and women who serve us all on the Senate floor, and I urged 
them all to go down along the Tidal Basin because this is 
something they will remember the rest of their lives.
    With that, Mr. Chairman, I will hush and let you run your 
    Chairman Specter. Well, Senator Leahy, we do wish you a 
happy birthday. You have made the disclosure voluntarily that 
you are 66, and you have a lot to show for it. You are in your 
32nd year in the U.S. Senate. Before that, you had an important 
job. You were district attorney of Burlington, Vermont.
    Pat and I have known each other since D.A. days back in the 
late 1960s.
    Senator Leahy. We have, indeed.
    Chairman Specter. You have had a very distinguished record 
here, and it has been a very satisfying experience to work with 
you as Ranking for the past 14 months and I think we have a 
fair amount to show for that, too.
    Senator Leahy. Thank you. You are a dear friend, Mr. 
Chairman, and I appreciate it. Thank you.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. This is a very important hearing for 
several reasons. First of all, it will examine in some depth--
in fact, in substantial depth, the scope of the President's 
wartime power under Article II of the Constitution. Second, it 
will examine the interrelationship of Congressional power under 
Article I, and also the courts' power under Article III, the 
interrelationship and the famous opinion by Justice Jackson in 
the steel seizure case about the strength of Presidential 
authority when backed up by the Congress and the weakness of 
Presidential authority when not backed by the Congress.
    Although the President has extensive authority under 
Article I, the Congress has extensive authority in the premises 
under Article II. The point of the tradition of judicial review 
before the issuance of warrants for surveillance or search and 
seizure comes into play in this matter.
    On the merits, I have already expressed myself on the floor 
of the United States Senate. Some would say that the resolution 
by Senator Feingold to censure the President is frivolous. I am 
not prepared to say that, but I do think that there is no merit 
in it, but it provides a forum for the discussion of issues 
which really ought to be considered in greater depth than they 
have been.
    This is the fourth hearing that this Committee has had on 
this issue in March. That is a lot of hearings by the Judiciary 
Committee when we have to wrestle with confirmations and 
immigration. As we speak, immigration is on the floor, although 
not much will happen today because--well, we won't go into 
    We had the Attorney General, we had a panel of experts, we 
had former judges of the Foreign Intelligence Surveillance 
Court in a rather remarkable hearing, in my opinion. It wasn't 
easy for them to come forward and speak on this subject, but 
they did so out of a deep sense of patriotism and out of a deep 
sense of judicial responsibility to comment about warrantless 
searches and our effort to find some way to reconcile the 
issues of Presidential authority to protect this country, which 
is vital, from the terrorists with the rights of civil 
liberties. Those are big, big issues.
    I thought they would attract more attention. One of the 
major newspapers carried an extensive story. Another major 
newspaper said nothing about it at all. Other papers gave it 
very scant coverage. But when those judges come forward and 
testify as to what the Foreign Intelligence Surveillance Court 
does and how there is an avenue for judicial review, 
recognizing the President's authority and recognizing the 
problem of leaks from the Congress, like there are leaks from 
the White House--it is a pretty even-stephen matter when it 
comes to leaks in this town, but the court doesn't leak and the 
Foreign Intelligence Surveillance Court could provide the 
judicial review which would be so important here.
    I begin in some detail because of its importance with the 
scope of the President's power under Article II. In 1972, in 
the Keith case, the Supreme Court took up the issue of 
warrantless domestic surveillance and specifically left open 
the issue of the Presidential authority for foreign 
intelligence gathering without warrants.
    The Court of Appeals for the Fourth Circuit in 1980, in the 
case of United States v. Truong, made some very cogent 
statements on the policy underlying this issue. The Fourth 
Circuit said this: ``The needs of the executive are so 
compelling in the area of foreign intelligence, unlike the area 
of domestic intelligence, that a uniform warrant requirement 
would unduly frustrate the President in carrying out his 
foreign affairs responsibility. First of all, attempts to 
counter foreign threats to the national security require the 
utmost stealth, speed and secrecy. A warrant requirement would 
add a procedural hurdle that would reduce the flexibility of 
executive foreign intelligence initiatives.''
    The court went on to say, ``The executive possesses''--my 
staff underlined it in blue, so it is hard to read. ``The 
executive possesses unparalleled expertise to make the decision 
whether to conduct foreign intelligence surveillance, whereas 
the judiciary is largely inexperienced in making the delicate 
and complex decisions that lie behind foreign intelligence 
surveillance. The executive branch, containing the State 
Department, the intelligence agencies and the military, is 
constantly aware of the Nation's security needs and the 
magnitude of external threats posed by a panoply of foreign 
nations and organizations.''
    One of the most impressive statements in this area was a 
memo which President Roosevelt gave to his Attorney General on 
May 21, 1940, which said, quote, ``You are therefore authorized 
and directed in such cases as you may approve, after 
investigating the need in each case, to authorize the necessary 
investigation agents that are at liberty to secure information 
by listening devices directed to the conversations or other 
communications of persons suspected of subversive activities 
against the Government of the United States. You are requested, 
furthermore, to limit these investigations so conducted to a 
minimum and to limit them insofar as possible.'' A pretty 
forceful statement by a well-respected President in a time of 
national emergency. We weren't at war yet, but World War II was 
in process.
    Then the Foreign Intelligence Court of Review said in In Re 
Sealed--referring to the fact that two other circuits besides 
the Fourth Circuit have upheld warrantless searches by the 
President under Article II, the Foreign Intelligence Court of 
Review said, ``All other courts to have decided the issue have 
held that the President did have inherent authority to conduct 
warrantless searches to obtain foreign intelligence. FISA could 
not encroach on the President's constitutional power,'' close 
    Of course, a statute cannot limit constitutional authority. 
The Constitution trumps a statute, but that is not the end of 
the process. The evaluation of whether the President is 
authorized under Article II to conduct the surveillance in 
issue is something we don't know because we don't know what the 
surveillance in issue is. So it is an open question.
    I believe that there is a need for a lot more public 
consideration and public concern about this issue than we have 
had, and that is why this Committee has had four hearings and 
this Committee intends to pursue it. It is true that if we pass 
a statute over the President's veto, which I suppose he would, 
the legislation which I have proposed to give the FISA court 
authority to review the program--he might ignore that, but he 
didn't ignore the 89-to-9 vote on the torture issue and we may 
find a political solution to this issue. Some progress has been 
made with the Intelligence Committee subcommittee.
    But I feel very strongly about the issue and I believe that 
the question of judicial review is rockbed Americana. I want to 
be sure the President has the authority he needs to protect 
America, but that is up to the court to decide.
    I am going to yield now to the distinguished Ranking Member 
and then I am going to yield to Senator Feingold, if he cares 
to make an opening statement.

                        STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chairman. I do agree we 
can do laws, but we are almost like Hotspur in calling them 
from the depths. Will the President follow the law? You spoke 
of the law on torture, a great deal of fanfare, signing 
ceremony and all, and then we found out afterwards, of course, 
the President wrote on the side that he did not intend to have 
it apply to people he didn't want it to apply to. In other 
words, you may have passed a heavy torture law, but I don't 
intend to follow it.
    This is the fourth hearing to consider the President's 
domestic spying activities. Mr. Chairman, you are to be 
commended for actually holding hearings, which is something not 
happening in the Republican-controlled Congress. After this 
hearing, we will have heard from a total of 20 witnesses, but 
out of those witnesses only one witness--only one--had any 
knowledge of the spying activities beyond what they witnessed 
and read in the newspapers. That witness was Attorney General 
Gonzales, who flatly refused to tell us anything beyond, quote, 
``those facts the President has publicly confirmed, nothing 
more,'' close quote.
    Time after time, Attorney General Gonzales, who knew about 
the program, when he was asked questions said I am not going to 
answer. So to this date, we have not had a hearing where 
somebody actually has come forward and said here is what 
    What the President has publicly confirmed is that for more 
than 4 years, he has secretly instructed intelligence officers 
at the National Security Administration to eavesdrop on the 
conversations of American citizens in the United States without 
following the procedures set forth in the Foreign Intelligence 
Surveillance Act.
    After its secret domestic spying activities were revealed, 
the administration offered two legal justifications for its 
decision not to follow the law, not to follow FISA. First, the 
administration asserted a broad doctrine of Presidential 
inherent authority to ignore the laws passed by Congress in 
prosecuting the war on terror. In other words, they say the 
rule of law is suspended and this President is above the law 
for the uncertain and no doubt lengthy duration of the 
undefined war on terror.
    Second, the administration asserted that in the 
authorization for the use of military force, which makes 
incidentally no reference to wiretapping--this was the 
authorization that said go get Osama bin Laden. We all agreed 
with that. Unfortunately, the administration gave up on that 
attempt and decided to go into Iraq instead, and so Osama bin 
Laden is still loose. There was no reference to wiretapping.
    The administration claims now that Congress unconsciously 
authorized warrantless wiretaps that FISA expressly forbids 
even in wartime. This is ``Alice in Wonderland'' gone amok. It 
is not what we in Congress said and it certainly was not what 
we in Congress intended.
    Because of the exception I have already noted, because the 
Republican-controlled Congress has not conducted real 
oversight, and because the attempts that this Committee had 
made on oversight have been stonewalled by the administration, 
we don't know the extent of the administration's domestic 
spying activities. But we know that the administration has 
secretly spied on Americans without attempting to comply with 
FISA, and we know that the legal justifications it has offered 
for doing so, which have admittedly evolved over time, are 
patently flimsy.
    I therefore have no hesitation in condemning the President 
for secretly and systematically violating the laws of the 
United States of America. I have no doubt that such a 
conclusion will be history's verdict. History will evaluate how 
diligently the Republican-controlled Congress performed the 
oversight duties envisioned by the Founders. As of this moment, 
history's judgment of the diligence and resolve of the 
Republican-controlled Congress is unlikely to be kind.
    Our witnesses today will address whether censure is an 
appropriate sanction for these violations. I am inclined to 
believe that it is. If oversight were to reveal that when the 
President launched this illegal program he had been formally 
advised by the Department of Justice it would be lawful, that 
kind of bad advice would not make his actions lawful, but at 
least might provide the color of an excuse.
    If, on the other hand, he knowingly chose to flout the law 
and then commissioned a spurious legal rationalization years 
after he was found out, then he should bear full 
responsibility. To quote Senator Lindsey Graham from an earlier 
point in his Congressional service when he bore the weighty 
role of a House manager in a Presidential impeachment trial, 
``We are not a nation of men or kings, we are a nation of 
    I have said before that this Committee needs to say any 
formal legal opinions from this administration that address the 
legality of NSA practices and procedures with respect to 
electronic surveillance. The American people have a right to 
know whether or not their President knowingly chose to flout 
the law when he instructed the NSA to spy on the American 
people. That is why our next step should be to subpoena the 
opinions. We know the President broke the law. Now, we need to 
know why.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Senator Feingold.

                       STATE OF WISCONSIN

    Senator Feingold. Mr. Chairman, first, thank you for 
scheduling this hearing and for giving me the opportunity to 
make an opening statement. I know you recognize that this is a 
serious issue, and I thank you for treating it as such.
    I want to wish the Ranking Member a happy birthday, 
especially after that eloquent and powerful statement of where 
we are at this point.
    Chairman Specter. We are not going to have any applause or 
any demonstrations or any expressions from anybody in the 
hearing room. This is a serious matter and it is a matter for 
the Senators to speak to, and the witnesses, and no showing 
from the audience.
    Senator Feingold. Mr. Chairman, I assume that was for the 
Senator's birthday, the applause. But, Mr. Chairman, thank you.
    Chairman Specter. It is as good as your other assumptions, 
Senator Feingold.
    Senator Feingold. Fair enough.
    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, as so many of us remember. I 
am grateful for your participation, particularly given the 
short notice that you were given of the 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.
    Obviously, I believe the proposal for censure has 
substantial merit, and I am pleased that we now have the issue 
of accountability of the President here back to the foreground. 
In fact, Mr. Chairman, I waited three months after attending 
the Judiciary Committee hearings, the Intelligence Committee 
hearings--I also serve on the Intelligence Committee--before I 
came to the conclusion that censure would be an appropriate 
step in this matter. I was very deliberate in my thinking about 
    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, of course, the President has refused to do.
    Mr. Chairman, I think it is not irrelevant or insignificant 
with regard to the merits of censure that such bogus arguments 
have been advanced in favor of this program. 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 this is 
a close question. I do not believe he has such authority and I 
don't think it is a close question. We will continue to debate 
that, I am sure.
    But I think the very fact that you have proposed 
legislation on this program tends to undermine your argument 
that such Presidential authority exists, because if it does 
exist, then nothing that we can legislate, nothing, 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. I am also, as I 
said, a member of the Intelligence Committee, where I didn't 
get to learn about the details there either.
    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, 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 coequal 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 also 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 the 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 do hope that 30 years from now this Senate will 
not be seen to have backed down in the face of such a grave 
challenge to our constitutional system.
    Mr. Chairman, I look forward to hearing from our witnesses, 
and I again do appreciate the opportunity to make an opening 
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Specter. Senator Hatch has requested some time for 
an opening statement and you may proceed.

                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. Let me just 
say I am one of two sitting Senators that I know of who has had 
the privilege of sitting twice on the Intelligence Committee. I 
might also add that I am one of the seven bipartisan members of 
the committee on the subcommittee who have been chosen to 
review the warrantless surveillance program, and we have been 
doing that.
    I will just add that I believe the President was not only 
within his inherent powers to do this--I think there are some 
people around here who don't believe there are any inherent 
powers in the executive branch. I believe there are, and I 
think that history and case law shows that there are.
    I personally find that the President did much more. He 
certainly did not break the law. He had to reauthorize this 
program every 45 days. They informed the FISA chief judge. They 
informed the FISA chief judge's replacement. They informed 
eight leaders of Congress--the two leaders in the House and the 
Senate and the vice chairmen and chairmen of the intelligence 
    I strongly oppose Senate Resolution 398, the resolution 
purporting to censure President Bush during the foreign 
intelligence surveillance program. Now, let me just briefly 
mention three reasons for my opposition.
    First, I do not believe that the Constitution authorizes 
the Senate to punish the President through a mechanism other 
than impeachment. Make no mistake, censure is punishment, and 
this censure resolution aims to punish the President. Senator 
Feingold has repeatedly stated his belief that the President 
has broken the law and must be held accountable. This is done 
by punishment.
    The last time a Senator introduced a resolution to censure 
a President was in 1999, directly on the heels of the Senate 
voting to acquit President Clinton on the charges for which he 
had been impeached by the House. It was offered as a form of 
punishment because censure is punishment.
    I do not believe that the fundamental principle of the 
separation of powers and our written Constitution built on that 
principle authorize the Senate to punish the President, other 
than by means of impeachment. In 1800, the first time either 
House considered a resolution to denounce a President's 
actions, Representative William Craik, of Maryland, argued that 
the House had the power of impeachment, but not censure. The 
resolution failed.
    Many claim historical precedent for punishing the President 
through censure in the resolution introduced by Senator Henry 
Clay--I have got a copy of that--passed on March 28, 1834. That 
resolution addressed President Andrew Jackson's actions 
regarding the Bank of the United States. I have that resolution 
right here, copied from the original journal of the Senate. It 
is one sentence long. It states the Senate's opinion that 
President Jackson, quote, ``has assumed upon himself authority 
and power not conferred by the Constitution and laws, but in 
derogation of both.''
    I know that nearly everyone refers to this as a censure 
resolution, but it says nothing of the kind. This resolution, 
unlike the one before us today, never uses the words 
``censure'' or ``condemn.'' It expresses the Senate's opinion 
about the President's action, but does not even purport to 
punish the President. Three years later, the Senate voted to 
reverse itself and to expunge this resolution from the record.
    The official U.S. Senate website describes this 1834 
resolution and while it does, I think, mistakenly refer to this 
as a censure resolution, our own Senate website states 
unequivocally that this resolution was, quote, ``totally 
without constitutional authorization,'' unquote. I have that 
page right here in my hand, printed directly from the Senate 
website, stating that the 1834 resolution was totally without 
constitutional authorization.
    Now, if a resolution not even purporting to punish or 
censure the President is without constitutional authorization, 
how can one which would explicitly punish the President by 
censuring him and condemning his actions have constitutional 
    There are other constitutional objections to such an effort 
to punish the President through censure. I ask unanimous 
consent to submit for the record an article by Victor Williams, 
law professor at the University of Tampa, arguing that the 
attempt to censure President Clinton was unconstitutional.
    Is that OK, Mr. Chairman?
    Chairman Specter. So ordered.
    Senator Hatch. Mr. Chairman, even if this serious 
constitutional concern did not exist or can somehow be waved 
aside, my second concern is with the content of this censure 
resolution. The statements offered to support the conclusion of 
censure are not established facts at all, but at best highly 
debatable propositions, and some of the statements made here 
today are highly debatable.
    This resolution states as fact propositions about which 
there is very real and very public debate. These include the 
legal basis President Bush has claimed for his foreign 
intelligence surveillance program, including the extent of his 
inherent constitutional authority and the effect of Joint 
Senate Resolution 38, the authorization for use of military 
    The resolution asserts that a statute, the Foreign 
Intelligence Surveillance Act, trumps the President's inherent 
constitutional authority as commander in chief. In addition, 
this resolution makes very serious claims about President 
Bush's personal motives and even his integrity. It claims that 
President Bush actually misled the public, that he made false 
implications and inaccurate statements even in his State of the 
Union Address.
    Now, Senator Feingold, of course, is free to believe these 
things about the President and to state his belief publicly. He 
has spoken to that end on the Senate floor. But this 
constitutionally suspect effort to punish the President by 
censure rests on premises which are at best highly debatable 
and, at worst, misleading or even false.
    Finally, Mr. Chairman, even if concerns about this 
resolution's constitutional legitimacy and content can be 
avoided, I remain very concerned about its timing and effect. 
The United States is at war. Our President has taken considered 
and measured steps that I believe are consistent with the law. 
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 
    When the Senate turned aside the 1999 censure resolution 
directed at President Clinton, our colleague and later Attorney 
General John Ashcroft made a point which captures my concern 
about the resolution before us today. Senator Ashcroft was 
certainly a strong critic of President Clinton. He voted to 
convict and remove President Clinton from office. Yet, he said, 
``The Constitution recognizes that if a President cannot be 
removed through impeachment, he should not be weakened by 
censure,'' unquote. I agree.
    Partisanship may be at a fever pitch around here these 
days, but wartime is not a time to take steps that may weaken 
the commander in chief, especially since there are many 
arguments that I think are valid arguments that are made on 
behalf of what the President has done. To discuss this and to 
work on it and to work as the distinguished Chairman has done 
in trying to come up with statutory language that any President 
may want to follow, I think, is a noble effort and we ought to 
all consider it on that basis and quit trying to score 
political points.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Specter. Thank you, Senator Hatch.
    Would any other member of the Committee care to make an 
opening statement?
    Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Well, I would like the opportunity, Mr. 
    The national spasm over the NSA wiretaps has had its run 
and I would have thought it would be at rest by now. This is 
now the fourth hearing we have had on the subject. The 
President has clearly stated his legal basis for what he 
thought justified his actions and he acted only after DOD 
lawyers and other lawyers had reviewed and approved the 
program. He has demonstrated that he has kept the responsible 
leaders of the House and Senate informed on the NSA system that 
has been operating.
    Twelve to fifteen of our National leaders of the Congress 
were informed on this matter, including Tom Daschle, Harry 
Reid, Nancy Pelosi, and others. Not one of them objected. Some 
say Senator Rockefeller objected, but he simply wrote a letter 
that did two things. First, the letter said that he was well 
aware of the program, as were all of the members who were 
briefed, and that he did not ask for any more briefings or 
consultations or explanations from the professionals or 
lawyers, and he did not ask that the program be stopped.
    After 9/11, we knew we had been attacked by sleeper cell 
terrorists. We did not know how many more such sleeper cells 
were in our country and what other targets they had in mind. No 
one knew. We knew one thing. We knew we did not know about this 
attack that killed almost 3,000 Americans. It was a surprise. 
We concluded we needed more and better intelligence, and we had 
a national discussion of that.
    The NSA intercept program, however it works technically, 
without doubt has the capability to help us locate persons that 
could identify other sleeper cells that may exist in our 
Nation, cells who may be capable of inflicting the most 
grievous wounds on our country. And that remains true to this 
    All of this has been openly discussed, and discussed in 
even more detail in the appropriate intelligence committees. 
There is no serious contention that the program should stop as 
the facts have been better understood, such as the fact that 
the calls involved are international calls. Concern in the 
Congress and of our people has drastically abated from the 
hysteria after the first announcement in a most serious breach 
of security that revealed the nature of this critical program.
    So I would suggest we had better spend our time 
investigating how top secret programs such as this, a program 
fully shared with congressional leaders, was breached and 
provided to the media and revealed throughout the world.
    I just returned from my fourth trip to Iraq. We met many 
soldiers there who are at risk this very day trying to protect 
America, and they fight everyday to help the people of Iraq 
create a safe and decent government against attacks by the same 
terrorists who attacked us. Not one of those soldiers asked 
that I should censure the President, nor did they ask that 
House and Senate leaders, bipartisan leaders who had the 
program explained to them in detail, and its operation updated 
to them on many occasions, be censured.
    Why not censure the congressional leaders? We have power to 
censure them. That is constitutional. Why don't we send them to 
the Ethics Committee? The answer is they did nothing wrong. The 
President did nothing wrong. They did nothing worthy of 
censure. As Senator Hatch said, it is just not an appropriate 
discipline of the President by the United States Congress.
    So I submit the congressional leaders and the President did 
the right thing, the lawful thing to protect our country and 
the people, as they are sworn to do. Our President is an honest 
man. He is a candid man, a direct man, a strong leader, and the 
people of America know it.
    So this hearing, I think, is beyond the pale. This notion 
of censure is irresponsible. It is irresponsible because it is 
not well-founded in the Constitution, as Senator Hatch has 
demonstrated, and it has the potential to send abroad 
throughout the terrorist community and to those who are 
watching our resolve around the world, a very perverse and 
false message. It could suggest that the man who was elected 
President by a substantial majority might be unable to carry 
out the policy of our country, or that opposing political 
forces might block his ability to effectively wage the war on 
terrorism, both of which are false, both of which make the job 
of our soldiers and diplomats harder and place them at greater 
    It is time for some in this Congress to get over it. We 
have established a national policy against terrorism. We have 
committed the lives and fortunes of our soldiers to that 
effort. We can and we must be successful. Even if one disagrees 
with the decisions that have been made, they have been made and 
are being executed by the finest military and State Department 
personnel our Nation has to offer. Let's not play games with 
their lives.
    The President is leading in a time of war, so are the 
congressional leaders. This motion for censure is clearly 
inappropriate and I dissent, if anyone would doubt otherwise.
    Chairman Specter. Any other Senator care to make an opening 
    Senator Graham.

                       OF SOUTH CAROLINA

    Senator Graham. I thought he was on the fence there until 
the end. Thank you, Senator.
    Thank you, Mr. Chairman, for, one, holding this hearing. 
You know, this is a democracy. You just throw it out in the 
open and you talk about it. As to Senator Feingold, I would 
like to amend my previous statements. I have known him a long 
time and I do respect him and he does call it as he sees it, 
and we just disagree here.
    I was involved in impeachment. I am probably not the best 
guy to talk about it. I am 0 for 1, and that is the way it 
works. But I know how stressful it was back then. I know what 
the Senate went through. I wasn't a member of the Senate. I 
know what you all went through over here. It was very 
difficult, and being part of the House team, I know it was 
difficult there.
    I openly talked about censure as sort of a middle ground 
when it came to impeachment. It just didn't quite go anywhere, 
but I thought that was appropriate, and everyone had their say 
about impeachment. I remember very much Senator Feingold being 
one of the more open-minded people about it.
    The difference here is we just see it differently, and that 
is why we need to have this hearing. The idea of censuring the 
President for surveiling the enemy after notifying Congress, to 
me, is way beyond what would be appropriate and would have the 
effect of killing the program. I think that would be a very big 
mistake for our country to kill this program because it is, in 
my opinion, necessary in the war on terror to find out what the 
enemy is up to. And this seems to be a reasonable way to find 
out what they are doing as long as the program has 
constitutional checks and balances, and I am a big believer 
that it can survive with those constitutional checks and 
    Senator Feingold sees this as an obvious violation of the 
law by the President deserving rebuke. I do not see it that way 
at all. I see it as a confusing, uncertain area of the law that 
deserves thought and collaboration. The Hamdi case, I believe 
is the name of the case, where Justice O'Connor argued that the 
use of force resolution would allow the detention of an enemy 
combatant because the Congress, by authorizing force to be used 
against Afghanistan, justified the ability of the President to 
hold somebody that was caught in that way as an express 
authorization by the Congress.
    The other argument that is on the table, Mr. Chairman, is 
the inherent authority of the President. His enumerated powers 
under Article II would give him as commander in chief the 
inherent authority to do things necessary to wage war. Well, 
one of those things necessary is to follow the enemy. I don't 
think anyone doubts that part of fighting a war is to do 
surveillance and monitoring of enemy movements and enemy 
    The problem is that you have got a preexisting FISA statute 
that says when an American citizen may be involve here in the 
United States with foreign intelligence activities, FISA 
becomes the exclusive remedy. You have a court of appeals case 
that says FISA is a peacetime statute. Once you are in a 
shooting war environment, we don't know if FISA has the same 
application. Those are really tough issues.
    The Chairman has an approach on how to get this balance. I 
have got an approach. I think the approach the Chairman has 
taken and I have taken is constructive. I think censure is 
destructive. I think censure breaks us apart at a time we need 
to be brought together.
    Here is what I would like us to rally around: the need for 
the program is real, the legal authority for the program is 
enhanced if it is between the executive and legislative. If we 
could get on the same sheet of music, this program is stronger, 
not weaker.
    I agree with Senator Sessions. I think the President is an 
honest man and very committed to his way of doing business and 
he should be a strong commander in chief. Here is where I 
disagree: I believe, instead of using the inherent authority 
argument, the administration would be well served to reach out 
to the Congress and see if we can't--and if we fail, we fail--
come up with a program the Congress could statutorily sanction, 
because I think we are stronger legally and militarily when we 
act in concert with each other.
    So my two cents worth to the body is let's try to find out 
some solution to this real problem that will make us stronger 
as a Nation, and I don't believe censure takes us in that 
direction. I believe collaboration will, and with that said, 
Mr. Chairman, I look forward to the debate.
    Chairman Specter. Thank you, Senator Graham.
    Senator Cornyn, you indicated an interest in making an 
opening statement. You may proceed.


    Senator Cornyn. Thank you very much, Mr. Chairman. Mr. 
Chairman, you have a reputation, well deserved, of being 
scrupulously fair and independent, and I come to this hearing 
with some sense of ambivalence. One, I agree with some of the 
sentiments expressed that if a Senator feels strongly enough 
about a matter that they file something of this nature, we 
ought to look at it and we ought to talk about it.
    I say that at the same time that I feel that this motion 
for censure is completely without merit, and it is, I think, 
somewhat indicative of the meritlessness of the motion that 
Senator Feingold's motion has been cosponsored by only two 
members of his political party and everyone else seems to have 
run for cover.
    But here we are, and I think the American people would be 
also justified in thinking that the atmosphere in Washington, 
D.C. is surreal when it comes to the global war on terror and 
how we conduct our business and how we spend our time.
    While there were those who initially expressed some doubt 
as to the legality of the President's actions and his 
authority, you have conducted a number of different hearings, 
including with some judges who serve on the FISA court. The 
Chairman has noted a number of circuit court opinions which 
have reached the same conclusion that many of those judges did, 
and that is that the President's authority is not exclusively 
derived by a statutory grant from Congress under the Foreign 
Intelligence Surveillance Act. That would be a rather strange 
proposition to argue that indeed one branch of the Government 
is somehow limited in its authority by a grant of authority 
from another branch when, in fact, each derive their powers by 
the Constitution itself.
    No one has suggested, to my knowledge, that this program be 
stopped. Senator Sessions mentioned that a number of people 
have been briefed on this program. I agree it should not be 
stopped. It is saving American lives and it is allowing us to 
fight and win the global war on terror. And it would be ironic 
indeed if Congress were to pass an authorization for the use of 
military force and say that we ought to locate, capture, detain 
and even kill the enemy, but we can't listen to their telephone 
calls that come from overseas to the United States. That, I 
think, contributes to the surreal atmosphere.
    I guess, you know, when I was looking this morning at one 
of the witnesses that is going to be testifying that is selling 
a book and that is a convicted felon, it strikes me as very odd 
that the Judiciary Committee is giving some audience and 
opportunity to somebody under those circumstances as part of 
their marketing efforts.
    We have had a lot of very serious witnesses who have 
expressed their opinion about the law, and this is a Committee 
full of lawyers and we can all have different views of the law 
and that doesn't surprise anybody who is a lawyer. But I think 
I have tried to explain why I come to this hearing with some 
sense of ambivalence, and I believe that the American people 
would view what we are about here as part of the surreal 
atmosphere that they believe, and sometimes correctly so, is 
completely out of touch with the rest of the United States.
    Thank you.
    Chairman Specter. Thank you, Senator Cornyn.
    For the record, it ought to be noted that Senator Feingold 
was given the opportunity to name witnesses. He chose to bring 
two, and the individual you referred to was his selection and 
my judgment was that he should be accorded that standing. And 
if someone cared to make the comment about the credibility or 
background, as you have, that would be appropriate too. Let it 
all hang out.
    We now turn to our panel of witnesses. Our first witness is 
Professor Robert Turner, a professor in the University of 
Virginia's Woodrow Wilson Department of Government and Foreign 
Affairs, author or editor of a dozen books on international or 
constitutional law. He was counsel to the President's 
Intelligence Oversight Board from 1981 to 1983; a bachelor's 
degree from Indiana and a law degree from the University of 
    Thank you very much for joining us this morning, Professor 
Turner, and we look forward to your testimony.


    Mr. Turner. Thank you, Mr. Chairman. It is a pleasure to be 
here. I have a short statement which I would propose to submit 
for the record at this time--
    Chairman Specter. Without objection, your statement will be 
made a part of the record.
    Mr. Turner [continuing]. That relies heavily upon the 
longer statement I gave on February 28th in the hearing which 
gives the footnotes, and so forth, that will support it.
    Briefly summarized, Senator Feingold's Senate Resolution 
398 seeks to censure the wrong lawbreaker. The President did 
not break the law. Every wartime President, even every wartime 
leader going back to George Washington when he authorized the 
opening of British mail coming into the United States during 
the American Revolution, has done this kind of behavior. It is 
essential to the successful conduct of war. Congress, in the 
wake of Vietnam, broke the law, not a statute, but the 
Constitution, in going after the President's control of foreign 
intelligence. That was one of many acts that usurped 
Presidential power.
    As I documented in my testimony last month, the Founding 
Fathers knew that Congress could not keep secrets, and thus 
they gave the general management of the Nation's foreign 
intercourse, especially foreign intelligence-gathering, to the 
    In 1776, Benjamin Franklin and his unanimous Committee of 
Secret Correspondence decided they could not tell the 
Continental Congress about a secret, covert operation because, 
and I quote, ``We find by fatal experience that Congress 
consists of too many members to keep secrets.'' In explaining 
the new Constitution to the American people during the 
ratification debate in 1788, John Jay, who became our first 
Chief Justice, praised the Constitution in Federalist No. 64 
for having left the President, and again I quote, ``able to 
manage the business of intelligence as prudence might 
    The constitutional basis of this important grant of power 
is found not just in the Commander in Chief Clause, but more 
importantly in Article II, section 1, which grants to the 
President the executive power of the Nation. Having been raised 
on the writings of Locke, Montesquieu and Blackstone, the 
Framers shared their belief that the Nation's external 
relations were part of the executive power, and this was 
embraced very clearly by the major players of the era.
    In my earlier testimony, I gave examples with footnotes to 
statements by, among others, President George Washington, who 
was also President of the Constitutional Convention; 
Representative James Madison, often called the Father of the 
Constitution; Secretary of State Thomas Jefferson; Treasury 
Secretary Alexander Hamilton, like Madison an author of the 
Federalist Papers; Chief Justice John Jay, the third Federalist 
Papers contributor; Representative John Marshall, later Chief 
    Thus, the leaders of both political parties of the era and 
all three authors of the Federalist Papers agreed that the 
executive power grant gave the President the general management 
of the Nation's foreign affairs. The National Security Act of 
1949 made no provision for congressional oversight. There are 
references to it here. They really ought to say ``as amended,'' 
because in 1949 Congress in writing this saw no need, saw no 
propriety for congressional oversight of intelligence 
    The 1968 Crime Control and Safe Streets Act recognized that 
the President had independent constitutional authority for 
national security foreign intelligence wiretaps and expressly 
excluded them from its coverage. When FISA was first enacted in 
1978, former appeals court judge Griffin Bell, then Jimmy 
Carter's Attorney General, told the Committee that FISA could 
not take away the President's independent power to collect 
foreign intelligence.
    The FISA Court of Review that Congress set up in 1978 noted 
in 2002 that every Federal court that has considered this issue 
has found the President has independent constitutional 
authority to do this. And the court went on to say, ``We assume 
that is true, and if it is true, that power cannot be taken 
away by FISA.''
    In Marbury v. Madison, perhaps the most famous of all 
Supreme Court cases, Chief Justice John Marshall noted that the 
President is given certain important political powers under the 
Constitution which are to be used at his discretion. And he 
noted, and I quote, ``Whatever opinion may be entertained of 
the manner in which executive discretion may be used, still 
there exists, and can exist, no power to control that 
discretion.'' Neither the courts nor the Congress can tell the 
President how to govern the collection of foreign intelligence 
during wartime.
    Indeed, President Bush is not above the law, but in our 
country we have a hierarchy of laws in which the Constitution 
is supreme. Because of that, John Marshall noted in Marbury v. 
Madison, and again I quote, ``An act of the legislature 
repugnant to the Constitution is void.''
    My conclusion is the President has broken no constitutional 
law, but Congress in the wake of Vietnam broke many, with 
terrible consequences. I strongly recommend that the Committee 
rewrite the resolution to censure the post-Vietnam Congress 
which violated its oath of office of its members, undermined 
our security and contributed directly to the consignment to 
communist tyranny in Indochina of tens of millions of people we 
had promised to defend and to the slaughter of millions of 
    I think the President's actions are also justified under 
the AUMF, but I don't have time for that. I will be happy to 
take it up in questions. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Turner appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Turner.
    We now turn to Mr. Bruce Fein, of the consulting firm of 
Fein and Fein. His experience in Government was as research 
director for the Joint Congressional Committee on Covert Arms 
Sales to Iran, general counsel to the FCC under President 
Reagan, and assistant director of the Department of Justice's 
Office of Legal Policy from 1980 to 1983. He is a graduate of 
the University of California for a bachelor's degree and 
Harvard Law School, cum laude.
    Thank you for joining us today, Mr. Fein, and the floor is 


    Mr. Fein. Thank you, Mr. Chairman. I would like my complete 
statement submitted for the record.
    Chairman Specter. Without objection, it will be made a part 
of the record, as will all the statements submitted to the 
    Mr. Fein. On September 17, 1787, Dr. Benjamin Franklin 
emerged from the Constitutional Convention which had fashioned 
the document that has lived ever since as a testament to what 
free minds can do in crafting democratic dispensations. He was 
approached by an elderly lady and asked, Dr. Franklin, what 
have we got, a monarchy or a republic? And he retorted, a 
republic, if we can keep it.
    Now, there are two features of the current crisis with 
President Bush's assertion of inherent constitutional authority 
that I think are unprecedented. No. 1, these are wartime powers 
that have no ending point. There is no benchmark to suggest the 
time when the war against international terrorism will 
conclude, and therefore the President's assertions of powers 
have to be taken as permanent changes on the political 
landscape on checks and balances.
    The second feature relates to the scope of the battlefield. 
The President has said that since Osama bin Laden and al Qaeda 
have threatened to kill any American, anytime, anyplace, 
anywhere, then all of the world is a battlefield, justifying 
battlefield tactics. There is no difference in the President's 
authority to shoot on the streets of Kandahar, Kabul or Baghdad 
as opposed to the street outside of Domino's Pizza.
    These are the kinds of extravagant claims I suggest that 
require a very close attention to the legal theories that have 
been advanced to justify the warrantless surveillance program 
in secret for over four-and-a-half years. You can lose a 
republic on the installment plan every bit as efficiently as at 
one fell swoop with a coup d'etat.
    The censure of the President for official misconduct, for 
alleging failing to faithfully execute the laws, seems to me no 
different than a species of congressional oversight of an 
executive program that concludes with a report harshly critical 
of the President or his subordinates, something similar to the 
majority report that culminated the hearings into the Iran-
contra affair. If Harry Truman can run on a do-nothing-Congress 
platform, I see no reason why Congress cannot run on a 
wrongdoing-President platform.
    Now, of course, every dispute between Congress and the 
Executive over legal interpretation should not occasion 
censure. The President should not be intimidated from making 
assertions of authority that he in good faith thinks are 
legitimate. But it seems to me there is a convergence of 
several factors that make his claim regarding the legality of 
the warrantless surveillance program something that justifies 
    First, President Bush's intent was to keep the program 
secret from Congress forever. The New York Times published the 
program. He has now got a grand jury investigating whether it 
violated the Espionage Act, but his hope was to escape 
political and legal accountability forever, if he could do so.
    As history teaches, sunshine is the best disinfectant. Even 
Presidents with good motives regularly overreach. The Church 
Committee hearings exposed 20 years of illegal mail-openings by 
the CIA and FBI, 20 years of illegal intercepts of 
international telegrams, years of the misuse of the National 
Security Agency for international criminal purposes rather than 
foreign intelligence purposes. All these abuses occurred 
because there was no sunshine. This was all concealed from 
Congress. That aggravates, I think, the President's conduct in 
this situation.
    Now, it is said that the President could not alert Congress 
without exposing intelligence sources and methods, alerting the 
enemy to means of evasion that would frustrate the war against 
international terrorism that we all want to win. That seems to 
me clearly a specious argument. If the President informed 
Congress in the aftermath of 9/11 that he was undertaking a 
program of surveillance outside of FISA and he wanted Congress 
to know that and to consider it, that information by itself 
does not disclose intelligence sources. It does not disclose 
intelligence methods and it would not for the first time alert 
al Qaeda that we are trying to spy on them. They had known that 
at least since 1978 and they are not slower learners.
    Second, President Bush's secrecy regarding the program 
makes it impossible to evaluate its reasonableness under the 
Fourth Amendment. One of the touchstones of that provision is 
whether or not the Government is engaged in a fishing 
expedition just hoping something will turn up or whether or not 
the Government is employing reasonably particularized standards 
for targeting searches and seizures that actually have the 
likelihood of turning something up that is useful.
    The fact is, Mr. Chairman and members of the Committee, no 
one knows what the success rate is of these warrantless 
surveillance programs targeting American citizens on American 
soil. Nobody knows the number of Americans targeted. Nobody 
knows whether the targeting has revealed anything useful. 
Nobody knows exactly why it is that the Americans were 
targeted. There may be good reasons, but you are foreclosed 
from making an intelligent assessment of Fourth Amendment 
reasonableness when all of this is like a black hole.
    Third, President Bush's interpretation of the authorization 
to use military force, I suggest, is not just wrong, but 
preposterous. Not a single member of the Congress--
    Chairman Specter. Mr. Fein, you are a minute over. Could 
you summarize at this point, please?
    Mr. Fein. Yes. I would suggest that no one in Congress 
contemplated that interpretation, and for the executive branch 
to come up with that theory four-and-a-half years after the 
fact smacks of a surprise O. Henry ending.
    The last observation I would make, Mr. Chairman, is that 
checks and balances are at the heart of our system of liberty. 
It is what you might call the procedural equivalent of the Bill 
of Rights, and that is why it is so important to leave them 
undisturbed before we have a second 9/11, before new stresses 
may cause the program to expand even further.
    Thank you.
    [The prepared statement of Mr. Fein appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Fein.
    We now turn to Mr. Lee Casey, partner at the law firm of 
Baker and Hostetler here in Washington. He specializes in 
issues of the Constitution, election, and international and 
regulatory law. He served in the Department of Justice's Office 
of Legal Counsel from 1992 to 1993, and the Office of Legal 
Policy from 1986 to 1990. He serves as adjunct professor of law 
at George Mason University.
    Thank you for coming in today, Mr. Casey, and the floor is 


    Mr. Casey. Thank you, Mr. Chairman. Unlike my colleagues, 
this is the first time I have ever testified before this 
Committee and I do want to say that I consider it an honor to 
have been asked.
    Let me begin by saying that censuring President Bush over 
the NSA program would be a severe miscarriage of justice. When 
he authorized the NSA to intercept al Qaeda communications into 
and out of the United States, the President was fully within 
his constitutional and statutory authority. He did not break 
the law and there is no evidence that he has in any way misused 
the information collected. This is not Watergate.
    The President's critics have variously described the NSA 
program as widespread, domestic and illegal. It is none of 
these things. It is targeted on the international 
communications of individuals engaged in an armed conflict with 
the United States and it is fully consistent with FISA.
    In assessing the President's actions here, it is important 
to highlight how narrow is the actual dispute over the NSA 
program. Few of the President's critics claim that he should 
not have ordered the interception of al Qaeda's global 
communications or that he needed the FISA court's permission to 
intercept al Qaeda communications abroad. It is only with 
respect to communications actually intercepted inside the 
United States or where the target is a United States person 
that FISA is relevant at all to this National discussion.
    Since this program involves only international 
communications where at least one party is an al Qaeda 
operative, it is not clear that any of the intercepts would 
properly fall within FISA's terms. This is not the pervasive 
dragnet of American domestic communications about which so many 
of the President's critics have fantasized.
    The administration has properly refused to publicly 
articulate the full metes and bounds of the NSA program. Let us 
assume, however, that some of the intercepts are subject to 
FISA. As the Department of Justice correctly pointed out in its 
January 19, 2006 memorandum, FISA permits electronic 
surveillance without an order if it is otherwise authorized by 
statute. The NSA program was so authorized.
    The September 18, 2001 authorization for the use of 
military force permits the President to use all necessary and 
appropriate force against those responsible for September 11th 
in order to prevent any future acts of international terrorism 
against the United States. The Supreme Court has already 
interpreted this grant to encompass all of the fundamental 
incidents of waging war.
    In Hamdi v. Rumsfeld, the Court considered and rejected the 
argument then being advanced with respect to the Non-Detention 
Act that the September 18th authorization permitted only those 
types of force not otherwise specifically forbidden by statute. 
The monitoring of enemy communications, whether or not within 
the United States, is as much a fundamental and accepted 
incident to war as is the detention of captured enemy 
combatants. Indeed, it is only through the collection and 
exploitation of intelligence that the September 18th 
authorization can be successfully implemented.
    However, even in the absence of that law, the NSA program 
would fall within the President's inherent constitutional 
authority. The courts, including FISA's own Foreign 
Intelligence Surveillance Court of Review, have consistently 
recognized and respected this authority. In 2002, that court 
specifically noted that all the other courts who have decided 
the issue held that the President did have inherent authority 
to conduct warrantless searches to obtain foreign intelligence 
information, and that we take for granted that the President 
does have that authority. And assuming that is so, FISA could 
not encroach on the President's constitutional power.
    Of course, the Supreme Court has never considered whether 
FISA may have improperly trenched upon the President's 
authority. The test will be whether it impedes the President's 
ability to perform his constitutional duty. If FISA were 
construed to prohibit the President from monitoring enemy 
communications in the United States without judicial approval, 
then the statute would be invalid. It need not and should not 
be so interpreted.
    Obviously, there are many who disagree with this analysis. 
Few questions of either constitutional or statutory 
interpretation cannot be honestly debated. However, to censure 
the President because his view is inconsistent with that of one 
or more members of the Senate would be improvident and 
irresponsible. It amounts to an effort to punish not merely 
policy differences, but differences over legal arguments, and 
it is just plain wrong.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Casey appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Casey.
    We now turn to Mr. John W. Dean III, White House Counsel to 
President Nixon from July 1970 to April 1973; a bachelor's 
degree from the College of Wooster and a law degree from 
Georgetown Law School. He had served as chief minority counsel 
to the House Judiciary Committee. He worked subsequent to 
leaving Government as an investment banker and he has authored 
a number of books.
    Mr. Dean, welcome to the witness table and the floor is 

                         RICHARD NIXON

    Mr. Dean. Thank you, Mr. Chairman. My qualifications for 
addressing the Committee, I think, were alluded to by the 
Senator from Texas, who is no longer here, and I think it is 
important that the Committee sometimes hear from the dark side; 
that those of us from that perspective can add some insights 
that might not otherwise be available to a body like this.
    I must say I think I have probably more experience 
firsthand than anybody might want in what can go wrong and how 
a President can get on the other side of the law. Obviously, I 
refer to my experience at the Nixon White House during 
    In addition to my firsthand knowledge of what can go wrong 
in a White House, I have spent the last some three decades 
studying Presidents past and present. And I am not here to sell 
a book today, but I did write a book that gave me additional 
insight. Indeed, the book I am going to be publishing soon that 
mentions the Senator from Texas will not be out until this 
    No President that I can find in the history of our country 
has really ever adopted a policy of expanding Presidential 
powers for the sake of expanding Presidential powers, and I 
think that is what we have going on in this presidency. It was 
the announced objective of the Bush-Cheney presidency from the 
very outset and it has been pursued at every turn, on every 
issue, on any matter from a dispute with the General Accounting 
Office to now how they pursue their NSA program. Rather than 
come to Congress and even seek approval, they want to do it 
without approval. That is very unique. For example, Abraham 
Lincoln, in his very strenuous violations of many laws and 
constitutional provisions, came back to Congress and asked for 
permission. That isn't the case here. We have a President who 
doesn't want to do that.
    In looking at the issue of censure, per se, I am sure this 
Committee, in particular, is intensely aware of what happened 
during the Clinton impeachment, when it was well debated. It 
was debated by Members of the House and the Senate. It was 
debated by constitutional scholars, political commentators, and 
the common denominator that came out of that debate, I think, 
was that everybody basically agreed that censure is a political 
    I looked at the historical collection that I could find on 
that issue and it seems that those who have looked at 
historical--some four clear instances, with John Quincy Adams, 
Andrew Jackson, John Tyler and James Buchanan--those are the 
four leading precedents for censure and all were motivated by 
partisan political activity.
    I find no constitutional question that the Congress has the 
power to grant impeachment. I have read debates on both sides. 
I read a lot of the material during the Clinton impeachment. 
This Committee is very familiar with Professor Michael 
Gerhardt's work, and he certainly, looking at everything from 
provisions within the Constitution where the House and Senate 
are able to keep their own journals, to the First Amendment, 
said there is just no prohibition in the Constitution that 
would prohibit a censure.
    Now, why a censure is a better question. To me, this is not 
really and should not be a partisan question. I think it is a 
question of institutional pride of this body, of the Congress 
of the United States. What has happened is particularly since 
1994--and it didn't happen during the Clinton presidency, but 
there has been a growing tendency--and I started my career on 
Capitol Hill--to let the President do what he wants and to have 
virtually no oversight.
    I can tell you from the other side of Pennsylvania Avenue 
that that is very important to Presidents. They take note of 
that when they are not being called to the mat. They push the 
envelope as far as they can. Richard Nixon was proud in 
throwing down the gauntlet at this body and felt it important 
that he do so.
    So I think impeachment is premature. I think censure, which 
need not be political by any stretch of the imagination--in 
fact, if it carries too much political baggage, it can always 
be a resolution that is worded in some softer terms to make 
clear that the Congress itself is not waiving its power to step 
into these issues, because at some point as I track the 
constitutional law--and I put some of that in my formal 
statement--there is a waiver that occurs. And a censure, 
appropriately worded, is the answer to that.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dean appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Dean.
    Our final witness is Mr. John Schmidt, a partner with 
Mayer, Brown, Rowe and Maw. He had been a visiting scholar at 
Northwestern University School of Law, governmental service as 
Associate Attorney General of the United States during the 
administration of President Clinton from 1994 to 1997, and was 
Ambassador and chief U.S. negotiator for the Uruguay Round 
under the General Agreement on Tariffs also in the Clinton 
administration from 1993 to 1994; magna cum laude, Harvard 
College, cum laude at Harvard Law School.
    Thank you for coming in today, Mr. Schmidt, and we look 
forward to your testimony.


    Mr. Schmidt. Thank you, Mr. Chairman. I am pleased to be 
here and give you my views on this issue. As your introduction 
indicates, I come at this from the perspective of having served 
in the Justice Department under a Democratic President, Bill 
Clinton, and I have a lifetime of activity as a Democrat, 
including serving as chief of staff to a Democratic mayor of 
Chicago. So I don't have any partisan bias in favor of 
President Bush on this issue.
    I nevertheless feel very strongly that any consideration of 
censure of the President for authorizing the NSA program is 
completely unwarranted and inappropriate, and it seems to me to 
really demean and undermine the kind of serious discussion of 
this issue which we should be having.
    My own legal judgment, which I set out publicly right after 
the disclosure of the NSA program in an article that I attached 
to my statement, was and is that the President had the 
authority under Article II of the Constitution to authorize the 
NSA program, notwithstanding the fact that it was and is 
inconsistent with the terms of the Foreign Intelligence 
Surveillance Act.
    To me, that comes down to two propositions. The first is 
setting aside anything Congress might have done, the President 
has the inherent authority under Article II to order 
surveillance of a foreign power, whether it is a terrorist 
group or a nation, that is active in this country. As was 
indicated, the Supreme Court left that question open back in 
1972, but we have three court of appeal decisions that have 
said clearly the President has that authority.
    The further question is can Congress take that inherent 
authority away from the President. I think the answer to that 
is no. We have less authority on that, but we have one judicial 
statement which has been alluded to and that is the 2002 
opinion of the Foreign Intelligence Surveillance Court of 
Review which looked at the issue, looked at the case law I was 
just describing and said it took for granted that the President 
has the constitutional authority to order warrantless 
surveillance for intelligence purposes. And assuming that is 
true, Congress could not encroach upon that Presidential power. 
That is the same quote that was quoted earlier and it is one 
that deserves repeating. It is dicta. It is not a holding in 
that case, but it is from three Federal court of appeals judges 
who were fully familiar with the constitutional issues 
involved, and it is the only judicial statement on this issue.
    There is a further authority, if I can call it that, that 
in my own thinking weighs heavily, and that is the position 
that was taken by Attorney General Edward Levi, who was, as you 
all know, Attorney General under President Ford. He came into 
office really to clean up the mess that Mr. Dean and his 
colleagues had left and did a magnificent job.
    Ed Levi's position was that Congress could and should 
establish a court mechanism to allow judicial approval of 
intelligence surveillance, but he was always explicit. Congress 
could not make that mechanism exclusive. It could not take away 
from the President his inherent constitutional authority to act 
in other circumstances.
    He was asked at a hearing what are the other circumstances 
where the President might act outside the confines of the FISA 
Act. He was prepared to give a letter that President Ford would 
act under the FISA Act under all circumstances he could then 
anticipate. He said I don't know, but I know the future is 
unpredictable. He said the foreign threats to this country in 
the future are unpredictable, and he repeatedly emphasized that 
technologies could change.
    It seems to me he had it exactly right, and what happened 
after 9/11 was we faced a type of a threat, a serious terrorist 
attack in this country we had never faced before. The 
President, according to what he has said and according to what 
General Hayden has said, went to the NSA and said can you come 
up with a program that will be more effective in trying to get 
information on where and when they may attack again?
    The NSA said we can; we can do something under current 
technologies, but we can't do it under the confines and within 
the current FISA process. Under those circumstances, it seems 
to me the President had, should have, needs to have the 
constitutional authority to authorize that program.
    As was quoted earlier, when FISA actually passed Attorney 
General Griffin Bell, who was then in office, said the Act 
cannot take away the President's inherent constitutional 
authority in this area. But, you know, if you assume all that 
wrong--I am wrong and Attorney General Levi was wrong and the 
Foreign Intelligence Surveillance Court of Review is wrong--I 
still cannot conceive of a basis for censure of the President 
under these circumstances.
    There is no evidence that the President did anything but 
authorize in good faith a program which he believed was 
necessary to protect the country. There is no evidence that he 
did anything but rely in good faith on the legal advice he 
received from the Justice Department and other lawyers in the 
Government. Under those circumstances, to censure the President 
seems to me to be simply wrong and to have no justification.
    I do think there is reason to think seriously about 
legislation in this area to establish a court process to 
approve this kind of program. But to talk about censuring a 
President for acting in good faith to authorize a program based 
on the good-faith legal advice he received seems to me to be 
irresponsible and really a disservice to the serious discussion 
of these kinds of issues.
    [The prepared statement of Mr. Schmidt appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Schmidt.
    We now come to the portion of our hearing where the 
Senators will question, and in accordance with our practice we 
will have 5-minute rounds.
    The two witnesses requested by Senator Feingold, Mr. Fein 
and Mr. Dean, have given us the opposite ends of the poles. Mr. 
Fein wants sunshine and Mr. Dean wants to turn to the dark 
    Mr. Dean. I want to report on the dark side.
    Chairman Specter. I was looking for the comments on bad 
faith or good faith, and finally we heard it from you, Mr. 
Schmidt, that there is no evidence of bad faith. It seems to me 
that before a censure resolution can get anywhere, can rise to 
the level above being frivolous, there has to be an issue of 
bad faith. Senator Feingold's resolution doesn't say a word 
about bad faith.
    Don't you think, Mr. Dean, that that is an indispensable 
prerequisite, a sine qua non, to censure the President? I note 
that your 2004 book, Worse than Watergate, called for the 
impeachment of President Bush. So you were pretty tough on him 
long before this surveillance program was noted.
    But to come back to good faith and bad faith, don't you 
think there has to be some issue of bad faith?
    Mr. Dean. In Worse than Watergate, I didn't call for 
impeachment. I laid out a case that could be made for 
impeachment. I do make a distinction.
    As far as Senator Feingold's resolution, when I read those 
``whereas'' clauses, it seems to me that there is evidence of 
bad faith. First of all, there is certainly a prime facie case 
    Chairman Specter. Mr. Dean, do you think that Senator 
Feingold would shy away from those two magic words, ``bad 
faith,'' when they are so much easier to define than the 
``whereas'' clause? I recollect his 25-minute speech on the 
floor. I wanted to ask him about bad faith and didn't get a 
chance to.
    Mr. Dean. I don't recall bad faith as being a prerequisite 
to censure.
    Chairman Specter. Well, it is not a matter of recollection.
    Mr. Dean. It is conduct.
    Chairman Specter. Don't you think that it takes bad faith 
to censure a President?
    Mr. Dean. I think in gathering my thoughts to come back 
here, I thought, you know, had a censure resolution been issued 
about some of Nixon's conduct long before it erupted to the 
degree and the problem that came, it would have been a godsend.
    Chairman Specter. Well, then the Congress was at fault in 
not giving him a warning signal.
    Mr. Dean. It would have helped.
    Chairman Specter. Let me turn to you, Mr. Fein. You have 
testified that censure is really not different from oversight. 
I have to disagree with you categorically. When we do oversight 
and call in executive branch officials and look at what they 
have done and disagree and make suggestions, I have never heard 
in an oversight hearing somebody say you ought to be censured 
for what you have done. Occasionally, you hear the word 
    But come to your central point where you say you shouldn't 
censure every legal disagreement, and you are a very good 
lawyer, Mr. Fein. You have testified before this Committee on a 
number of occasions and we don't have to engage in any extended 
discussion to note the powerful circuit opinions on executive 
authority under Article II for stealth and speed and secrecy.
    When you say that President Bush kept it secret, that is 
not so. He told the so-called Gang of 8. We have the letter 
which Senator Rockefeller wrote saying he wasn't very 
extensively informed and didn't have a lawyer with him. I 
chaired the Intelligence Committee during the 104th Congress, 
in 1995 and 1996, so I was a member of the Gang of 8 at that 
time. President Clinton was in the White House and they didn't 
tell us very much.
    I am not defending the failure to notify the intelligence 
committees, which is what the National Security Act of 1947 
calls for. But there has been a lot of precedent for just 
informing the Gang of 8, and it has been a long time that 
Congress has sat back and not insisted that Presidents, 
Democrats and Republicans alike, observe the interdiction to 
inform the committees, but that has happened.
    So before my red light goes on, Mr. Fein, I will ask you 
the question. Wasn't the Gang of 8 informed, so that there was 
not secrecy here? And don't you really have a situation where 
you have a deep-seated, complex legal issue which at least 
gives the President a basis for taking his position without 
calling him to task for censure?
    Mr. Fein. Let me make a couple of observations about bad 
faith or secrecy. One, we don't have the information, if it 
exists, indicating what advice President Bush received just 
before he commenced the warrantless surveillance program. You 
don't know, I don't know, and he is resisting giving that 
information to you that could dispel any uncertainty on such a 
critical matter. That still is secret.
    Second, with regard to informing a handful of Members of 
Congress, that is not all Members of Congress. And, of course, 
as you pointed out, we don't want the President to do things 
that would risk the national security of the United States and 
to inform in such detail that intelligence sources and methods 
could be disclosed.
    But if you are going to have accountability, you have to 
have accountability to the Congress of the United States, not 
just one or two Members, and accountability that at least 
indicates the nature of the program in sufficient detail to 
enable an assessment of its legality and wisdom. If you don't 
know how many people are being spied on in the United States, 
you don't know what the results of that are. How can you make 
an assessment as to its reasonableness?
    The purpose of informing is not just to have informing for 
its own sake. It is to have the operation of checks and 
balances at work, and it has to be done in a framework then 
that enables a collective judgment of Congress to be brought on 
the legality, the success of the program. It is still so 
secret, in my judgment, that it is still impossible for 
Congress to make that assessment at present.
    Chairman Specter. Thank you, Mr. Fein.
    Senator Leahy.
    Senator Leahy. Well, thank you. Mr. Fein, I have to agree 
on that. As I said in my opening statement, the only time we 
have actually had anybody here to testify who could answer that 
question was the Attorney General, and I finally lost count of 
the number of times he refused to answer the question in 
questions asked by both Republicans and Democrats.
    Mr. Dean, as I understand your arguments in favor of 
censure, you see it not so much as a punitive sanction, but 
rather as a way of reaffirming the separation of powers and 
preserving the rule of law for the future.
    Mr. Dean. That is correct.
    Senator Leahy. And not whether the President acted with 
malice in authorizing a secret domestic spying program, but 
whether the President has to abide by the law and must come to 
us. In other words, if the President doesn't agree with the 
law, he can't just break the law. He has to come to the 
Congress and ask to have the law changed. Is that correct?
    Mr. Dean. That is correct. There is certainly a prime facie 
basis of evidence to believe that he is not complying with the 
law. There is a healthy debate as to whether he is complying, 
and it seems to me the President shouldn't want to be in that 
position. He ought to come to Congress and say here is what I 
need to make sure I am complying with the law, but he has 
decided to use this as another vehicle to test his power.
    Senator Leahy. Well, there seems to be an evolution of his 
reasoning. Each time this stuff comes out from the White House, 
there is somewhat of a different reasoning, the latest being 
that he was somehow authorized for this spying on Americans 
because of our resolution, which I supported, to go into 
Afghanistan and get Osama bin Laden--something, ironically 
enough, they never did.
    What if we had actually declared war on Iraq or anywhere 
else? Would that have allowed the President to disobey the law?
    Mr. Dean. I don't believe so, per se. I don't think there 
is something in the Commander in Chief Clause that gives a 
preemptive right over existing statutory law. Obviously, we 
were not declared in Korea during the Youngstown case, and even 
then the President was arguing virtually unlimited authority 
and the Court made it very clear he didn't have it.
    Senator Leahy. Well, let me ask Mr. Fein on this. I mean, I 
am just trying to think about other situations where the 
President violates the law. Republicans and Democrats last 
month raised national security concerns--whether they were good 
or bad is not the issue, but national security concerns about 
the administration's approval of a deal allowing a government-
owned entity in Dubai to take over port operations in the 
United States.
    Now, here, we had a specific, express Federal statute, the 
Exon-Florio provision which requires a mandatory investigation 
that the administration is supposed to follow. They didn't 
bother to carry that out; they didn't bother to follow the law. 
Many in Congress wanted to scuttle the deal. Again, whether it 
was good or bad, we had a law that was not followed and in the 
end the deal was scuttled. Nobody called for censure there.
    Why is censure appropriate here and not there?
    Mr. Fein. Because I think the magnitude of the separation 
of powers issue is so much more momentous. The President's 
theory that he has inherent constitutional power to gather 
foreign intelligence in any way he wishes, irrespective of 
congressional statutes, means he can open our mail tomorrow if 
he says I am trying to gather foreign intelligence, despite the 
criminal prohibition. It means he can break and enter our 
homes, despite FISA's government of physical searches, because 
he says he is gathering foreign intelligence. It means he can 
torture detainees, irrespective of a Federal statute, if he 
says I am seeking to gather foreign intelligence. It has no 
stopping point and that is why the consequences of endorsing 
that theory are so much more momentous.
    I would like to say another word about the authority of 
Congress to act in this area because we are not speaking of an 
effort by Congress to usurp the President's power to gather 
foreign intelligence. Article I, section 8, clause 18, the 
Necessary and Proper Clause, grants to Congress the power to 
regulate the powers of the United States Government, no matter 
whether exercised by Congress, the executive branch or the 
judicial branch.
    The President does have inherent authority to gather 
foreign intelligence, but Congress may regulate that under the 
Necessary and Proper Clause. And all it has done in FISA is 
said because of the history of abuses disclosed by the Church 
Committee, we want a judge between the spy and the targeted 
American citizen. You can still engage in foreign intelligence 
    And then if I could just add this one final point with 
regard to the workability of FISA, on July 31, 2002, before the 
Senate Intelligence Committee, the Department of Justice of 
President Bush said FISA is working beautifully; we need no 
changes with it. What has happened since July 31, 2002, that 
has suddenly made it unworkable? If it has happened, we haven't 
been informed of it.
    Senator Leahy. Mr. Chairman, might I just follow with a 
question to Mr. Schmidt because it relates to this?
    Chairman Specter. Proceed, Senator Leahy.
    Senator Leahy. Thank you. Incidentally, I agree with what 
Mr. Fein said.
    Mr. Schmidt, you said in your statement that as far as you 
can tell, the President, quote, ``acted on the basis of 
credible legal advice,'' close quote. Who knows that? I mean, 
when we asked what the documents were, when we asked when this 
was first said, when we asked what led up to it, when we asked 
when it supposedly evolved, when all this happened, all that 
has been withheld. How in heaven's name do we know it comes 
from credible legal advice?
    Mr. Schmidt. Well, we know that both the President and 
General Hayden have said that they relied upon the advice of 
not only the Justice Department, but the lawyers within the 
National Security Agency. General Hayden has briefed Members of 
Congress. I assume he has said the same thing, and if he is 
lying, I guess he would be committing a felony.
    Senator Leahy. I am not saying that, but we don't know what 
the credible legal advice was. Nobody has talked about it, 
nobody has shown it to us, and the one person who could tell us 
what it is refuses to answer the question. Do you understand my 
    Mr. Schmidt. If you are saying you want evidence that the 
advice that you are now hearing from the Attorney General is 
the same advice he gave initially--he is, what, lying now and 
saying something that he said he said then, but he is not 
saying now? Then it seems to me you are putting him in the 
position where he is lying to Congress. So if you are saying 
you want documents to confirm that the Attorney General is not 
lying to Congress, I haven't seen those documents, but I don't 
see any reason to suspect that he is lying about it.
    Chairman Specter. Senator Hatch.
    Senator Hatch. Well, as a practical matter, Presidents 
don't give up their private counsel advice. But as you have 
very effectively pointed out, the Attorney General has appeared 
here and given the advice that they have used. This is the most 
classified program in the Federal Government. I am aware of it 
and I have to say that I think some of the arguments are not 
only fallacious, they are ridiculous.
    To come and try and say that the President has violated the 
law, come on. Presidents do have powers. There is no question 
Congress needs to do what it can to overview these matters, and 
we are doing that and we are doing it on the Intelligence 
Committee. I have appreciated the testimony of all of you. I 
don't agree with some of the things, but at least this has been 
a reasonable discussion.
    Let me start with you, Mr. Dean. On September 14, 2001, 
just 3 days after the terrorist attacks on America, you 
published an article entitled ``Examining the President's Power 
to Fight Terrorism.'' Now, in that article you argued that, 
quote, ``The President does not need congressional authority to 
respond,'' unquote.
    Mr. Dean. Right.
    Senator Hatch. You wrote that Article I, section 8, which 
gives Congress the power to declare war, quote, ``does not put 
the Congress in charge of counterterrorism, which is an 
executive function,'' unquote. You also wrote, quote, ``Yet, as 
all his predecessors realized, when it gets down to how, when 
and where to respond, the President can do whatever he feels 
necessary, whether Congress agrees or disagrees. Article II, 
section 1, has vested him with that power.''
    Now, President Bush and Attorney General Gonzales have made 
exactly the same arguments about inherent constitutional 
authority. Yet, today I hear you saying that Congress can bind 
the President's counterterrorism efforts by statute after all. 
I hear you saying that the President needs congressional 
authority to respond after all. Now, maybe I have misconstrued 
what you said. I don't want to do that.
    Mr. Dean. In the September 14th piece I wrote, what I was 
trying to do was to pull together a broad look at the powers 
the President had.
    Senator Hatch. Sure, but those are pretty explicit 
    Mr. Dean. Yes, they were.
    Senator Hatch. They seem to rebut what you are saying here 
    Mr. Dean. In fact, I cited Mr. Turner as a good source, but 
I also did not say the President had authority to violate any 
existing statute, because I don't believe he does have that--
    Senator Hatch. But you don't know whether he has violated 
any existing statute, including FISA.
    Mr. Dean. Well, as I said earlier, I believe there is 
certainly prime facie evidence that that is the case.
    Senator Hatch. I can tell you there is no prime facie 
    Mr. Dean. Well, most Presidents who have even had a doubt 
have come to Congress and asked for authority. And I am telling 
you that I believe this is a part of a very consistent, long-
term, early announced policy of this Presidency that they are 
seeking to build Presidential power for the sake of 
Presidential power.
    Senator Hatch. You have no evidence of that.
    Mr. Dean. I have lots of evidence of that, Senator.
    Senator Hatch. I don't think you have any.
    Mr. Turner.
    Mr. Turner. In fairness to the President, what they have 
tried to do--
    Senator Hatch. Your name has been used. That is why I am 
turning to you.
    Mr. Turner. They have tried to restore the balance that was 
understood from the days of John Jay and Thomas Jefferson and 
Alexander Hamilton, all of whom said that Article II, section 
1, gives the President the Executive power, which includes the 
management of foreign affairs, subject to narrowly construed 
checks vested in Congress and in the Senate, that was taken 
away following Vietnam by things like the war powers resolution 
and the Hughes-Ryan amendment, and so forth. They are trying to 
restore the constitutional balance, for which I think the 
President deserves praise.
    But also, in wartime, the idea that the President should 
sit back and say, well, I have the power to do this, it can 
save American lives, but I don't want to offend certain Members 
of Congress, so I am not going to allow the National Security 
Agency to listen when bin Laden calls some U.S. person who 
might well be a Saudi national who is totally committed to bin 
Laden's cause who lives in this country and he qualifies as an 
American under FISA--we have got considerable evidence that 
FISA contributed to 9/11.
    We know Colleen Rowley, the FBI agent who made Time's 
Person of the Year in 2002 because she was angry that the FBI 
would not get her a FISA warrant--the FBI could not give her a 
FISA warrant because Moussaoui was not an agent of al Qaeda. 
Moussaoui was a lone wolf. In 2004, Congress amended FISA to 
cover the lone wolf problem.
    We know that General Hayden, the head of NSA, now the 
deputy director of national intelligence, has said if we had 
had this program prior to 9/11, it was his professional 
judgment they could have found and identified some of the 9/11 
terrorists. He didn't follow on to say that means we might have 
stopped the attack, but that seems implicit in it.
    So a lot of harm has been done by what Congress did in the 
wake of Vietnam. The President is trying not to seize new 
power, but to take us back where this country was from 1789 to 
about 1975.
    Senator Hatch. Mr. Chairman, is it possible that I could 
just ask Mr. Schmidt one more question?
    Chairman Specter. Proceed, Senator Hatch.
    Senator Hatch. I hate to impose on you, but let me just ask 
you this question. I have questions for the rest of you, but I 
have run out of time.
    The Feingold resolution's conclusion, Mr. Schmidt, that the 
President should be punished by censure because he broke the 
law rests, I think, on a particular premise. The resolution 
states that the FISA Act trumps the President's constitutional 
authority to conduct his foreign intelligence surveillance 
program. Now, it seems to me that if this premise is even 
arguable, then this whole censure gamut fails.
    I understand from your testimony that you reject this 
premise that the FISA Act trumps the President's inherent 
constitutional authority. Could you expand on that and explain 
further how this is a longstanding principle, not something the 
Bush administration recently discovered?
    Mr. Schmidt. Well, that is correct, Senator. My view is 
that the President had the constitutional authority under 
Article II. The FISA Act could not take that away from him. 
That is not a new idea. It is what Ed Levi believed, it is what 
Griffin Bell believed.
    Senator Hatch. And a lot of Presidents have relied on it.
    Mr. Schmidt. It has been a consistent view, I think, of 
Presidents that their authority could not be constrained when 
it comes to the need to obtain foreign intelligence. Actually, 
I think we are talking about even the narrowest category of 
foreign intelligence. We are talking about a foreign power, a 
foreign terrorist group that has attacked in this country, and 
the question is surveillance to get information on where they 
are going to attack again. So I think it is really the 
strongest possible case for the exercise of that inherent 
authority, and that is a longstanding principle of the 
executive branch, upheld in the one judicial statement we have 
on the issue.
    I would agree with you, though, that as I said, even if 
that is wrong--I may be wrong, obviously, and certain even 
people like Attorney General Levi or a three-judge court can be 
wrong. It is still an argument that serious legal scholars and 
serious lawyers can make, and under those circumstances to 
suggest that the President should be censured because you don't 
agree with the legal advice he got seems to me to be out of the 
ball park in terms of the way we can sensibly discuss and talk 
about issues like this.
    Senator Hatch. Well, thank you all.
    Chairman Specter. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. First, with 
regard to the comment of the Senator from Texas, who basically 
did a hit-and-run here on our witness, Mr. Dean, of course Mr. 
Dean committed a crime and paid the price. But let's remember 
what caused that. It was involvement with a violation of the 
laws of this country by the President of the United States, and 
he was a courageous voice that revealed that.
    I note the irony of Mr. Schmidt being here, third man in 
the Clinton Justice Department. As Senator Leahy pointed out, 
where is the Attorney General and Mr. Comey, who, according to 
reports, have indicated their discomfort with this program? Why 
are they not before this Committee talking plainly about their 
objections? Do you know what word comes to mind, Mr. Chairman? 
It is a word that first came into my consciousness in 1974--
cover-up. It is a cover-up.
    Mr. Chairman, on the issue of the constitutionality of 
censure, I obviously strongly disagree with Senator Hatch. 
Censure has historically been an option for the Senate to 
express its opinion of Presidential action. The Senate 
expresses its view through resolutions all the time and I would 
like to submit for the record, if I could, Mr. Chairman, an 
article by Professor Michael Gerhardt, whom Mr. Dean spoke 
about, on the constitutionality of censure published in 1999 in 
the University of Richmond Law Review.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Feingold. One sentence from that: ``The truth is 
that censure, understood as a resolution critical of the 
President passed by one or both houses of Congress, is plainly 
    Mr. Chairman, if you want to look to recent precedent, 
Senator Feinstein's resolution of censure in 1999 had 38 
cosponsors, including five Republicans, three of whom are still 
members of this body. That resolution stated specifically that 
``The U.S. Senate does hereby censure William Jefferson 
Clinton.'' So there certainly is precedent for the idea that 
censure could be referred to specifically.
    Now, Mr. Chairman, before I ask my first question, I want 
to get to this question of--you didn't help me draft this 
thing, but if you want the words ``bad faith'' in there, let's 
put them right in, because that is exactly what we have here.
    The whole record here makes me believe, with regret, that 
the President has acted in bad faith both with regard to not 
revealing this program to the appropriate Members of Congress, 
the full committees that were entitled to it, but more 
importantly by making misleading statements throughout America 
suggesting that this program did not exist--I understand if he 
didn't talk about--and then after the fact dismissing the 
possibility that he may have done something wrong here, that he 
may have broken the law. So call it bad faith, call it 
aggravating factors.
    Mr. Fein, for me, the law-breaking is shocking in itself, 
but the defiant way that the President has persisted in 
defending his actions with specious legal arguments and 
misleading statements is part of what led me to conclude that 
censure is a necessary step. Let me ask you about the first 
factor you cite that the intent was to keep this program secret 
from Congress and avoid political or legal accountability 
    Do you think that that factor answers the claim that the 
President should not be censured because he acted in good faith 
on the basis of legal advice from the Department of Justice?
    Mr. Fein. Yes, because that is, in fact, one of the most 
critical elements in disturbing checks and balances and 
separation of powers. You cannot have the operation go forward 
with someone checking a program that is unknown, and without 
the New York Times publication I feel confident Bush would have 
celebrated leaving office and having this still secret. A 
secret Government of that magnitude spying on Americans on 
American soil forever without being disclosed to anybody is 
    It is exactly that kind of prolonged secrecy that the 
Church Committee exposed as yielding 20 years of illegal mail-
openings, illegal seizures of international telegrams, illegal 
use of the NSA for criminal justice purposes. Secrecy breeds 
that kind of abuse and it is not going to change post-9/11 or 
    Senator Feingold. Thank you, Mr. Fein.
    Mr. Dean, one of the things that troubles me greatly and 
which I cite in my resolution as grounds for censure again are 
the misleading statements that the President made concerning 
wiretaps during his reelection campaign and in his campaign to 
reauthorize the PATRIOT Act. He repeatedly emphasized that 
wiretaps in this country are always approved by a judge. He 
knew he wasn't telling the complete story, but he continued to 
engage in it. That is why on July 14, 2004, he said, quote, 
``The Government can't move on wiretaps or roving wiretaps 
without getting a court order.''
    On April 20, 2004, he said, quote, ``When we are talking 
about chasing down terrorists, we are talking about getting a 
court order before we do so,'' unquote. He knew when he gave 
those reassurances that he had authorized the NSA to bypass the 
very system of checks and balances that he was using as a 
shield against criticisms of the PATRIOT Act and his 
administration's performance.
    Do you agree that misleading the American people in this 
way is worthy of condemnation?
    Mr. Dean. Is that question to me, Senator?
    Senator Feingold. Yes.
    Mr. Dean. It was certainly very striking. It was rather 
blatant, it was misleading, and in the context that it has 
arisen it is such an important issue. If it were unique and 
isolated, I might feel differently. I think it is a pattern and 
    Senator Feingold. Thank you, Mr. Dean. Thank you, Mr. 
    Chairman Specter. Well, it is my turn again. Is Senator 
Graham in the back room? If so, he will come back for a second 
    Mr. Fein, you just responded to the question of Senator 
Feingold saying secret, without being disclosed to anyone. Why 
do you persist in saying that when the Gang of 8 was informed 
about the program?
    Mr. Fein. Because I think the informing function has to be 
measured against what the role of checks and balances is. The 
level of disclosure and the magnitude or the breadth of 
disclosure has to be commensurate with the ability of the other 
body to check and evaluate and make conclusions. I do not think 
that checks and balances--
    Chairman Specter. But, Mr. Fein, you don't know the scope 
of the disclosure. You don't know what was told to the Gang of 
8, do you?
    Mr. Fein. I have made inquiries of some Senators and have 
asked specifically, have you been told the number of individual 
Americans who have been spied upon, have you been told this is 
the kind of intelligence we have gathered through these 
programs? And there has been silence. I don't know whether you 
have been told that, but certainly no one else has yielded 
that. Perhaps Senator Hatch could explain whether he has been 
told the number of Americans who have been spied on and the 
nature of the intelligence and how effective it is.
    Chairman Specter. Well, Mr. Fein, with all due respect, you 
aren't the last word in defining what has to be disclosed in 
order to have it not a secret. But you have it on the record; 
you have Senator Rockefeller's letter that he was told about 
the program. There have been public statements by others of the 
Gang of 8 that they were told about the program. Now, maybe 
they weren't told as much as you would like to have them told, 
but it seems to me that it is just wrong for you to continue to 
say it is secret.
    Mr. Fein. I certainly am not a Member of Congress who can 
be definitive. I am a citizen of the United States who cares 
about a republic rather than a monarchy, and I have an interest 
in having Congress exercise its authority to check the 
Executive, even if Congress does not wish to go forward on that 
    It is for that reason why, in my judgment, the kinds of 
limited disclosure that you have described are not sufficient 
for Congress to exercise the oversight and evaluation of a 
program whose scope and breadth and detail is not known to you 
and is required to be known to evaluate the Fourth Amendment's 
reasonableness standard.
    Chairman Specter. Well, no one could say that I am not 
interested in having a check and balance and finding out what 
this program is, but I just disagree with you head-on when you 
say that it is still secret.
    Professor Turner, you raised your hand, but let me ask you 
a question before you respond focusing on the issues that I 
want to bring out in this hearing, and that is you are a very 
strong defender, and I appreciate your fervor defending 
Presidential authority.
    But what would be wrong with the President submitting to 
the FISA court the program that he has? If it is domestic 
spying under the FISA Act, he is obligated to make a disclosure 
to the FISA court on domestic surveillance, and it is in part 
domestic surveillance and it is in part foreign. And there are 
strong arguments which I have already advanced for inherent 
authority, but we can't really gauge whether that inherent 
authority is being used constitutionally because that depends 
upon the standard of reasonableness which you can gauge only if 
you know what the program is.
    What would be wrong with the President disclosing to the 
FISA court his program and having them determine 
    Mr. Turner. Well, two comments, Senator. First of all, what 
we know about the program--that is to say what was reported in 
the New York Times on December 16th of last year and what has 
been said by General Hayden and what has been said by the 
Attorney General all say that one party to every one of these 
conversations was a foreign national outside this country 
believed to be tied to al Qaeda.
    Now, in this country, if we get a wiretap warrant against 
Al Capone and I call Al Capone to sell him something on eBay, 
the FBI or the police can listen to that whole conversation and 
use every word I say against me in court. In other words, it is 
the target that matters, and in these cases I gather the 
targets are foreigners.
    But there are two problems with FISA. I have been out of 
the oversight business now for more than 20 years, but I am 
told there is some new technology that I don't understand and 
haven't been briefed on that makes it hard to do FISA. Some of 
this also has to do with that we know cell phone numbers that 
have been used by al Qaeda, but we don't know who is talking on 
that cell phone at any one time. We know e-mail accounts; we 
don't know who is talking on that e-mail.
    There is another aspect of this that has to do with delay. 
Washington once wrote that if Congress--this was during the 
American Revolution--if Congress believes that constantly 
changing members of their committees can monitor the business 
of war which requires speed and secrecy and unity of design, 
they deceive themselves.
    Now, in a FISA warrant, you start off on the NSA side or an 
FBI analyst saying, hey, I would like to listen to this 
communication, I would like to intercept it. It is not really 
wiretapping, but we call it that. He goes to a lawyer at NSA. 
He may bring in some other lawyers and they say, OK, put 
together a packet. They then go to the Office of Intelligence 
Policy and Review over at Justice, where there are dozens of 
other lawyers, and they kick it around and they say, yes, this 
is probably a good idea. A few days may have passed.
    Then they go to the Attorney General. Well, maybe he is out 
of town giving a speech. He comes back, he focuses on it and he 
says, yes, I like it. Then they need to get the signature of a 
senior--either the National Security Adviser or a senior 
national security official. Then they go back and put together 
about, on the average, an inch-thick packet of information for 
each case, which then gets sent over to the court to get in 
    Now, the court has been working weekends, nights. The 
judges deserve the highest praise for their work. But a system 
that says there are people over there trying to kill us, but 
before you can listen to what they are saying to people in this 
country who may well be foreign nationals and may well be 
totally dedicated to the enemy's cause, but come under the 
protection of FISA--before you can listen, you have to go 
through this whole process. You know, it throws in that element 
of delay that is incompatible with protecting the lives of the 
American people.
    Now, in 99 percent of the cases I like FISA. I think it can 
work. I think it does provide a useful check, but when the 
President decides that the security of the Nation requires 
immediate action--and when he is talking about intercepting 
foreign terrorists, the idea that Congress would censure him 
suggests to me that Congress does not have the safety of the 
American people as much in its mind as it does the next 
election and the possibility that they can weaken the President 
and further party interest.
    Chairman Specter. Professor Turner, I am not going to ask 
you another question because that last answer was two-and-a-
half minutes. But I am going to come back to it in another 
round, so bear the question in mind. The delay response you 
just gave doesn't deal with my question as to why not have the 
program submitted to FISA, but I will come back to you when I 
have some time.
    Senator Graham, you had stepped out of the room when your 
turn came, so we will recognize you now.
    Senator Graham. Thank you very much, and I will not make 
that mistake again. I appreciate very much your having this 
hearing, Mr. Chairman. Let's get to the good faith aspect of 
what is going on here.
    Mr. Fein, we have worked together in the past and I think 
you are a very talented man, and I share some of your concerns 
about an inherent authority argument without checks. I have 
sort of raised that a bit, too, but let's see if we can agree 
on this. Whether you agree with them or not, this crowd in the 
White House really believes this stuff. They believed it before 
September 11, 2001, that the President has robust inherent 
    Would you give them credit for really believing what they 
    Mr. Fein. I am not sure I would use the word ``credit.'' I 
will accept that they believe what they believe.
    Senator Graham. Well, that is the way they feel about you. 
And the one thing I have gotten from this panel--you are all 
fine people and I am glad none of you are making policy because 
I think we would be in two real big ditches here.
    Mr. Fein. But this is the one observation I would make--
    Senator Graham. Do you doubt that Mr. Addington, who 
represents the Vice President, really believes this argument?
    Mr. Fein. I don't doubt that he believes what he says.
    Senator Graham. Good, because they do believe it. Now, you 
believe something else, but to say they don't believe it is a 
joke. These people really do believe the President has robust 
authority when it comes to fighting a war.
    Now, Mr. Dean, this is a little bit different than 
Watergate. Did you ever believe there was a legal basis for the 
President of the United States to break into the Democratic 
National Headquarters?
    Mr. Dean. No.
    Senator Graham. You knew you were committing a crime. That 
wasn't the debate, whether or not it was legal or not. You just 
chose to break the law.
    Mr. Dean. I couldn't read the Commander in Chief Clause the 
way it is being read today.
    Senator Graham. That is different, that is different. You 
read it differently, but nobody read the Constitution to say 
that Richard Nixon and you could break into somebody's private 
office and steal.
    Mr. Dean. I don't think when we talk about Watergate--
    Senator Graham. Isn't that different? Isn't there a big 
difference between knowingly breaking the law, burglarizing 
somebody's office, and having a real debate about where 
authority begins and ends?
    Mr. Dean. Nixon didn't authorize the break-in.
    Senator Graham. Oh, he didn't, OK. Did you authorize it?
    Mr. Dean. No, I did not.
    Senator Graham. Did you know about it?
    Mr. Dean. No, I did not.
    Senator Graham. Did he ever know about it?
    Mr. Dean. After it happened.
    Senator Graham. OK, so then he covered up a crime that he 
knew to be a crime, right?
    Mr. Dean. Senator, it might be important for you to know 
    Senator Graham. Did he cover up a crime that he knew to be 
a crime?
    Mr. Dean. He covered it up for--
    Chairman Specter. Senator Graham, let him answer the 
    Mr. Dean. He covered it up for national security reasons.
    Senator Graham. Give me a break.
    Mr. Dean. I am serious.
    Senator Graham. He covered it up to save his hide.
    Mr. Dean. No, sir. You are showing you don't know that 
subject very well.
    Senator Graham. What is the national security reason to 
allow a President to break into a political opponent's office?
    Mr. Dean. The cover-up didn't really concern itself with--
    Senator Graham. What enemy are we fighting when you break 
into the other side's office?
    Mr. Dean. Senator, if you will let me answer, I will give 
you some information you might be able to use.
    Senator Graham. Yes, please.
    Mr. Dean. He covered it up not because of what had happened 
at the Watergate, where I think he would have cut the 
reelection Committee loose. He kept them covered up because of 
what had happened while they were at the White House, which was 
the break-in into Daniel Ellsberg's psychiatrist's office. And 
that, he believed, was a national security activity.
    Senator Graham. So he had the view that you could plot a 
crime in the White House and that made it national security? 
That is absurd. That is why he got impeached.
    Mr. Dean. That isn't what I said.
    Senator Graham. That is why I went to jail.
    Mr. Dean. I did not go to--well--
    Senator Graham. So let's get to the reality. Let's get to 
    Senator Leahy. Mr. Chairman, please. I hate to interrupt, 
but let him answer the question.
    Chairman Specter. Just a minute, Senator Leahy. I will rule 
on that.
    Senator Graham. This is my 5 minutes. I would like to use 
it like I see fit.
    Chairman Specter. So far, I asked Senator Graham to desist 
once and after that I think Mr. Dean has been defending himself 
pretty well.
    Senator Graham. Great, and my point is that this is--
    Chairman Specter. That is with respect to answering the 
question, not necessarily as to the substance.
    Senator Graham. Thank you.
    Chairman Specter. Go ahead, Senator Graham.
    Senator Graham. My point is this is apples and oranges. 
Anybody who believes that Richard Nixon was relying on some 
inherent authority argument to allow himself to break into a 
political opponent is recreating history. This debate is about 
when does the power of the President begin and end in a time of 
war. This is an honest, sincere debate.
    We have got a Supreme Court case that says the force 
resolution--the Hamdi case--allows the President to put someone 
in jail as an enemy combatant in spite of the fact that Section 
4001 of the U.S. Code--18 U.S.C. 4001 says no citizen shall be 
imprisoned or otherwise detained by the United States except 
pursuant to an Act of Congress. Justice O'Connor said the force 
resolution authorizing force in Afghanistan met that 
requirement, and she also said inherent to fighting a war is 
putting people in prison who are part of the enemy.
    The problem here is that we have got a preexisting statute, 
Mr. Fein, and you are right. If you take this argument too far, 
what Mr. Addington is saying makes me wonder if you can have 
the UCMJ. Could the Congress ever do anything in a time of war 
to regulate the land and naval forces? The answer, to me, is, 
yes, the Congress can. Yes, the President can go after the 
enemy. The middle ground, to me, is the Congress and the 
President working together. They did act in good faith. I just 
disagree with them.
    Chairman Specter. Thank you, Senator Graham.
    Senator Leahy.
    Senator Leahy. Can he respond to that?
    Chairman Specter. Do you care to respond?
    Mr. Dean. I would only respond that the very opening 
premise of the Senator's assumption that Nixon had somehow 
ordered a break-in, based on anything in the historical record, 
based on anything in my knowledge, is just dead wrong.
    Senator Graham. He condoned it.
    Mr. Dean. He did not know about it, Senator. It is hard to 
condone something you don't know about.
    Senator Graham. Once you know about it, he condoned it.
    Mr. Dean. Then as I told you, he had a totally different 
agenda for covering it up.
    Chairman Specter. Senator Leahy.
    Senator Leahy. Thank you. I would note that Professor 
Turner says, and accurately so, there have been many, many 
changes in technology. I don't think any of us are Luddites. We 
know that, and this White House and previous White Houses have 
come to this Congress and this Committee asking for changes in 
the FISA law to keep up with those differences in equipment, 
and so forth, and we have given it to them. They didn't ask for 
anything here.
    You seem to believe that we are more concerned about the 
next election. I have got 5 years left on my term. I am not 
concerned about the next election. I am concerned about the 
Constitution being upheld and I am concerned about establishing 
the principle and reestablishing the principle and reaffirming 
the principle that nobody is above the law, not even this 
    Now, Mr. Fein, there has been a lot of discussion here 
about the President's inherent authority. Could you please 
explain the difference between inherent authority and plenary 
    Mr. Fein. Yes. Inherent authority means that a power can be 
exercised without it being conferred by a coordinate branch. 
And I think this is where Senator Specter is correct that the 
President has acknowledged that if Congress is silent, the 
President can gather foreign intelligence. That is part of the 
function of operating in the foreign affairs realm.
    But Article I also endows Congress with authority to 
regulate inherent powers. It endows Congress with authority 
regulate every power of the U.S. Government, exercised by 
whatever agency is involved. And with regard to the collection 
of foreign intelligence, after exhaustive hearings showing a 
tendency to abuse, Congress decided not to eliminate the 
President's inherent power to gather foreign intelligence, but 
to regulate it, and regulate it in a very narrow fashion.
    As I think Mr. Casey has pointed out, most foreign 
intelligence is gathered outside the scope of the Fourth 
Amendment or FISA because the target is an al Qaeda operative 
abroad. So this hypothetical that if you are targeting al Qaeda 
abroad and they called into the United States you would have to 
hang up the phone if FISA applied is simply wrong-headed. You 
have never had to have a warrant in those circumstances.
    But Congress decided to regulate a narrow portion of the 
inherent authority to gather foreign intelligence, namely when 
the target is an American citizen standing on American soil. It 
doesn't say the President can't gather foreign intelligence in 
those circumstances. It says we want an independent, neutral 
magistrate, as Senator Specter has said is important to 
safeguard the Fourth Amendment, to have some kind of check on 
the reasonableness of the executive branch's interception, 
search or seizure. And going through that warrant requirement 
is simply a regulation, not an elimination, of the President's 
gathering power in foreign intelligence realms.
    And with regard to speed and workability, all I can say 
with due respect to Mr. Turner is it was the Department of 
Justice itself, on July 31 of 2002, who said that FISA works 
beautifully; it is not a problem with going too slow. And I 
would trust their judgment, since they are operating on a day-
to-day basis. And this was a statement made months and months 
after the warrantless surveillance program had begun.
    Senator Leahy. Thank you. You anticipated my next comment. 
Of course, my concern and the concern of many of us here is we 
still don't know, and with all due respect to the Gang of 8, 
they don't know whether Americans' e-mails are being opened, 
whether mail itself is being opened. We have asked that 
question and we don't get an answer. It has been asked, 
certainly, in open session. I will let you draw your own 
conclusion whether it was asked in closed session, but I can 
tell you we don't have the answer.
    Mr. Dean, you said something, and I was reading late last 
night--actually, I was reading two things. I was reading the 
statements of all of you that we had and I was also reading a 
biography of a former Senator from Vermont, Senator Flanders. 
You said at the end of your written statement that today it is 
very obvious that history is repeating itself. What did you 
mean by that?
    Mr. Dean. I mean by that that we have entered a period 
where a President is pushing the envelope. He actually defying 
the Congress. Nixon writes in his memoir how he has thrown the 
gauntlet down after he has been reelected. I can recall well 
from my visits with people like Senator Sam Ervin, who were 
quite upset with his reorganization of the executive branch 
contrary to the desires of the Congress, he was testing, if you 
will, where he could take his policies and authorities. He 
found, however, that with a divided Government it was a little 
rougher road to hoe. The reason history is repeating itself is 
because there is no check, as there has been in the past.
    Senator Leahy. Thank you very much. Mr. Chairman, thank you 
very much. As I explained to you earlier, at this point I am 
going to have to leave for other matters, but thank you.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch.
    Senator Hatch. Well, let me just say this, that Presidents 
may push the envelope because they believe they have certain 
powers to protect the American people. And in this particular 
case, wouldn't he be tremendously criticized if he didn't do 
everything he could to protect the American people?
    I don't see any evidence at all that the President is 
defying Congress. My gosh, the President not only required 
certain procedural mechanisms and opinions of the Justice 
Department and others, but the President actually had them 
inform the FISA two chief judges, plus we have for years around 
here operating in intelligence ways by having the eight leaders 
in Congress in certain areas be the people who are informed. 
One reason for that is so that these very, very important, top 
secret matters do not get out and that they don't, by getting 
out, undermine our country.
    Also, the quote that FISA works beautifully that was made 
pre-dating the date that this program was started--all I can 
say is that it would be apparent to anybody that if we want a 
FISA approach, FISA would have to be amended. And the 
distinguished Chairman has been working very hard, and I think 
in an intelligent way to try and bring Congress and the 
executive together with an additional bit of legislation.
    Some of the statements here have been outrageous, but let 
me just say this. Mr. Casey, I didn't get a chance to ask you a 
question. Do you agree with Mr. Dean's assertion in a September 
14, 2001, article that counterterrorism is an executive 
function which the President does not need Congress to pursue? 
And do you agree with Mr. Dean's assertion in his September 14, 
2001, article that Article II, section 1, vests the President 
with power to respond to these terrorist attacks, whether or 
not Congress agrees with him?
    Mr. Casey. Yes, Senator, I do. The President is vested by 
the Constitution with the whole executive authority of the 
United States and is Commander in Chief of the Armed Forces. He 
is entitled to deploy forces, repel attacks, and even to make 
attacks to defend the national interests of the United States.
    Senator Hatch. Well, the Feingold resolution makes certain 
statements about the President's foreign intelligence 
surveillance program as grounds for the resolution's conclusion 
that the President broke the law and therefore should be 
censured. In my opening statement, I said that many of these 
statements in the resolution are either highly debatable and 
some of them are absolutely false.
    I would like you to specifically address the following 
statement, in particular, quote, ``Whereas the President's 
inherent constitutional authority does not give him the power 
to violate the explicit statutory prohibition on warrantless 
wiretaps in the Federal Intelligence Surveillance Act of 
1978,'' unquote.
    Mr. Casey. Well, Senator, I disagree with that. That gets 
us, of course, to the fundamental constitutional question that 
we so often face. At what point does the President's exercise 
of authority run up against the Congress's exercise of its 
authority? These things are often worked out in a political 
way. Many times, they are resolved by the courts.
    I don't think either side here, if we were litigating this, 
has a slam-dunk. I think the President has very much the better 
of the argument, but I don't think the other side's argument is 
    Senator Hatch. Mr. Turner, in the few minutes that I have, 
I expressed concern in my opening statement and in my statement 
to Mr. Casey that various statements in this censure resolution 
are either highly debatable or simply false. In your submitted 
testimony, you examined some of these statements. I think this 
is absolutely necessary, since these statements purport to be 
the premises for the conclusion that the President should be 
punished by censure for how he has conducted the war on terror. 
That is the whole point of this resolution.
    Could you please discuss your reaction to the statement 
that no Federal court has evaluated whether the President has 
inherent authority to authorize wiretaps without complying with 
the Foreign Intelligence Surveillance Act? What have the courts 
ruled in this area? What has the very court established by FISA 
ruled about the President's inherent constitutional authority 
in this area?
    Mr. Turner. This is the key and I mentioned it earlier. In 
1978, in addition to creating the Foreign Intelligence 
Surveillance Court, Congress created the Foreign Intelligence 
Surveillance Court of Review that has three court of appeals 
judges who are appointed by the Chief Justice of the United 
States. And in their only decision in 2002, they noted that 
every Federal court that has considered this issue has held 
that the President has independent constitutional authority to 
engage in national security foreign intelligence wiretaps. And 
then the court went on to say we assume that is true, and if it 
is true, FISA could not take that power away, which is exactly 
the position that Griffin Bell, another former court of appeals 
judge, took during the Clinton administration.
    There are two themes I am hearing here today. One is that 
secrecy is evidence of duplicity, and the second one is that 
there can be no unchecked Executive powers. On the first one, 
on June 6, 1944, the United States invaded Europe with our 
British allies on D-Day, and to conceal that operation from the 
American people the President and our military commanders put 
Lieutenant General George Patton in Dover, England, with a 
totally fictitious army, complete with inflatable tanks, to 
deceive the American people and the press and to keep them from 
    Now, obviously, it had something to do with deceiving the 
German high command so more Americans would survive the attack 
at Omaha Beach and we might win the war. But the same logic 
that says the President did not announce this highly secret 
operation to the public, to the Congress, you know, seems to 
suggest that in wartime when you keep secrets, you know you are 
doing something evil.
    But more importantly, I just leave you--the most important 
Supreme Court case of all time was probably Marbury v. Madison. 
Just a brief quote: ``By the Constitution of the United States, 
the President is invested with certain important political 
powers,'' and one of those, I would argue--the core of that is 
controlling foreign intelligence--quote, ``in the exercise of 
which he is to use his own discretion and is accountable''--we 
keep hearing the word he has to be accountable--``and is 
accountable only to his country and his political character''--
that is if he runs for reelection--``and to his own 
    And Marshall went on to say these powers, quote, ``being 
entrusted to the Executive, the decision of the Executive is 
conclusive;'' that is to say Congress cannot check this power, 
nor can the courts. And the reason for that is because of the 
need for speed and dispatch and secrecy and unity of design. 
And that is why John Jay explained when the Constitution was 
being ratified that we have given the power of intelligence, 
you know, the protecting sources and methods--the President 
will be, quote, ``able to manage the business of intelligence 
as prudence might suggest.'' That is not ambiguous language. 
That was the original plan that comes from Article II, section 
1, and when Congress usurps that power, Congress becomes the 
    We heard Senator Leahy say nobody is above the law. Well, 
Congress is not above the law. We have a hierarchy. The 
Constitution comes first, and Congress could no more take the 
President's intelligence power than it could pass a law telling 
the Supreme Court it must overrule Roe v. Wade. Even if it made 
funding contingent and said if the Court doesn't strike Roe v. 
Wade or reverse it, no money could be made available, that 
would still be a breach of trust, a breach of duty and a 
violation of the Constitution.
    Senator Hatch. Mr. Chairman, I just want to compliment you 
for having this hearing, and Senator Feingold, whom I admire as 
a friend, but whom I violently disagree with on this issue, for 
always being as courteous and decent as he is. And I want to 
thank each of you. This has been an interesting hearing. It has 
been a worthwhile hearing.
    Mr. Chairman, I think you deserve a great deal of credit 
for doing this, and I also want to say the Chairman deserves a 
great deal of credit for how hard he is working to try and 
bring Congress and the executive together in a way that will 
resolve these difficulties, because the current FISA Act, I can 
tell you, doesn't resolve them, and that is the problem.
    Chairman Specter. Thank you very much, Senator Hatch.
    Before turning to Senator Feingold for the next round, let 
me ask you, Professor Turner, on the heels of your declaration 
that Congress has violated the law when you cite those legal 
issues that Congress has disagreed with, do you think Congress 
ought to be censured for violating the law as you articulate 
    Mr. Turner. Well, if you are going to--
    Chairman Specter. I want a yes or no answer.
    Mr. Turner. Gee, that is hard. I stopped beating my wife.
    Chairman Specter. Well, then I withdraw the question.
    Mr. Turner. I would say yes, yes, but not this Congress, 
the Congress that passed FISA in 1978.
    Chairman Specter. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. I want to thank 
Senator Hatch. Even when he violently disagrees, he is calm and 
I give him credit.
    I am very pleased that Mr. Dean finally had the chance to 
put on the record the history that he knows so well of what was 
going on with Watergate and the White House then and the fact 
that it did involve assertions of national security power.
    I wish Senator Graham were still here, not only because I 
have a lot of admiration for him, but I would like him to hear 
my feeling that if, in fact, this is an apples-and-oranges 
situation, which I think it is not, certainly the greater 
danger, the greater threat to our republic is with what is 
going on here.
    I mean, put this into context of the assertions of 
Executive power with regard to torture, the assertions of 
Executive power with regard to preemptive war, and put this 
together with it and what we have here, I think, is one of the 
greatest attempts to dismantle our system of Government that we 
have seen in the history of our country. That is exactly what 
is at stake here. Otherwise, I wouldn't be talking about 
    The same thing goes for Senator Graham's comments that we 
are having an honest and sincere debate about this. Again, I 
wish that had been true, but that is not the way the White 
House has conducted this. In fact, this assertion that was made 
that somehow the authorization of military force in Afghanistan 
was not a sincere argument--I don't believe they believe it, 
not for 1 minute. And it was laughed out of this room, 
including by Senator Graham, because it is a bogus argument.
    That goes, Mr. Chairman, to the question of whether censure 
is appropriate. It has to do with whether or not, when this was 
revealed, there was a sincere attempt to come together by the 
President or whether there was conduct that was frankly, in my 
mind, inappropriate and disrespectful of the role of Congress 
and our system of Government.
    Mr. Fein, Mr. Casey's testimony includes the following 
statement: ``Few of the President's critics have had the 
temerity to claim that he was required to obtain the FISA 
court's permission to intercept and monitor al Qaeda 
communications outside of the United States,'' unquote. Perhaps 
the reason they haven't had the temerity to make that claim is 
because anyone familiar with FISA knows that the President 
doesn't need to get a FISA warrant to conduct surveillance of 
terrorists overseas, foreign intelligence. He does need a 
warrant when he is targeting an American on American soil, 
which we believe is what the President's program does.
    Why do you think supporters of the program persist almost 
everyday in suggesting to the public, which does not understand 
the law as well as some do here, that the administration had to 
violate FISA in order to do overseas surveillance?
    Mr. Fein. I think they are trying to frighten the public 
into thinking that in the absence of this evasion of the 
Foreign Intelligence Surveillance Act, we couldn't spy on al 
Qaeda abroad and intercept their communications. This is the 
signature hypothetical. If al Qaeda is calling into the United 
States, you expect us to stop listening if an American hangs 
up. That is insinuating that FISA would require that. The fact 
is it has never required it, it shouldn't require it, and it 
never will require it. The Fourth Amendment does not apply 
outside the United States.
    Senator Feingold. Precisely. This intentional distortion of 
what the law really is with regard to foreign intelligence is 
part of the reason why something like censure is necessary 
because there is a concerted effort to convince the American 
people that some of us here don't believe that terrorists 
should be wiretapped. Every one of us does believe that. That 
is part of the misconduct that I see occurring here.
    Mr. Dean, you make an interesting point about the need for 
an institutional rather than a partisan response to the 
President's actions, and I really do agree with you. I, of 
course, have been not surprised, but a little disappointed that 
my proposal has been characterized as partisan. My colleagues 
know on this Committee I am one of the least partisan Members 
of the Congress. Sometimes, I drive the Democrats crazy.
    Can you talk about the Watergate era and the importance of 
Members of Congress putting the good of the country before 
their partisan concerns in reacting to President Nixon's 
    Mr. Dean. Indeed. In fact, one of my points and one of my 
concerns and one of the reasons I traveled this distance to 
come and visit with you all and the Chairman is let's say the 
Chairman's bill does pass. Let's say it passes the House as 
well. What concerns me will be the pattern that seems to be the 
prologue that if that law should be sent to the White House, 
while the signing ceremony is going on Dick Cheney is going to 
be drafting a signing statement that will indeed gut the law.
    This is a new development. We saw it with the torture 
amendments. We have seen it with other bills where the 
President says, yes, you can pass it, I haven't exercised my 
veto because indeed I don't have to, I am just going to ignore 
this law. That is not the sort of thing you can do with a 
    Senator Feingold. Mr. Chairman, I will just ask one more 
question, if I could.
    Chairman Specter. Go ahead.
    Senator Feingold. I want to read an excerpt for Mr. Schmidt 
from the now infamous Bybee torture memo. That is the 2002 
Office of Legal Counsel memo that asserted such broad and 
extreme Executive power that once it was leaked, even the 
administration was basically forced to withdraw it. The memo 
says, quote, ``In light of the President's complete authority 
over the conduct of war, without a clear statement otherwise we 
will not read a criminal statute as infringing on the 
President's ultimate authority in these areas,'' unquote.
    Now, how is that legal argument which caused such outrage 
and led the Senate to vote 90 to 9 to prohibit our Government 
from engaging in torture any different than what the President 
is arguing now with regard to this NSA surveillance program?
    Mr. Schmidt. It is totally different. The argument that was 
made on torture, I thought, was a terrible argument. I thought 
so at the time. I think most lawyers thought so. I think part 
of the problem the administration has now, frankly, is that 
they made some terrible arguments in the past. That doesn't 
mean they don't have a good argument now.
    The argument over electronic surveillance is a very narrow 
argument. It comes down to the President's authority to conduct 
surveillance on a foreign power which has attacked this 
country, is threatening to attack again, and comes down to the 
circumstances under which that surveillance can take place. It 
relies on established case law. It has nothing to do with the 
prior effort to defend torture under circumstances, or even 
redefine torture down somehow so it wouldn't be real torture 
under circumstances where it was illegal.
    Senator Feingold. If I could, Mr. Chairman, Mr. Fein?
    Mr. Fein. I disagree. I think this is not a narrow argument 
or theory. Basically, the syllogism goes as follows: The 
President has inherent constitutional authority uncontrollable 
by Congress to gather foreign intelligence. One way to gather 
that is through electronic surveillance. Another way to gather 
that is through breaking and entering homes. Another way to 
gather that is through opening people's mail. Another way to 
gather that is through torture.
    The theory that the President has advanced on electronic 
surveillance applies in spades to every one of those alternate 
methods. And when the President and his representatives have 
been asked, don't you agree with that, they have not said no; 
they have simply said, well, we haven't gotten that far yet. 
And they could get that far tomorrow.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Specter. Senator Graham.
    Senator Graham. Thank you, Mr. Chairman. I will make a 
quick observation of what is my opinion about the whole issue. 
I think to say that there is a political or moral equivalent 
from a President breaking into one's political opponent to find 
out what their political opponent may be up to or lying under 
oath in a private lawsuit--to say that that is a political or 
moral equivalent to this President's decision to surveil the 
enemy, I think, is absurd.
    This is an honest debate where legitimate positions have 
been staked out about the role of a President in a time of war. 
I don't think there has ever been an honest debate in this 
country that the President could lie under oath in a private 
lawsuit to help himself. I don't think there has ever been an 
honest debate in this country that the President could 
authorize or condone, once he has found out about it, the 
breaking-in of one's political opponent for national security 
reasons. Now, let's have this honest debate.
    Mr. Turner, you seem to be advocating a position that to me 
goes too far. The inherent authority of the President, in my 
opinion, does have checks and balances, like Mr. Fein suggests. 
Let me ask you this question. Is there room for Congress to 
pass the Uniform Code of Military Justice in a time of war?
    Mr. Turner. That is a wonderful question, Senator, because 
it really gets--there has been a lot of rhetoric about the 
    Senator Graham. Well, could you give me a wonderfully short 
    Mr. Turner. It really is a key point about the President 
having unchecked power, but it is checked in certain areas. For 
example, in Article I, section 8, Congress has the power to 
define and punish offenses against the law of nations. That 
includes torture. It has the power to--the UCMJ is clearly 
authorized by Article I, section 8. There is no question about 
    Senator Graham. Well, do you know the Attorney General 
would not concede that?
    Mr. Turner. Well, I think that he is mistaken.
    Senator Graham. And that goes to this whole debate. I asked 
the Attorney General of the United States, does the Congress 
have the legal authority under Article I powers, which I think 
is to regulate the land and naval forces--if you can't regulate 
the discipline of your troops, what power do you have? So I 
disagree with the Attorney General. I believe, as you do, that 
the Uniform Code of Military Justice coexists with the inherent 
authority of the President and that we have the power to pass 
that statute and it is not an infringement of the President's 
    Mr. Fein--
    Mr. Fein. Well, I certainly agree with your observation.
    Senator Graham. No. I am going to ask you a question. I 
know you agree. Could the Congress require by statute that the 
President send over every target list before a military action 
is taken?
    Mr. Fein. No. I think that gets into specific tactics. I 
don't think that the Congress could tell the President to 
launch a rocket from one city to another.
    Senator Graham. Could the Congress set troop strengths in 
terms of what is necessary to fight a war?
    Mr. Fein. Yes, and I think the Congress did that in 
connection with the Vietnam War.
    Senator Graham. OK. That, to me, illustrates this debate. 
There is a point in time where you would agree that the 
Congress steps too far, and approving targets interferes with 
the ability of the Commander in Chief to fight the war. Setting 
troop levels kind of goes to how much money we want to spend on 
a war and how long we want to be there.
    Now, let's get to the FISA situation. Do you believe that 
the Supreme Court got it right when they said that the force 
resolution authorizing force in Afghanistan is authority to the 
President to detain someone as an enemy combatant?
    Mr. Fein. Yes, and I think the distinction with FISA is 
very clear.
    Senator Graham. OK. Now, I understand, but tell me how you 
get around this. 18 U.S.C. 4001 is a preexisting statute before 
the war. It says no citizen shall be imprisoned or otherwise 
detained by the United States except pursuant to an Act of 
Congress. That, to me, is similar to FISA in the area of 
    The Supreme Court said that the inherent authority of the 
President to detain a prisoner during war is really 
unquestioned. And if you have got any questions about it, the 
Congress gave him this authority when they said use all force 
necessary. So how were they able to get around 18 U.S.C. 4001?
    Mr. Fein. Well, 4001, No. 1, does not specifically address 
what is to happen during wartime. FISA does. That is one 
    Senator Graham. Would you agree with me that there is case 
law out there questioning whether or not FISA would change if 
there was a war?
    Mr. Fein. FISA addresses what is supposed to happen during 
    Senator Graham. Do you agree with me there is a court of 
appeals decision saying the question about how FISA applies in 
a declaration of war environment is different than 1978?
    Mr. Fein. I can't conceive how that argument can be made 
because there is explicit language in FISA that says when--
    Senator Graham. I am not asking you if you could conceive 
of it. Didn't the court raise that in their dicta in this 
    Mr. Fein. Hamdi?
    Senator Graham [continuing]. That we are not addressing the 
issue of the inherent authority of the President to surveil the 
enemy in a time of war?
    Mr. Fein. I am a not sure which opinion--is this the Hamdi 
v. Rumsfeld case you are referring to?
    Senator Graham. No. I am talking about the FISA Court of 
    Mr. Fein. The In re Sealed case?
    Senator Graham. Yes.
    Mr. Fein. That was dicta. It wasn't seeking--
    Senator Graham. But it was a legal thought thrown out 
suggesting--and I know my time is over--that we haven't gotten 
to that question yet and it may have a different answer because 
FISA was passed in peacetime. Now, we are in war and the court 
is opining through dicta that that may be different. Do you 
just concede to me they are doing that?
    Mr. Fein. They are suggesting that, but I would suggest 
this, Mr. Senator. At the time FISA was enacted, we were in a 
cold war where we could be destroyed instantly with Soviet 
missiles if we didn't gather intelligence in advance--a danger 
far more momentous to the existence of the country than exists 
at present.
    Senator Graham. I would end it with this. I understand, and 
really, actually, I share many of your concerns. But the whole 
idea that this is not an area where there is unsettled law, 
whether there is a legitimate debate--I come out where Mr. 
Schmidt said; I think this is a genuine, very narrow, focused 
question. I think the administration has taken legal positions 
in the past that have gone too far.
    Chairman Specter. Senator Graham, may we continue this in 
the next round?
    Senator Graham. Yes, sir. Thank you.
    Chairman Specter. We are going to have one more round. It 
has been a long hearing. We appreciate the patience and 
fortitude of the witnesses and, as I say, one more round and 
then we will bring the hearing to a close. We are now past the 
two-and-a-half-hour mark.
    Mr. Schmidt, I have legislation pending which would give to 
the FISA court jurisdiction to pass on the constitutionality of 
the President's program, and it is structured because of the 
concerns about Congress leaking, just like the White House 
leaks, but the FISA court doesn't leak. Courts, I think it is 
safe to say, don't leak as a generalization. They have the 
expertise and experience to handle it.
    Do you think that legislation ought to be enacted?
    Mr. Schmidt. Yes, I do. I think it would be a good thing 
for the country. I think it would be a good thing for the 
President, although I don't gather the President has yet come 
around to that point of view. Had that procedure been in place, 
it seems to me the President would have submitted this program 
to the court. Based on everything we know, everybody who has 
been fully briefed on it, the court would have said that is 
reasonable and we wouldn't be having this hearing.
    Chairman Specter. Mr. Schmidt, the administration hasn't 
said they don't like it. They just haven't said.
    Mr. Schmidt. Well, good.
    Chairman Specter. Mr. Casey, what do you think about the 
proposed legislation?
    Mr. Casey. Well, Senator, I think it certainly has merit. I 
have looked at it. I think we all need to keep in mind that 
there have been a lot of constitutional issues through here in 
the last 30 years and I don't remember FISA figuring in any of 
    The executive branch has made clear it believes--and I 
think it is right--it continues to have inherent power. But it 
has used FISA. It used FISA right up until the point where it 
concluded that FISA no longer worked in a particular situation. 
To the extent, obviously, that Congress can now make it work, 
there is no reason to believe the executive branch won't go 
back to using FISA.
    Chairman Specter. Mr. Schmidt, there has been other 
legislation introduced which would leave the administration 
free to conduct electronic surveillance without judicial 
approval for 45 days and, at the end of the 45 days, if there 
is sufficient evidence for probable cause, to go to the FISA 
court; if not, to go to the subcommittee on the Intelligence 
    Do you think that is adequate to provide judicial review 
for executive authority on surveillance, search and seizure?
    Mr. Schmidt. No, I don't. I think I get a lot more comfort 
having a court make an up-front decision that a program is 
constitutional. And it seems to me, as I say, it is in 
everyone's interest, including the President and others in the 
executive branch, to get that determination made.
    Chairman Specter. Thank you, Mr. Schmidt.
    Mr. Casey, what do you think about legislation which would 
leave the surveillance to roam at large for 45 days and 45 days 
later, if there is insufficient evidence for securing a 
warrant, you go to the Subcommittee of Intelligence?
    Mr. Casey. Well, Senator, that also would be another way to 
handle it. I mean, obviously, that doesn't--
    Chairman Specter. Do you think it would be adequate?
    Mr. Casey. I think it would be adequate to provide a check 
on the President to avoid potential abuses. The one thing it 
probably wouldn't give you--
    Chairman Specter. Would it be sufficient under our 
tradition to have judicial review before you have a warrant 
where the legislation allows the administration to side-step 
the FISA court and go to the Intelligence Committee? We don't 
know under the legislation what the Intelligence Committee is 
supposed to do. We know the Intelligence Committee is not a 
    Mr. Casey. Sure. Well, I don't think we need to get the 
courts involved in every one of these decisions. If we do, 
though, we get a real advantage, and that is if you get an 
order from the FISA court, the evidence is admissible in a 
later criminal trial and that is real value. And so while I 
don't think that the President needs to get an order in every 
case and I don't think Congress should try to force him to do 
that, there is value in it.
    Chairman Specter. Professor Turner, let me put those two 
cases to you, if you can give me a brief answer. Do you think 
the legislation taking the administration program to the FISA 
court would be a good idea?
    Mr. Turner. I think it is preferable to go to the FISA 
court than it is to go to the congressional committee. I think 
your legislation is quite good in many respects. The only thing 
I would add would be a recognition that the President does have 
some inherent constitutional power, and this is all the courts 
have said. That was Griffin Bell's comment. There is nothing in 
this bill that recognizes that.
    Chairman Specter. Let me move on to one more question 
before my time expires. In a key ``whereas'' clause in Senator 
Feingold's resolution, it says, quote, ``Whereas the 
President's inherent constitutional authority does not give him 
the power to violate the explicit statutory prohibition on 
warrantless surveillance in the Foreign Intelligence 
Surveillance Act of 1978.'' Now, you have In re Sealed and you 
have Truong saying that the Constitution obviously trumps a 
    Do you think, Mr. Fein, that there are some circumstances 
where, depending on what the program is, the program would be 
within the President's inherent constitutional authority, which 
would trump the FISA statute?
    Mr. Fein. There is none that I can imagine. I think the 
President in times of war is given the 15-day window in which 
he can do what he thinks is necessary to save the Nation from 
exceptional danger. When Congress contemplated the wartime 
exigencies, initially they were giving him a 1-year period. 
They thought 15 days was sufficient to come to Congress.
    Congress certainly would be receptive to extending that 
period, if necessary. I think Congress showed in the aftermath 
of 9/11 they would do that, so that the kind of special 
emergency where Congress would be rigid against the President 
simply is unlikely to ever happen, although it is possible.
    Chairman Specter. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman, for your 
generosity in terms of the rounds, as well.
    First, on the point on Truong, of course, that case was 
based on facts that preceded the passage of the FISA law. I 
would like that on the record. Let me just point out that since 
we don't have the contemporaneous Bybee memo, Mr. Fein, on this 
topic, we don't know what the legal rationale for this program 
was when it was authorized originally. I think it is possible, 
if not likely, that the exact same argument was made in that 
memo that was made in the Bybee torture memo.
    Would you like to comment on that?
    Mr. Fein. Yes. The Attorney General has stated that the 
administration's reasoning with regard to the authority for the 
warrantless surveillance program has not been static. It has 
been dynamic, something like a living Constitution, which the 
administration has not applauded elsewhere.
    That assertion suggests that what was stated initially is 
not what is being stated now. We don't know what was stated 
initially because as the Chairman has pointed out, there has 
been a resistance through the invocation of executive privilege 
even to talk; that is to say former Attorney General John 
Ashcroft, who was there at the time the program began. That 
leads to suspicion that this was something akin to the Bybee 
    Senator Feingold. Not in the spirit of a living 
Constitution, but in the category of shifting justifications, I 
agree entirely with your conclusion that the argument for the 
legality of this program based on the authorization for use of 
military force is preposterous. I don't know if the Chairman 
would use the same word, but he certainly agrees that it is not 
a basis for this program.
    Yet, many of the administration's defenders persist in 
making this argument, including two of our witnesses here 
today, Mr. Casey and Professor Turner. The administration has 
refused to provide the contemporaneous legal memo, so I have no 
way of knowing. But I wonder whether this argument was even 
made at the time the program was first authorized.
    Can you talk for a minute about the significance of whether 
there is a statutory basis for this program, as opposed to 
relying solely on the notion of inherent authority under 
Article II?
    Mr. Fein. Well, I think the reason why you would rely upon 
the statutory basis is a belief that your constitutional 
argument is very, very fragile. You ordinarily make your 
strongest argument first and secondary arguments follow. The 
administration has not made a primary argument that the 
President's inherent constitutional power trumps and holds FISA 
unconstitutional. It is very striking.
    Some others in this Committee have made that argument, but 
the administration has not, and yet it is the executive branch. 
That is why I think they have reverted to this statutory 
because they fear they would lose clearly the Article II claim.
    One of the things that is somewhat glaring with regard to 
Senator Specter's proposal is that everything that he is asking 
be done--judicial review of the legality of the warrantless 
surveillance program--could be done by the administration right 
now. They just need to go to the FISA court and say we are 
asking for a warrant and we are relying upon information we 
gathered under the warrantless surveillance program. That would 
then raise the question whether it could be admitted in seeking 
that kind of warrant. But the administration has evaded 
judicial review of its program, suggesting they are not 
confident of their theory.
    Senator Feingold. Mr. Fein's testimony here is critical to 
why censure is appropriate. This is exactly the pattern: first, 
a very brief effort to try to justify this under FISA, which 
nobody took seriously, then the resort to this idea, if you 
follow the press statements, that somehow this was authorized 
by the Afghanistan resolution. And then only when that failed 
were these rather extreme assertions of Executive power used. 
That, to me, suggests something inappropriate with regard to 
conduct concerning the role of Congress and the Executive.
    Mr. Dean, this morning a blogger named Glen Greenwald wrote 
about a 1969 article from Time magazine that quotes then-
Attorney General John Mitchell giving reassurances about new 
surveillance powers. Here is what Mitchell said: ``Any citizen 
of the United States who is not involved in some illegal 
activity has nothing to fear whatsoever.'' Now, as Greenwald 
points out, those statements are remarkably similar to what the 
President and the Attorney General have said about the NSA 
    People who actually don't know anything about the program 
other than what has been reported publicly have repeated those 
assurances. I have heard it from some people back home: this 
program is very narrow; it only covers people who they have 
reason to believe are part of al Qaeda, et cetera.
    I have no reason to believe that the administration is not 
telling the truth in this case, but certainly our history has 
taught us, as Ronald Reagan famously said, trust, but verify. 
That is why, after the abuses of the Nixon era, Congress passed 
FISA so that a secret but independent court could evaluate 
Government wiretapping requests and make sure that these kinds 
of assurances are actually true.
    Would you say a bit, finally, to comment on the parallels 
here? Do you agree that testing these kinds of public 
assurances are exactly why we have the FISA law and why the 
administration must comply?
    Mr. Dean. I believe the Attorney General, John Mitchell, 
made that statement shortly before the Keith case argument, in 
which the Justice Department relied on King George III, in 
which the court was very prompt to remind the Justice 
Department that one of the things we fought for in the 
Revolution was against warrantless surveillance. That message 
got through and they pulled back for a while.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Specter. Senator Graham.
    Senator Graham. Thank you, Mr. Chairman. We will talk about 
the DeWine-Graham bill in a moment and get some views on that 
because I want to explain it in terms of its entirety. We are 
debating about a solution between Senator Specter's approach 
and our approach, and that is a healthy debate to have because 
I think we will be better off if we have constitutional checks 
and balances when it comes to administering this program.
    But let's get back to the central point. I personally 
believe if you went the censure route, you would kill this 
program. Not only would you kill this program, which would hurt 
our National security interest, you would do a lot of damage to 
future Presidents because they could not go down a road of 
honest debate without facing extreme political consequences. As 
I said, the two other cases dealing with breaking into one's 
political opponent and clearly lying under oath in a civil 
matter are not remotely similar to what we are talking about.
    Now, Mr. Fein, would you agree that the Supreme Court has 
used the force resolution passed to invade Afghanistan to 
justify the detaining of enemy combatants by the President?
    Mr. Fein. Yes. They did that in the Hamdi case.
    Senator Graham. The point I am trying to make is that it is 
clear that the force resolution was seen by the Supreme Court 
to be authorizing certain actions of the President. And I agree 
with the Chairman here that if you had asked me the day I voted 
in the House, did I intend for FISA to be repealed, I would 
have said no. But if you had asked me the day I voted in the 
House, did I intend for the President to be able to detain an 
enemy combatant or enemy prisoner, I would have said yes.
    If you had asked me the day I voted in the House, did I 
intend for the President to be able to surveil the enemy, I 
would have said yes. If you had asked me the day I voted in the 
House, did I mean for the President to be able to follow an 
American around, reading everything they write, listening to 
everything they say, without court supervision, believing they 
are cooperating with al Qaeda and no warrant is required, I 
would have said no. If you had asked me, did I want to impede 
the ability to surveil the enemy by having a bureaucratic 
nightmare called FISA, I would have said no.
    So here is what I am trying to say: I don't believe you 
need a warrant to follow the enemy in a time of war. To me, 
that is inherent to fighting a war. But if the American 
Government believes that any Joe Doe out there is aiding and 
collaborating with the enemy, I think it is incumbent upon us 
to have that checked out by a court in a reasonable fashion.
    So my legislation says you don't need a warrant when you 
are surveiling the enemy, but when a contact with an American 
citizen has been made, that would require a FISA warrant. You 
have to go get that FISA warrant. The problem here is that we 
don't want to impede the ability to surveil the enemy, and I 
think an advisory opinion of the court alone is not a 
    Congress needs to be involved here. Congress needs to set 
out in some reasonable fashion when you cross that line, and 
what we are proposing is that you have a statute that will 
allow the President to surveil the enemy without a warrant. And 
the only time you need a warrant is when there is a contact 
with an American citizen, giving rise to a reasonable belief or 
probable cause that they may be helping the enemy.
    Here is an example of what I am trying to say. You could 
have a computer in Afghanistan that has 1,000 phone numbers in 
it, all American citizens. Do you need a warrant to monitor 
that phone number before a call is made, Mr. Fein?
    Mr. Fein. Well, the standard that is set out by FISA which 
echoes the Fourth Amendment is the warrant is required when 
there is a reasonable expectation of privacy. If you are simply 
having a computer intercept certain things and a human being 
doesn't understand the contents, I don't think there is any 
case law that exists--that creates a reasonable expectation of 
    It is the same way in which you can look at the outside of 
a letter, of an envelope and see who is it addressed to and 
what the return address is. That doesn't mean you can look at 
the contents, so that I don't think there is a problem--
    Senator Graham. I agree with you totally. There is a 
conversation between someone in Kansas and someone in the 
Mideast, and that someone in the Mideast, unbeknownst to the 
person in Kansas, is a front person for al Qaeda trying to 
raise money, trying to finance the war. The deal is about 
wheat. The person in Kansas doesn't know that the person in 
Afghanistan or some other Mideast country is actually a front 
    Do you need a warrant to listen into that phone call as to 
whether or not it is about wheat?
    Mr. Fein. If you are targeting the al Qaeda member abroad 
and you are making the interception of the transmission when it 
is outside the jurisdiction of the United States, you do not 
need a warrant. It is not covered by FISA, it is not covered by 
the Fourth Amendment.
    Chairman Specter. Senator Graham, would you care to take 2 
minutes to sum up? I am going to call on Senator Feingold for 2 
minutes to sum up. Do you care to use it?
    Senator Graham. Thank you, Mr. Chairman. One, I want to 
compliment you for having this hearing, and if I have said 
anything that is rude to the witnesses, I apologize. This is an 
emotional area, but I feel really confident that by discussing 
this, we are stronger, not weaker.
    I think censure takes the discussion in the wrong area. It 
undermines the program, it sends the wrong signal to the enemy. 
But I stand ready, willing, and hopefully able to find some 
middle ground here where you allow a robust ability to surveil 
the enemy by the President as a wartime commander, but you 
never allow in this country the ability of the Government to 
follow an American citizen forever, unhindered, believing they 
are helping the enemy, because if you think I am helping the 
enemy if I am talking to somebody in the Mideast, you would be 
wrong. And I don't think it is unfair to ask the Government to 
have their homework checked at some appropriate point when they 
are focusing on an American citizen on the other end of that 
call. You don't have to do it right away, but you eventually 
have to do it. I don't want any FBI agent to come to an 
American citizen's door, after listening to them for a year and 
believing they are helping the enemy, without getting some 
third eye to look at this. I think that can happen and still 
save this program.
    Chairman Specter. Senator Feingold, you have two minutes if 
you would like to sum up.
    Senator Feingold. I appreciate that, Mr. Chairman. Let me 
say if this were only an issue of the way the Chairman and 
Senator Lindsey Graham handle this issue, there wouldn't be any 
need to talk about censure at all. Both of you address the 
issue and the arguments on the merits, and you say which ones 
you agree with and which ones you don't.
    The problem here is that when this program was revealed, 
the White House took a different course. Had they said, look, 
this is a close case, we might have gone too far here, let's 
work it out, that would be one thing. They chose the opposite. 
They chose to put forward an incredibly bogus argument about 
the authorization for military force, and then they tried an 
expanded doctrine of inherent power that frankly has no end 
that would essentially mean the Congress of the United States 
would not have much of a role in conducting its business.
    That is why, Mr. Chairman, I take the step of proposing 
censure. I don't do it lightly. I do it with a sincere belief 
that if we do not assert ourselves as a Congress at this point, 
it will go down as one of the great losses for our system of 
Government. So I offer it in that spirit, I offer it looking 
for bipartisan support and I offer it in good faith.
    Thank you, Mr. Chairman.
    Chairman Specter. Before taking my 2 minutes, without 
objection I want to put into the record a letter from Carl 
Llewellyn Professor from Chicago, Cass Sunstein, and to read 
briefly one paragraph which is his conclusion. He appears 
before this Committee a great deal. Quote, ``There can be no 
doubt that the program has been subject to serious legal 
objections and that it is entirely legitimate for Congress to 
make a serious inquiry into those objections. But in the face 
of a legally controversial assertion of power by the President 
of the United States, the preferred course is to begin with a 
careful assessment of the underlying facts and the law, not to 
take the exceptionally rare course of censuring him,'' close 
    Now, you can start my two minutes.
    The New York Times, which disclosed the program and has 
been very tough on the President, had this to say about Senator 
Feingold's resolution, quote, ``The censure proposal is a bad 
idea,'' close quote. The San Diego Union Tribune called the 
censure resolution a, quote, ``stunt that will accomplish 
nothing.'' The Chicago Tribune commented, quote, ``It is hardly 
the kind of act that would warrant censure,'' close quote. The 
Boston Herald observed that, quote, ``Democrats are ignoring 
the pointless effort to censure President Bush.''
    This hearing, I think, is important for the reason that it 
is a further exploration of the President's inherent powers 
that we have to come to grips with, and with the authority of 
the Congress to legislate, which the Congress has 
constitutional authority to do on these subjects, but most of 
all the paramount authority of the courts to be the arbiter 
between the law enforcement official and the citizen.
    The Judiciary Committee can't have any more hearings in 
March because March is over, but we may have set a record of a 
sort in having four of them. I was on the floor when Senator 
Feingold introduced his resolution because I wanted to utilize 
that as a forum to press the President to allow some judicial 
review. But as for the President's conduct, you have this long 
resolution, but not a word about bad faith. And if you don't 
assert bad faith, there is just no basis, it seems to me, for a 
censure resolution.
    I think this hearing has been very, very informative and 
constructive, and I thank all of you gentlemen for 
participating today.
    That concludes our hearing.
    [Whereupon, at 12:27 p.m., the Committee was adjourned.]
    [Submissions for the record follow.]

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