[Senate Hearing 109-524]
[From the U.S. Government Publishing Office]
S. Hrg. 109-524
AN EXAMINATION OF THE CALL TO CENSURE THE PRESIDENT
=======================================================================
HEARING
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
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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
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STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESSES
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
AN EXAMINATION OF THE CALL TO CENSURE THE PRESIDENT
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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
hearing.
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.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
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
that.
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
quote.
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.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
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
happened.
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
laws.''
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.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
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.
[Applause.]
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.
[Laughter.]
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
that.
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
statement.
[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.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
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
committees.
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
authorization?
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
force.
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
so.
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.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Well, I would like the opportunity, Mr.
Chairman.
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
day.
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
risk.
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
statement?
Senator Graham.
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE
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
balances.
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
activity.
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.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
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
Virginia.
Thank you very much for joining us this morning, Professor
Turner, and we look forward to your testimony.
STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR, CENTER FOR
NATIONAL SECURITY LAW, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE,
VIRGINIA
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
President.
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
suggest.''
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
Justice.
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
activities.
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
others.
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
yours.
STATEMENT OF BRUCE FEIN, FEIN AND FEIN, WASHINGTON, D.C.
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
Committee.
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
censure.
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
yours.
STATEMENT OF LEE A. CASEY, BAKER AND HOSTETLER, WASHINGTON,
D.C.
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
yours.
STATEMENT OF JOHN W. DEAN, WHITE HOUSE COUNSEL TO PRESIDENT
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
Watergate.
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
summer.
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
proceeding.
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.
STATEMENT OF JOHN SCHMIDT, MAYER, BROWN, ROWE AND MAW, CHICAGO,
ILLINOIS
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
side.
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
that--
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
``shameful.''
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
collection.
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
frustration?
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
comments.
Mr. Dean. Yes, they were.
Senator Hatch. They seem to rebut what you are saying here
today.
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
evidence.
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
constitutional.''
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
indefinitely.
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
frightening.
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
pre-9/11.
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
practice.
Senator Feingold. Thank you, Mr. Dean. Thank you, Mr.
Chairman.
Chairman Specter. Well, it is my turn again. Is Senator
Graham in the back room? If so, he will come back for a second
round.
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
score.
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
constitutionality?
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
line.
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
authority.
Would you give them credit for really believing what they
believe?
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
that--
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
question.
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
the--
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
President.
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
authority?
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
absurd.
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
knowing.
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
conscience.''
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
law-breaker.
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
it?
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
censure.
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
wrongdoing?
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
censure.
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
President--
Senator Graham. Well, could you give me a wonderfully short
answer?
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
it.
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
power.
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
detention.
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
distinction.
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
war.
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
opinion--
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
Review.
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
them.
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
Committee.
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
court.
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
statute.
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
memo.
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
program.
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
substitute.
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
privacy.
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
person.
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
quote.
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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