[Congressional Record Volume 148, Number 117 (Tuesday, September 17, 2002)]
[Senate]
[Pages S8649-S8652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             ANNIVERSARY OF THE SIGNING OF THE CONSTITUTION

  Madam President, as I stated earlier, today is September 17, the 
215th anniversary of the signing of the Constitution in 1787. The 
Constitution is not noted for its soaring rhetoric or for the emotional 
power of its language, but it is nonetheless the most important 
document in our Nation's history.
  Bar none, this Constitution that I hold in my hand is the most 
important document in our Nation's history. And it was meant, according 
to that eminent jurist John Marshall, to endure for ages--ages. It is 
not irrelevant. This is relevant. This Constitution is relevant. It is, 
front and center, relevant to today's issues.
  The Declaration of Independence--which is also contained in this 
little book which I hold in my hand--with its ringing phrases, may have 
been a turning point in history, having laid out the case for breaking 
our ties with the Crown and setting us on the path to rebellion and 
liberty. There is no question in my mind but that it was a turning 
point.
  But the Constitution is the foundation upon which our subsequent 
history was built. In its plain speech, it forms the blueprint for an 
entirely new form of government never before seen in history and, to my 
mind, not yet matched by any other.
  I am happy to call attention to this day--to the anniversary of the 
signing of the Constitution.
  As the Senate has been debating the homeland security bill, I have 
several times raised constitutional concerns about the way the homeland 
security bill is structured. In doing so, I have often felt like a 
voice crying out in the wilderness. Like a tree falling with no one to 
hear it, I have wondered if I was in fact making any progress and 
wondered if I was making any sound while I was talking. Was I making 
any sound?
  I hope my colleagues and the American people will look at the 
Constitution, and I hope they will read it and they will study it. It 
is not long. It is not a huge volume. It doesn't contain many pages, 
and it isn't difficult to understand. But each time I read it, it seems 
I always find something new. It is like my reading of the Bible. It is 
like my reading of Shakespeare. I always find what seems to be 
something new.
  The Constitution is not written in fancy, lawyerlike phrases, or 
flowery 18th century language. Every citizen was meant to understand it 
and to participate in the exercise of government--that being the surest 
defense against tyranny.
  It is much like the Magna Carta, which indeed is a taproot, and 
beyond--a taproot from which liberty sprang and a taproot from which 
our Constitution sprang--the Magna Carta, a great charter, the charter 
of the English people, which was signed by King John on June 15, 1215. 
That was simple, but it was easily understood. It was written for 
ordinary people to understand, and it has been read and reread by 
millions through the centuries.
  So read the Constitution. Look to history. I believe my concerns will 
be shared.
  Article I of the Constitution outlines the powers of the legislature. 
It vests with the Congress the power to make laws. There it is. The 
first section of the first article says that all legislative powers 
herein are vested in the Congress of the United States, which shall 
consist of a Senate and a House of Representatives. There it is--the 
power to make laws, the powers of the legislature.
  Also, article I of the Constitution sets forth the qualifications and 
means of selecting representatives and the basic requirements for 
congressional operations.
  Therein one will find in section 2 where the Constitution sets forth 
the creation of the House of Representatives, and then section 3 of the 
Constitution lays down the precepts and terms and the basis for the 
creation of the Senate.
  The Constitution is a user manual for Congress, the operating 
software of the legislative branch. Article I, section 8, is the 
critical list of congressional powers, including subsection 18 which 
grants to Congress the power:

       To make all Laws which shall be necessary and proper for 
     carrying into Execution the foregoing Powers, and all other 
     Powers vested by this Constitution in the Government of the 
     United States, or in any Department or Officer thereof.

  You heard it here. Powers may be vested by the Constitution in the 
Government and its Departments or officers. But the Congress must pass 
the

[[Page S8650]]

necessary laws for those powers to be exercised. It is meant to be a 
cooperative affair, with Congress playing a critical role.
  Further, in section 9, subsection 7, of article I, the Constitution 
states that:

       No money shall be drawn from the Treasury, but in 
     Consequence of Appropriations made by Law; and a regular 
     Statement and Account of the Receipts and Expenditures of 
     all public Money shall be published from time to time.

  Congress again plays a critical role in providing funds for 
Government operations, and requires that the public be kept informed 
about how those funds are spent.
  One can trace our Nation's history going back into the centuries and 
can trace these powers in the colonial governments, in the 
representative assemblies of the Colonies. The people in the Colonies 
had faith in their representative assemblies. Going back to the history 
of England, this has often been referred to as the ``motherland.''
  Of course, we all know that the Spanish populated various areas in 
the South and Southwest, St. Augustine, and New Mexico, and other 
areas. But the individuals who wrote the Constitution, who met in 
Philadelphia, were British subjects. Some of them were born in the 
British Isles. They were English-speaking individuals. They knew about 
the history of Englishmen, how the English had struggled to secure the 
rights of the people, the power of the purse, to secure the control of 
the public purse for Parliament.
  They knew that Parliament was created in the early 1300s during the 
reigns of Edward the First, Second, and Third. And they knew that the 
power of the purse had been lodged over a long period of centuries in 
Commons. That was made very clear by the English Bill of Rights which 
was enacted by Parliament in 1689.
  So there it was, the power of the purse, lodged in the hands of the 
people's elected Representatives in Commons and now in Congress.
  So Congress, as I say, plays a critical role in providing funds for 
Government operations, and the public must be kept informed about how 
those funds are spent.
  Part of that process, as I have indicated, by long tradition, has 
occurred during the testimony of Government officials before the 
Congress regarding their budget requests and the manner in which 
previous appropriations have been spent. In the case of the proposed 
Department of Homeland Security, with its 170,000 employees and its 
enormous budget, such openness is equally to be expected, and should be 
demanded, by the taxpaying public.

  Article II of the Constitution concerns the establishment of the 
Chief Executive, concerns the powers of the President, the 
qualifications and means of selecting the President, and his oath of 
office being required. Article II, section 2, subsection 2 notes that 
the President:

     shall nominate, and by and with the Advice and Consent of the 
     Senate, shall appoint Ambassadors, other public Ministers and 
     Consuls, Judges of the supreme Court, and all other Officers 
     of the United States, whose Appointments are not herein 
     otherwise provided for, and which shall be established by Law 
     . . .

  Well, Madam President, that would seem clearly to include the 
proposed Director of Homeland Security will be certainly one to whom 
the provision in the Constitution is addressing, except that the 
subsection continues:

     but the Congress may by Law vest the Appointment of such 
     inferior Officers, as they think proper, in the President 
     alone, in the Courts of Law, or in the Heads of Departments.

  If the Congress does not wish to provide for accountability or wish 
to have any voice in the selection of important Government officials, 
the Congress must take deliberate action to divest itself of its 
constitutional role in the operations of Government.
  The authors of the Constitution clearly foresaw the growth of 
Government and recognized that the Congress could consume itself in 
processing the appointments of hundreds of minor officials. However, I 
sincerely doubt that these wise men would expect that a cabinet level 
official heading up an enormous department with a mission of grave 
importance to the Nation would receive less scrutiny and less oversight 
than so many officials whose positions do not involve the defense of 
our vital domestic security. That does not make sense. It is not 
logical. It is ludicrous. The Senate would not provide its advice and 
consent in the selection of the Director of Homeland Security, while 
Assistant Secretaries and Deputy Assistant Secretaries in other 
Departments are subject to confirmation? I cannot believe that the 
Senate cares less for the Department of Homeland Security and its 
Director than it does for so many other Government officials with 
smaller budgets and more narrow portfolios.
  No, Madam President, I can only surmise that any willingness on the 
part of the Senate to abrogate its constitutional responsibilities and 
powers comes from a lack of attention to the deceptively plain language 
of the Constitution itself. Perhaps we should gussie it up, wrap it 
legalistic bells and whistles, enshroud it in ``wheras-es'' and ``let 
it therefore be resolved'' clauses, so that it receives the respect 
that it deserves. But, in fact, even Article III, concerning the 
judicial power of the United States, has no highfaluting lawyer words. 
Article IV, concerning the powers of the States; Article V, the process 
by which the Constitution may be amended; Article VI, making the 
Constitution the supreme law of the land, and Article VII, regarding 
ratification--none of these short Articles contains any obscure, 
opaque, misleading, or confusing language. Really, considering how many 
lawyers were involved in the drafting of the Constitution--a little 
more than half of the delegates to the Constitutional Convention were 
lawyers--it is a model of clarity and clean writing.
  Indeed, the men who drafted the Constitution were as much heroes as 
those who signed the Declaration of Independence, making themselves 
known as traitors and wanted men in England, traitors to the Crown. 
They were treasonous. They committed treason. And they could have been 
hunted down and sent off to England and been executed. The Framers of 
the Constitution undertook a mighty task. They had to preserve the 
Nation's hard-won freedom by correcting the flaws in the Articles of 
Confederation that made the Nation weak and vulnerable to attack from 
without and rebellion from within. Drawing upon the lessons of history 
and the ideals of the Enlightenment, they set themselves the job of 
devising a novel form of government that could encompass the great 
diversity of the new Nation--from the mercantile North to the 
slaveholding South, from the settled East to the frontier West, with 
citizens from cultures around the globe.

  In Philadelphia, in the hot summer of 1789, after lengthy and 
contentious debate, after considering and rejecting proposal after 
proposal, and after nearly 600 separate votes, they produced the 
miracle that is our Constitution. And so there you have it. In over 200 
years, it has been amended 27 times, and 10 of the 27 amendments were 
ratified early on, by 1791.
  In today's computer-minded lexicon, the Constitution is the mother 
board without which our thinking, evolving, machine of Government could 
not function. It is the enduring standard operating system, running the 
complex interactive software of national life. It is our embedded code, 
and when we overwrite it without careful consideration, we may well be 
planting the worms of our own destruction.
  When the Executive acquires too much power and freedom of action 
unchecked by the balancing powers and oversight of the legislative 
branch, our careful system of checks and balances is in danger of being 
corrupted.
  So on this anniversary of the signing of the Constitution, we would 
do well to revisit this miracle of compromise and foresight. We would 
do well to marvel at the abilities of the men who crafted this 
document. We would do well to rededicate ourselves to its careful 
preservation that it might see us through another two centuries and 
more.

     Our fathers in a wondrous age,
     Ere yet the Earth was small,
     Ensured to us an heritage,
     And doubted not at all

     That we, the children of their heart,
     Which then did beat so high,
     In later time should play like part
     For our posterity.

     Then fretful murmur not they gave
     So great a charge to keep,
     Nor dream that awestruck time shall save
     Their labour while we sleep.

     Dear-bought and clear, a thousand year

[[Page S8651]]

     Our fathers' title runs.
     Make we likewise their sacrifice.
     Defrauding not our sons.

  I ask unanimous consent that the article from the Washington Post 
titled ``Secret Court Rebuffs Ashcroft,'' to which I have already 
referred, and the New York Times op-ed titled ``Secrecy Is Our Enemy,'' 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Aug. 23, 2002]

                     Secret Court Rebuffs Ashcroft

                    (By Dan Egen and Susan Schmidt)

       The secretive federal court that approves spying on terror 
     suspects in the United States has refused to give the Justice 
     Department broad new powers, saying the government had 
     misused the law and misled the court dozens of times, 
     according to an extraordinary legal ruling released 
     yesterday.
       A May 17 opinion by the court that oversees the Foreign 
     Intelligence Surveillance Act (FISA) alleges that Justice 
     Department and FBI officials supplied erroneous information 
     to the court in more than 75 applications for search warrants 
     and wiretaps, including one signed by then-FBI Director Louis 
     J. Freeh.
       Authorities also improperly shared intelligence information 
     with agents and prosecutors handling criminal cases in New 
     York on at least four occasions, the judges said.
       Given such problems, the court found that new procedures 
     proposed by Attorney General John D. Ashcroft in March would 
     have given prosecutors too much control over 
     counterintelligence investigations and would have effectively 
     allowed the government to misuse intelligence information for 
     criminal cases, according to the ruling.
       The dispute between the Justice Department and the FISA 
     court, which has raged behind closed doors until yesterday, 
     strikes at the heart of Ashcroft's attempts since Sept. 11 to 
     allow investigators in terrorism and espionage to share more 
     information with criminal investigators.
       Generally, the Justice Department must seek the FISA 
     court's permission to give prosecutors of criminal cases any 
     information gathered by the FBI in an intelligence 
     investigation. Ashcroft had proposed that criminal-case 
     prosecutors be given routine access to such intelligence 
     information, and that they be allowed to direct intelligence 
     investigation as well as criminal investigation.
       The FISA court agreed with other proposed rule changes. But 
     Ashcroft filed an appeal yesterday over the rejected 
     procedures that would constitute the first formal challenge 
     to the FISA court in its 23-year history, officials, said.
       ``We believe the court's action unnecessarily narrowed the 
     Patriot Act and limited our ability to fully utilize the 
     authority Congress gave us,'' the Justice Department said in 
     a statement.
       The documents released yesterday also provide a rare 
     glimpse into the workings of the almost entirely secret FISA 
     court, composed of a rotating panel of federal judges from 
     around the United States and, until yesterday, had never 
     jointly approved the release of one of its opinions. 
     Ironically, the Justice Department itself had opposed the 
     release.
       Stewart Baker, former general counsel of the National 
     Security Agency, called the opinion a ``a public rebuke.
       ``The message is you need better quality control,'' Baker 
     said. ``The judges want to ensure they have information they 
     can rely on implicitly.''
       A senior Justice Department official said that the FISA 
     court has not curtailed any investigations that involved 
     misrepresented or erroneous information, nor has any court 
     suppressed evidence in any related criminal case. He said 
     that many of the misrepresentations were simply repetitions 
     of earlier errors, because wiretap warrants must be renewed 
     every 90 days. The FISA court approves about 1,000 warrants a 
     year.
       The department discovered the misrepresentation and 
     reported them to the FISA court beginning in 2000.
       Enacted in the wake of the domestic spying scandals of the 
     Nixon era, the FISA statute created a secret process and 
     secret court to review requests to wiretap phones and conduct 
     searches aimed at spies, terrorists and other U.S. enemies.
       FISA warrants have been primarily aimed at intelligence-
     gathering rather than investigating crimes. But Bush 
     administration officials and many leading lawmakers have 
     complained since Sept. 11 that such limits hampered the 
     ability of officials to investigate suspected terrorists, 
     including alleged hijacking conspirator Zacaris Moussaoui.
       The law requires agents to be able to show probable cause 
     that the subject of the search is an agent of a foreign 
     government or terrorist group, and authorizes strict limits 
     on distribution of information because the standards for 
     obtaining FISA warrants are much lower than for traditional 
     criminal warrants.
       In Moussaoui's case, the FBI did not seek an FISA warrant 
     to search his laptop computer and other belongings in the 
     weeks prior to the Sept. 11 attacks because some officials 
     believed that they could not adequately show the court 
     Moussaoui's connection to a foreign terrorist group.
       The USA Patriot Act, a set of anti-terrorism measures 
     passed last fall, softened the standards for obtaining 
     intelligence warrants, requiring that foreign intelligence be 
     a significant, rather than primary, purpose of the 
     investigation. The FISA court said in its ruling that the 
     new law was not relevant to its decision.
       Despite its rebuke, the court left the door open for a 
     possible solution, noting that its decision was based on the 
     existing FISA statute and that lawmakers were free to update 
     the law if they wished.
       Members of the Senate Judiciary Committee have indicated 
     their willingness to enact such reforms but have complained 
     about resistance from Ashcroft. Chairman Patrick J. Leahy (D-
     Vt.) said yesterday's release was a ``ray of sunshine'' 
     compared to a ``lack of cooperation'' from the Bush 
     administration.
       Sen. Charles E. Grassley (R-Iowa), another committee 
     member, said the legal opinion will ``help us determine 
     what's wrong with the FISA process, including what went wrong 
     in the Zacarias Moussaoui case. The stakes couldn't be higher 
     for our national security at home and abroad.''
       The ruling, signed by the court's previous chief, U.S. 
     District Judge Royce C. Lamberth, was released by the new 
     presiding judge, U.S. District Judge Colleen Kollar-Kotelly.
       FBI and Justice Department officials have said that the 
     fear of being rejected by the FISA court, complicated by 
     disputes such as those revealed yesterday, has at times 
     caused both FBI and Justice officials to take a cautious 
     approach to intelligence warrants.
       Until the current dispute, the FISA court had approved all 
     but one application sought by the government since the 
     court's inception. Civil libertarians claim that record shows 
     that the court is a rubber stamp for the government; 
     proponents of stronger law enforcement say the record reveals 
     a timid bureaucracy only willing to seek warrants on sure 
     winners.
       The opinion itself--and the court's unprecedented decision 
     to release it--suggest that relations between the court and 
     officials at the Justice Department and the FBI have frayed 
     badly.
       FISA applications are voluminous documents, containing 
     boilerplate language as well as details specific to each 
     circumstance. The judges did not say the misrepresentations 
     were intended to mislead the court, but said that in addition 
     to erroneous statements, important facts have been omitted 
     from some FISA applications.
       In one case, the FISA judges were so angered by 
     inaccuracies in affidavits submitted by FBI agent Michael 
     Resnick that they barred him from ever appearing before the 
     court, according to the ruling and government sources.
       Referring to the ``the troubling number of inaccurate FBI 
     affidavits in so many FISA applications,'' the court said in 
     its opinion: ``In virtually every instance, the government's 
     misstatements and omissions in FISA applications and 
     violations of the Court's orders involved information sharing 
     and unauthorized disseminations to criminal investigators and 
     prosecutors.''
       The judges were also clearly perturbed at a lack of answers 
     about the problems from the Justice Department, which is 
     still conducting an internal investigation into the lapses.
       ``How these misrepresentations occurred remains unexplained 
     to the court,'' the opinion said.
                                  ____


                [From the New York Times, Sept. 2, 2002]

                          Secrecy Is Our Enemy

                            (By Bob Herbert)

       You want an American hero? A real hero?
       I nominate Judge Damon J. Keith of the United States Court 
     of Appeals for the Sixth Circuit.
       Judge Keith wrote an opinion, handed down last Monday by a 
     three-judge panel in Cincinnati, that clarified and 
     reaffirmed some crucially important democratic principles 
     that have been in danger of being discarded since the 
     terrorist attacks last Sept. 11.
       The opinion was a reflection of true patriotism, a 21st-
     century echo of a pair of comments made by John Adams nearly 
     two centuries ago. ``Liberty,'' said Adams, ``cannot be 
     preserved without a general knowledge among the people.''
       And in a letter to Thomas Jefferson in 1816, Adams said, 
     ``Power must never be trusted without a check.''
       Last Monday's opinion declared that it was unlawful for the 
     Bush administration to conduct deportation hearings in secret 
     whenever the government asserted that the people involved 
     might be linked to terrorism.
       The Justice Department has conducted hundreds of such 
     hearings, out of sight of the press and the public. In some 
     instances the fact that the hearings were held was kept 
     secret.
       The administration argued that opening up the hearings 
     would compromise its fight against terrorism. Judge Keith, 
     and the two concurring judges in the unanimous ruling, took 
     the position that excessive secrecy compromised the very 
     principles of free and open government that the fight against 
     terror is meant to protect.
       The opinion was forceful and frequently eloquent.
       ``Democracies die behind closed doors,'' wrote Judge Keith.

[[Page S8652]]

       He said the First Amendment and a free press protect the 
     ``people's right to know'' that their government is acting 
     fairly and lawfully. ``When government begins closing 
     doors,'' he said, ``it selectively controls information 
     rightfully belonging to the people. Selective information is 
     misinformation.''
       He said, ``A government operating in the shadow of secrecy 
     stands in complete opposition to the society envisioned by 
     the framers of our Constitution.''
       The concurring judges were Martha Craig Daughtrey and James 
     G. Carr. The panel acknowledged--and said it even shared--
     ``the government's fear that dangerous information might be 
     disclosed in some of these hearings.'' But the judges said 
     when that possibility arises, the proper procedure for the 
     government would be to explain ``on a case-by-case basis'' 
     why the hearing should be closed.
       ``Using this stricter standard,'' wrote Judge Keith, ``does 
     not mean that information helpful to terrorists will be 
     disclosed, only that the government must be more targeted and 
     precise in its approach.''
       A blanket policy of secrecy, the court said, is 
     unconstitutional.
       The case that led to the panel's ruling involved a Muslim 
     clergyman in Ann Arbor, Mich., Rabih Haddad, who overstayed 
     his tourist visa. The ruling is binding on courts in 
     Kentucky, Michigan, Ohio and Tennessee and may serve as a 
     precedent in other jurisdictions.
       The attorneys who argued the case against the government 
     represented four Michigan newspapers and Representative John 
     Conyers Jr., a Michigan Democrat. They took no position on 
     whether Mr. Haddad should be deported.
       ``Secrecy is the evil here,'' said Herschel P. Fink, a 
     lawyer who represented The Detroit Free Press. He said the 
     government ``absolutely'' had an obligation to ``vigorously'' 
     fight terrorism. But excessive secrecy, he said, was 
     intolerable.
       ``We just want to watch,'' said Mr. Fink.
       Judge Keith specifically addressed that issue. The people, 
     he said, had deputized the press ``as the guardians of their 
     liberty.''
       The essence of the ruling was the reaffirmation of the 
     importance of our nation's system of checks and balances. 
     While the executive branch has tremendous power and authority 
     with regard to immigration issues and the national defense, 
     it does not have carte blanche.
       Lee Gelernt, a lawyer with the American Civil Liberties 
     Union who represented some of the plaintiffs in the case, 
     noted that the administration has been arguing since Sept. 11 
     that it needs much more authority to act unilaterally and 
     without scrutiny by the public and the courts.
       He said last week's ruling was the most recent and, thus 
     far, the most important to assert, ``That's not the way it's 
     done in our system.''

     

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