[Congressional Record Volume 153, Number 187 (Friday, December 7, 2007)]
[Senate]
[Pages S15011-S15012]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  Mr. WHITEHOUSE. Mr. President, let me first say how moved I am to be 
on the Senate floor after the remarks of the very distinguished Senator 
from Hawaii commemorating this day. But I rise to discuss a different 
question, a question that involves the Foreign Intelligence 
Surveillance Act.
  We will shortly consider making right the things that are wrong with 
the so-called Protect America Act, a second-rate piece of legislation 
passed in a stampede in August at the behest of the Bush 
administration. It is worth for a moment considering why making this 
right is so important.
  President Bush pressed this legislation not only to establish how our 
Government can spy on foreign agents but how his administration can spy 
on Americans. Make no mistake, the legislation we passed in August is 
significantly about spying on Americans--a business this administration 
should not be allowed to get into except under the closest supervision.
  We have a plain and tested device for keeping tabs on Americans. It 
is our Constitution. Our Constitution has as its most elemental 
provision the separation of governmental powers into three separate 
branches. When the Government feels it is necessary to spy on its own 
citizens, each branch has a role. The executive branch executes the 
laws and conducts surveillance. The legislative branch sets the 
boundaries that protect Americans from improper Government 
surveillance. The judicial branch oversees whether the Government has 
followed the Constitution and the laws that protect U.S. citizens from 
violations of their privacy and their civil rights.
  It sounds basic, but even an elementary understanding of this balance 
of powers eludes the Bush administration. So now we have to repair this 
flawed and shoddy Protect America Act.
  Why are we in Congress so concerned about this legislation? Why is it 
so vital that we energetically insert the role of Congress and the 
courts when the Bush administration seeks to determine the rules under 
which it will spy on Americans? Because look what the Bush 
administration does behind our backs when they think no one is looking.
  For years, under the Bush administration, the Office of Legal Counsel 
within the Department of Justice has issued highly classified, secret 
legal opinions related to surveillance. This is an administration that 
hates answering to an American court, that wants to grade its own 
exams, and OLC is the inside place the administration goes to get legal 
support for its spying program.
  As a member of the Senate Intelligence Committee, I was given access 
to those secret opinions and spent hours poring over them. Sitting in 
that secure room, as a lawyer, as a former U.S. attorney, legal counsel 
to Rhode Island's Governor, and State attorney general, I was 
increasingly dismayed and amazed as I read on.
  To give an example of what I read, I have gotten three legal 
propositions from these secret OLC opinions declassified. Here they 
are, as accurately as my note-taking could reproduce them from the 
classified documents. Listen for yourself, Mr. President; I will read 
all three and then discuss each one.
  One:

       An Executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     Executive order whenever he wishes to depart from the terms 
     of a previous Executive order. Rather than violate an 
     Executive order, the President has instead modified or waived 
     it.

  No. 2:

       The President, exercising his constitutional authority 
     under article II, can determine whether an action is a lawful 
     exercise of the President's authority under article II.

  And 3:

       The Department of Justice is bound by the President's legal 
     determinations.

  Let's start with No. 1. Bear in mind that the so-called Protect 
America Act that was stampeded through this great body in August 
provides no--zero--statutory protections for Americans traveling abroad 
from Government wiretapping--none if you are a businesswoman traveling 
on business overseas; none if you are a father taking the kids on 
vacation to the Caribbean; none if you are visiting your aunts or 
uncles in Italy or Ireland; none even if you are a soldier of the 
United States of America in uniform serving overseas.
  The Bush administration provided in that hastily passed law no 
statutory restrictions on their ability to wiretap you at will, to tap 
your cell phone, your e-mail--whatever--once you are outside the 
borders of the United States. The only restriction is an Executive 
order called 12333 which limits executive branch surveillance to 
Americans whom the Attorney General determines to be agents of a 
foreign power. That is what the Executive order says.
  But what does this administration say about Executive orders?

       An Executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     Executive order whenever he wishes to depart from the terms 
     of a previous Executive order. Rather than violate an 
     Executive order, the President has instead modified or waived 
     it.

  ``Whenever [the President] wishes to depart from the terms of a 
previous Executive order,'' he may do so because ``an Executive order 
cannot limit a President.'' And he does not even have to change the 
Executive order or give notice that he is violating it because by 
``depart[ing] from the Executive order,'' the President ``has instead 
modified or waived it.''
  So unless Congress acts, here is what legally prevents this President 
from wiretapping Americans traveling abroad at will: nothing. Nothing. 
That was among the most egregious flaws in the bill passed during the 
August stampede orchestrated by the Bush administration, and this OLC 
opinion shows why we need to correct it.

  Here is No. 2:

       The President, exercising his constitutional authority 
     under article II, can determine whether an action is a lawful 
     exercise of the President's authority under article II.

  That is right, the President, according to the George W. Bush Office 
of Legal Counsel, has article II power to determine the scope of his 
article II power. Never mind a little decision called Marbury v. 
Madison written by Chief Justice John Marshall in 1803 establishing the 
proposition that it is emphatically the province and the duty

[[Page S15012]]

of the judicial department to say what the law is.
  Does this administration agree that it is emphatically the province 
and the duty of the judicial department to say what the President's 
authority is under article II of the Constitution? No. It is the 
President, according to this Office of Legal Counsel, who decides the 
limits of his own article II power. The question ``whether an action is 
a lawful exercise of the President's authority under article II'' is to 
be determined by the President's own minions ``exercising his 
constitutional authority under article II.'' It really makes one 
wonder: Where do they get these people? You have to be smart, you have 
to be really bright to get a job within the Office of Legal Counsel. 
How can people who are so smart be so misguided?
  And then it gets worse. Remember point 3:

       The Department of Justice is bound by the President's legal 
     determinations.

  Let that sink in a minute. ``The Department of Justice is bound by 
the President's legal determinations.'' We are a nation of laws, not of 
men. This Nation was founded in rejection of the royalist principle 
that ``the king can do no wrong.'' Our Attorney General swears an oath 
to defend the Constitution and the laws of the United States. We are 
not some banana republic in which the officials all have to kowtow to a 
supreme leader.
  Imagine this in another context. Imagine a general counsel to a major 
U.S. corporation telling his board of directors: In this company, the 
counsel's office is bound by the legal determinations of the CEO.
  The board ought to throw that lawyer out. That is malpractice and 
probably even unethical.
  Wherever you are, if you are watching this, do me a favor: The next 
time you are in Washington, DC, take a taxi some evening to the U.S. 
Department of Justice. Stand outside. Look up at that building shining 
against the starry night. Look at the sign outside: The United States 
Department of Justice. Think of the heroes who have served there. Think 
of the battles fought. Think of the late nights, the brave decisions, 
the hard work of advancing and protecting our democracy that has been 
done in those halls. Think about how all that makes you feel.
  Then think about this statement:

       The Department of Justice is bound by the President's legal 
     determinations.

  If you don't feel a difference from what you were feeling a moment 
ago, well, I guess congratulations because there is probably a job for 
you somewhere in the Bush administration. Consider the sad irony that 
this theory was crafted in that very building by the George W. Bush 
Office of Legal Counsel.
  In a nutshell, these three Bush administration legal propositions 
boil down to this: One, I don't have to follow my own rules, and if I 
break them, I don't have to tell you that I am breaking them; two, I 
get to determine what my own powers are; and three, the Department of 
Justice doesn't tell me what the law is, I tell the Department of 
Justice what the law is.
  When the Congress of the United States is willing to roll over for an 
unprincipled President, this is where you end up. We should not even be 
having this discussion, but here we are. I implore my colleagues on 
both sides of the aisle: Reject these feverish legal theories. I 
understand political loyalty; trust me, I do. But let's also be loyal 
to this great institution we serve in the legislative branch of 
Government. Let us also be loyal to the Constitution we took an oath to 
defend from enemies foreign and domestic. And let us be loyal to the 
American people who live each day under that Constitution's principles 
and protections.
  We simply cannot put the authority to wiretap Americans whenever they 
step outside America's boundaries under the exclusive control and 
supervision of the executive branch. We do not allow it when Americans 
are at home; we should not allow it when they travel abroad.
  The principles of congressional legislation and oversight and of 
judicial approval and review are simple and longstanding, and Americans 
deserve their protection wherever on God's green Earth they may travel.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Ohio is 
recognized.

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