Kennedy, Reid, Durbin, Feingold Join To Ask More Questions on Domestic Spying

Today, as President Bush continued his PR campaign to justify his domestic spying program, Senator Edward M. Kennedy joined Senators Reid, Durbin and Feingold on a letter to President Bush requesting more information on the Administration’s legal analysis and the claim that current law is inadequate.

Upon sending the letter, Senator Kennedy said, “Congress and the American people deserve full and honest answers about the Administration’s wiretapping activities. No one is above the law. The President needs to work with Congress to protect both our security and our liberty, while restoring the public trust.”

The text of the letter is below, and a PDF copy with signatures is available upon request.

January 25, 2006

President George W. Bush
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear President Bush:

We strongly support efforts to do everything possible, within the limits of the law, to combat terrorism. We are therefore gravely concerned that sometime in 2001, in apparent violation of federal law, you authorized the National Security Agency (NSA) to eavesdrop on Americans in the United States without court approval.

When you concluded over four years ago that existing law did not provide you sufficient authority to conduct this program, you had an obligation to propose changes in the law to Congress. Rather than doing so, you have apparently chosen to ignore the law. We urgently request that you notify us immediately what changes in the law you believe are necessary to permit effective surveillance of suspected terrorists.

The Foreign Intelligence Surveillance Act (FISA) gives the government broad authority to wiretap suspected terrorists. Federal law provides that FISA and the criminal wiretap statute “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f). FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as permitted by statute. 50 U.S.C. § 1809.

In fact, you have recognized that it is improper to subject Americans in the United States to warrantless wiretapping. In a speech on April 20, 2004, you said:

Now, by the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.

You and officials in your administration have repeatedly asserted that FISA does not provide adequate authority to monitor suspected terrorists. However, FISA authorizes monitoring suspected terrorists, who are the purported targets of NSA’s warrantless wiretaps. Moreover, FISA includes an emergency exception for situations where there is insufficient time to obtain judicial approval before beginning a wiretap. This exception allows the government to commence electronic surveillance immediately, as long as it seeks a court order within 72 hours. 50 U.S.C. § 1805(f). During the course of its existence, the FISA court has approved over 19,000 wiretap applications from the government while disapproving only four.

It therefore appears that your administration has sufficient authority under FISA to engage in the activities you have described – time-sensitive electronic surveillance of suspected terrorists.

Officials in your administration have asserted that the government’s internal process for preparing and authorizing a FISA application is too burdensome and slow to monitor suspected terrorists effectively. To be clear, your administration’s bureaucratic and paperwork delays are not an excuse for violating the law. As the non-partisan Congressional Research Service (CRS) concluded:

To the extent that a lack of speed and agility is a function of internal Department of Justice procedures and practices under FISA, it may be argued that the President and the Attorney General could review these procedures and practices in order to introduce more streamlined procedures to address such needs.”

CRS Memorandum, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth A. Bazan & Jennifer K. Elsea.

If you or officials in your administration believe that FISA, or any law, does not give you enough authority to combat terrorism, you should propose changes in the law to Congress. You may not simply disregard the law.

In your December 19, 2005 press conference, you called FISA “a very important tool.” FISA is more than a tool; it is a law, and we are a nation of laws. Under Article 1 of the Constitution, Congress has the power to make laws. Under Article 2 of the Constitution, you must take care that the laws are faithfully executed.

In order to win the war on terrorism, we must maintain the high ground by respecting the rule of law as embodied in our Constitution. To do otherwise makes us weaker as a nation and harms our national security. The Supreme Court long ago rejected the notion that there is a wartime exception to the Constitution’s separation of powers. As the Court concluded in the historic Youngstown Steel case: “The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute…. The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.” 343 U.S. 579, 587-89 (1952).

In light of the very serious nature of this matter, we request that you respond to this letter as soon as possible, and, in any case, no later than February 1, 2006.

Sincerely,

Senators Reid, Kennedy, Durbin, Feingold

–Crystal Patterson