Say Thanks to Senator Russ Feingold - for introducing a resolution to censure President Bush. Send him your support at:
Here is what I sent.
Thank you, Senator Feingold, for introducing a resolution to censure the President. Back in 1998 and 1999, many said, "What about the rule of law?"
I think your resolution calls for this, for behavior worse than President Clinton. It would send a clear message to thsi Administration that they are not above the law.
I salute your courage and integrity, including how you answered Soledad O'Brien's Republican talking points laden questions.
Senator Russ Feingold
Introducing a Resolution to Censure President George W. Bush
when the President of the
The President authorized an illegal program to spy on American citizens on American soil, and then misled Congress and the public about the existence and legality of that program. It is up to this body to reaffirm the rule of law by condemning the President’s actions.
All of us in
this body took an oath to support and defend the Constitution of the
And we must do that. The President’s actions demand a formal judgment from Congress.
At moments in our history like this, we are reminded why the founders balanced the powers of the different branches of government so carefully in the Constitution. At the very heart of our system of government lies the recognition that some leaders will do wrong, and that others in the government will then bear the responsibility to do right.
This President has done wrong. This body can do right by condemning his conduct and showing the people of this nation that his actions will not be allowed to stand unchallenged.
To date, members of Congress have responded in very different ways to the President’s conduct. Some are responding by defending his conduct, ceding him the power he claims, and even seeking to grant him expanded statutory authorization powers to make his conduct legal. While we know he is breaking the law, we do not know the details of what the President has authorized or whether there is any need to change the law to allow it, yet some want to give him carte blanche to continue his illegal conduct. To approve the President’s actions now, without demanding a full inquiry into this program, a detailed explanation for why the President authorized it, and accountability for his illegal actions, would be irresponsible. It would be to abandon the duty of the legislative branch under our constitutional system of separation of powers while the President recklessly grabs for power and ignores the rule of law.
Others in Congress have taken important steps to check the President. Senator Specter has held hearings on the wiretapping program in the Judiciary Committee. He has even suggested that Congress may need to use the power of the purse in order to get some answers out of the Administration. And Senator Byrd has proposed that Congress establish an independent commission to investigate this program.
As we move forward, Congress will need to consider a range of possible actions, including investigations, independent commissions, legislation, or even impeachment. But, at a minimum, Congress should censure a president who has so plainly broken the law.
Our founders anticipated that these kinds of abuses would occur. Federalist Number 51 speaks of the Constitution’s system of checks and balances:
“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Mr. President, we are faced with an executive branch that places itself above the law. The founders understood that the branches must check each other to control abuses of government power. The president’s actions are such an abuse, Mr. President. His actions must be checked, and he should be censured.
exploited the climate of anxiety after
That was not the case with the illegal domestic wiretapping program authorized by the President shortly after September 11th. The President violated the law, ignored the Constitution and the other two branches of government, and disregarded the rights and freedoms upon which our country was founded. No one questions whether the government should wiretap suspected terrorists. Of course we should, and we can under current law. If there were a demonstrated need to change that law, Congress could consider that step. But instead the President is refusing to follow that law while offering the flimsiest of arguments to justify his misconduct. He must be held accountable for his actions.
The facts are
straightforward: Congress passed the Foreign Intelligence Surveillance Act,
known as “FISA”, nearly 30 years ago to ensure that as we wiretap suspected
terrorists and spies, we also protect innocent Americans from unjustified
government intrusion. FISA makes it a crime to wiretap Americans on
Not only did the President break the law, he also actively misled Congress and the American people about his actions, and then, when the program was made public, about the legality of the NSA program.
He has fundamentally violated the trust of the American people.
The President’s own words show just how seriously he has violated that trust.
We now know
that the NSA wiretapping program began not long after September 11th. Before
the existence of this program was revealed, the President went out of his way
in several speeches to assure the public that the government was getting court
orders to wiretap Americans in the
In fact, a lot had changed, but the President wasn’t being upfront with the American people.
In all of these cases, the President knew he wasn’t telling the complete story. But engaged in tough political battle during the presidential campaign, and later over Patriot Act reauthorization, he wanted to convince the public that a systems of checks and balances was in place to protect innocent people from government snooping. 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.
This conduct is unacceptable. The President had a duty to play it straight with the American people. But for political purposes, he ignored that duty.
After a New York Times story exposed the NSA program in December of last year, the White House launched an intensive effort to mislead the American people yet again. No one would come to testify before Congress until February, but the President’s surrogates held press conferences and made speeches to try to convince the public that he had acted lawfully.
Most troubling of all, the President himself participated in this disinformation campaign. In the State of the Union address, he implied that the program was necessary because otherwise the government would be unable to wiretap terrorists at all. That is simply untrue. In fact, nothing could be further from the truth. You don’t need a warrant to wiretap terrorists overseas – period. You do need a warrant to wiretap Americans on American soil and Congress passed FISA specifically to lay out the rules for these types of domestic wiretaps.
FISA created a
secret court, made up of judges who develop national security expertise, to
issue warrants for surveillance of suspected terrorists and spies. These are
the judges from whom the Bush Administration has obtained thousands of warrants
since 9/11. They are the judges who review applications for business records
orders and wiretapping authority under the Patriot Act. The Administration has
almost never had a warrant request rejected by those judges. It has used the
The Administration has said that it ignored FISA because it takes too long to get a warrant under that law. But we know that in an emergency, where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits the wiretap to be executed immediately as long as the government goes to the court within 72 hours. The Attorney General has complained that the emergency provision does not give him enough flexibility, he has complained that getting a FISA application together or getting the necessary approvals takes too long. But the problems he has cited are bureaucratic barriers that the executive branch put in place, and could remove if it wanted.
permits the Attorney General to authorize unlimited warrantless
electronic surveillance in the
has argued that Congress gave him authority to wiretap Americans on
particular claim is further undermined by congressional approval of the Patriot
Act just a few weeks after we passed the Authorization for the Use of Military
Force. The Patriot Act made it easier for law enforcement to conduct
surveillance on suspected terrorists and spies, while maintaining FISA’s baseline requirement of judicial approval for
wiretaps of Americans in the
In addition, in the intelligence authorization bill passed in December 2001, we extended the emergency authority in FISA, at the Administration’s request, from 24 to 72 hours. Why do that if the President has the power to ignore FISA? That makes no sense at all.
has also said that his inherent executive power gives him the power to approve
this program. But here the President is acting in direct violation of a
criminal statute. That means his power is, as Justice Jackson said in the steel
seizure cases half a century ago, “at its lowest ebb.” A letter from a group of
law professors and former executive branch officials points out that “every
time the Supreme Court has confronted a statute limiting the
Commander-in-Chief’s authority, it has upheld the statute.” The Senate reports
issued when FISA was enacted confirm the understanding
that FISA overrode any pre-existing inherent authority of the President. As the
1978 Senate Judiciary Committee report stated, FISA “recognizes no inherent
power of the president in this area.” And “Congress has declared that this
statute, not any claimed presidential power, controls.” Contrary to what the
President told the country in the State of the
The President’s claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless.
But it is one thing to make a legal argument that has no real support in the law. It is much worse to do what the President has done, which is to make misleading statements about what prior Presidents have done and what courts have approved, to try to make the public believe his legal arguments are much stronger than they are.
in the State of the
In the same
speech, the President referred to other Presidents in American history who
cited executive authority to order warrantless
surveillance. But of course, those past presidents – like Wilson and Roosevelt
– were acting before the Supreme Court decided in 1967 that our communications
are protected by the Fourth Amendment, and before Congress decided in 1978 that
the executive branch could no longer unilaterally decide which Americans to
wiretap. I asked the Attorney General about this issue when he testified before
the Judiciary Committee. And neither he nor anyone in the Administration has
been able to come up with a single prior example of wiretapping inside the
President’s arguments in the State of the
The President also has argued that periodic internal executive branch review provides an adequate check on the program. He has even characterized this periodic review as a safeguard for civil liberties. But we don’t know what this check involves. And we do know that Congress explicitly rejected this idea of unilateral executive decision-making in this area when it passed FISA.
Finally, the President has tried to claim that informing a handful of congressional leaders, the so-called Gang of Eight, somehow excuses breaking the law. Of course, several of these members said they weren’t given the full story. And all of them were prohibited from discussing what they were told. So the fact that they were informed under these extraordinary circumstances does not constitute congressional oversight, and it most certainly does not constitute congressional approval of the program.
doesn’t even comply with the National Security Act, which requires the entire
memberships of the House and Senate Intelligence Committee to be “fully and
currently informed of the intelligence activities of the
In addition, we now know that some of the Gang of Eight expressed concern about the program. The Administration ignored their protests. One of the eight members of Congress who has been briefed about the program, Congresswoman Jane Harman, ranking member of the House Intelligence Committee, has said she sees no reason why the Administration cannot accomplish its goals within the law as currently written.
None of the President’s arguments explains or excuses his conduct, or the NSA’s domestic spying program. Not one. It is hard to believe that the President has the audacity to claim that they do.
And perhaps that is what is most troubling here, Mr. President. Even more troubling than the arguments the President has made is what he relies on to make them convincing – the credibility of the office of the President itself. He essentially argues that the American people should trust him simply because of the office he holds.
But Presidents don’t serve our country by just asking for trust, they must earn that trust, and they must tell the truth.
This President hides behind flawed legal arguments, and even behind the office he holds, but he cannot hide from what he has created: nothing short of a constitutional crisis. The President has violated the law, and Congress must respond. Congress must investigate and demand answers. Congress should also determine whether current law is inadequate and address that deficiency if it is demonstrated. But before doing so, Congress should ensure that there is accountability for authorizing illegal conduct.
A formal censure by Congress is an appropriate and responsible first step to assure the public that when the President thinks he can violate the law without consequences, Congress has the will to hold him accountable. If Congress does not reaffirm the rule of law, we will create another failure of leadership, and deal another blow to the public’s trust.
The President’s wrongdoing demands a response. And not just a response that prevents wrongdoing in the future, but a response that passes judgment on what has happened. We in the Congress bear the responsibility to check a President who has violated the law, who continues to violate the law, and who has not been held accountable for his actions.
Passing a resolution to censure the President is a way to hold this President accountable. A resolution of censure is a time-honored means for the Congress to express the most serious disapproval possible, short of impeachment, of the Executive’s conduct. It is different than passing a law to make clear that certain conduct is impermissible or to cut off funding for certain activities. Both of those alternatives are ways for Congress to affect future action. But when the President acts illegally, he should be formally rebuked. He should be censured.
The founders anticipated abuses of executive power by creating a balance of powers in the Constitution. Supporting and defending the Constitution, as we have taken an oath to do, require us to preserve that balance, and to have the will to act. We must meet a serious transgression by the President with a serious response. We must work, as the founders urged us in Federalist Number 51, to control the abuses of government.
Constitution looks to the Congress to right the balance of power. The American
people look to us to take action, to speak out, with one clear voice, against
wrongdoing by the President of the
Mr. President, I ask unanimous consent that the text of the resolution be printed in the Record following my remarks. I yield the floor.
CENSURING THE PRESIDENT
Feingold Says Congress Must Condemn the President’s Violation of the Public’s Trust Through Illegal Wiretapping Program
“The President must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality,” Feingold said. “The President’s actions, as well as his misleading statements to both Congress and the public about the program, demand a serious response. If Congress does not censure the President, we will be tacitly condoning his actions, and undermining both the separation of powers and the rule of law.”
President’s illegal wiretapping program is in direct violation of the Foreign
Intelligence Surveillance Act (FISA). The FISA law makes it a crime to wiretap
Americans in the
“This issue is not about whether the government should be wiretapping terrorists – of course it should, and it can under current law” Feingold said. “But this President and this Administration decided to break the law and they have yet to give a convincing explanation of why their actions were necessary, appropriate, or legal. Passing more laws will not change the fact that the President broke the ones already in place and for that, Congress must hold him accountable.”
View the Censure Resolution
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FACT SHEET FROM U.S. SENATOR RUSS FEINGOLD
ON HIS RESOLUTION TO CENSURE THE PRESIDENT
Senator Feingold’s resolution of censure condemns the President for breaking the law by authorizing an illegal wiretapping program, and for misleading Congress and the American people about the existence and legality of that program.
The President Broke the Law by Wiretapping Outside of FISA
It Is Illegal to Wiretap Without the Requisite Warrant or Court Order: The law is clear that the criminal wiretap statute and Foreign Intelligence Surveillance Act (FISA) “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.”
FISA Has an Emergency Exception: The Administration has indicated that it ignored FISA because the application process takes too long. In fact, in an emergency where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits him to immediately authorize the surveillance as long as the government goes to the court within 72 hours. Prior to 2001, the emergency wiretap period was only 24 hours. The Administration requested and received the increase to 72 hours in intelligence authorization legislation that passed in late 2001.
Provides for Wartime Situations: FISA also permits the Attorney General
to authorize warrantless electronic surveillance in
The Administration Has Used FISA Thousands of Times Since 9/11: Administration officials have criticized FISA, but they have obtained thousands of warrants approved by the FISA court since 9/11, and have almost never had a warrant request rejected by that court.
The President Made Misleading Arguments Defending his Wiretapping Program
Force Resolution Did Not Authorize Wiretapping: The President
has argued that Congress gave him authority to wiretap Americans on
Congress passed the Patriot Act just six weeks after September 11 to expand the
government’s powers to conduct surveillance of suspected terrorists and spies.
Yet the Administration did not ask for, nor did the Patriot Act include, any
change to FISA’s requirement of judicial approval for
wiretaps of Americans in the
Prohibition on Wiretapping Limits Executive Power: The President’s assertion of inherent executive power is also wrong. The President has extensive authority when it comes to national security and foreign affairs, but given the clear prohibition in FISA, that authority does not include the power to wiretap American citizens on American soil without a warrant.
Branch Review of Wiretapping Is Not Enough: The President
has argued that periodic executive branch review provides an adequate check on
the program. But Congress when it passed FISA explicitly rejected the idea that
the executive branch should be fully entrusted to conduct national security
wiretaps on its own – a power that the executive had abused in the past. In
addition, the Administration has said that NSA employees decide whose
communications to tap. Executive branch employees are no substitute for
Congress Did Not Approve This Program: The extremely limited briefings of the President’s warrantless surveillance programs to a handful of Congressional leaders did not constitute Congressional oversight, much less approval. In fact, the failure of the President to keep the Congressional Intelligence Committees “fully and currently informed of all intelligence activities” was a violation of the National Security Act.
The President Made Misleading Public Statements about Administration Wiretapping
“Finally, we need to renew the critical provisions of the Patriot Act that protect our civil liberties. The Patriot Act was written with clear safeguards to ensure the law is applied fairly. The judicial branch has a strong oversight role. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the
“A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order. Now, we've used things like roving wiretaps on drug dealers before. Roving wiretaps mean you change your cell phone. And yet, we weren't able to use roving wiretaps on terrorists. And so what the Patriot Act said is let's give our law enforcement the tools necessary, without abridging the Constitution of the
there are such things as roving wiretaps. Now, by the way, any time you hear