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Myth vs. Reality on Bush's Warrantless Wiretapping Program

A Fact Check on a Presidential Crime

by Sen. RUSSELL FEINGOLD


Myth: Congress needs to hold hearings on the NSA wiretapping program before a measure like censure is discussed.

Fact: The Senate Judiciary Committee has held multiple hearings on the issue despite the refusal of the administration to cooperate. Further hearings and investigation are necessary but those hearings will not change the fact that the President broke the law.

Congress has held multiple hearings on the wiretapping program and the administration has not been forthcoming with information about the program. The Senate Judiciary Committee has held three hearings on the issue ­ on February 6th, February 28th, and March 28th, 2006. The administration has provided only one official to testify before the Judiciary Committee, Attorney General Alberto Gonzales on February 6th. Under questioning, the Attorney General could not cite a single example of a President, other than George W. Bush, who has authorized wiretapping on American soil outside of FISA since FISA was enacted. Nor could he cite a single court decision ­ let alone a Supreme Court decision ­ that holds that the President has the authority to bypass FISA and authorize warrantless wiretaps. Congress does need to hold more hearings to better understand the facts of how the program is conducted but it does not need any more hearings to know that the President broke the law.

Myth: The Senate Intelligence Committee is performing oversight of the warrantless wiretapping program, and that is sufficient.

Fact: The Senate Intelligence Committee has abdicated its duty to be a check on the executive by refusing to fully investigate the program.

On March 7th, the Senate Select Committee on Intelligence declined to authorize an investigation into the warrantless wiretapping program despite the fact that the National Security Act of 1947 explicitly requires the President to keep the congressional intelligence committees "fully and currently informed of all intelligence activities." A new subcommittee of the Intelligence Committee is looking at the program, but this is not adequate oversight or consistent with the National Security Act.

Myth: The law is unclear about whether the President’s wiretapping program is legal.

Fact: The law is clear that the criminal wiretap statute and Foreign Intelligence Surveillance Act (FISA) are the only authority for wiretapping individuals inside the United States. The few details that the President has provided about his wiretapping program show clearly that that he ignored these laws.

FISA states specifically that the criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." The President and his administration have conceded that the program is conducted without getting the court orders required by FISA.

Myth: Congress gave the president the authority to wiretap Americans on American soil without a court order when it voted to authorize the use of military force in Afghanistan.

Fact: There is no language in the Authorization for the Use of Military Force (AUMF) suggesting that it authorizes the President to authorize warrantless wiretaps of Americans on American soil.

The President has argued that Congress gave him authority to wiretap Americans on American soil without a warrant when it passed the AUMF after September 11, 2001. There is no language in the resolution, and no evidence, to suggest that it was intended to give the President authority to order these warrantless wiretaps. Warrantless domestic surveillance is not an "incident of war" akin to detaining an enemy soldier on the battlefield as the Administration has argued. In fact, 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 United States. Indeed, Sen. Daschle has stated that the Administration asked for language that would have authorized "appropriate force in the United States" and that he specifically rejected that request.

Myth: The Constitution gives the President authority to wiretap Americans on American soil without a court order even if it violates a statute.

Fact: FISA prohibits this kind of wiretapping program. Ever time the Supreme Court has confronted a statute limiting the Commander in Chief’s authority, it has upheld the statute.

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. In the landmark 1952 Supreme Court case Youngstown v Ohio, then Supreme Court Justice Robert Jackson wrote that presidential authority is at its "lowest ebb" when it is "incompatible with the expressed or implied will of Congress."