FacebookTwitterGoogle+RedditEmail

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.”

 

 

Sen. Russ Feingold, D-Wis., is a member of the Senate Foreign Relations and Intelligence Committees.

More articles by:
Weekend Edition
July 22, 2016
Friday - Sunday
Jeffrey St. Clair
Good as Goldman: Hillary and Wall Street
Joseph E. Lowndes
From Silent Majority to White-Hot Rage: Observations from Cleveland
Paul Street
Political Correctness: Handle with Care
Richard Moser
Actions Express Priorities: 40 Years of Failed Lesser Evil Voting
Eric Draitser
Hillary and Tim Kaine: a Match Made on Wall Street
Conn Hallinan
The Big Boom: Nukes And NATO
Ron Jacobs
Exacerbate the Split in the Ruling Class
Jill Stein
After US Airstrikes Kill 73 in Syria, It’s Time to End Military Assaults that Breed Terrorism
Jack Rasmus
Trump, Trade and Working Class Discontent
John Feffer
Could a Military Coup Happen Here?
Jeffrey St. Clair
Late Night, Wine-Soaked Thoughts on Trump’s Jeremiad
Andrew Levine
Vice Presidents: What Are They Good For?
Michael Lukas
Law, Order, and the Disciplining of Black Bodies at the Republican National Convention
David Swanson
Top 10 Reasons Why It’s Just Fine for U.S. to Blow Up Children
Victor Grossman
Horror News, This Time From Munich
Margaret Kimberley
Gavin Long’s Last Words
Mark Weisbrot
Confidence and the Degradation of Brazil
Brian Cloughley
Boris Johnson: Britain’s Lying Buffoon
Lawrence Reichard
A Global Crossroad
Kevin Schwartz
Beyond 28 Pages: Saudi Arabia and the West
Charles Pierson
The Courage of Kalyn Chapman James
Michael Brenner
Terrorism Redux
Bruce Lerro
Being Inconvenienced While Minding My Own Business: Liberals and the Social Contract Theory of Violence
Mark Dunbar
The Politics of Jeremy Corbyn
Binoy Kampmark
Laura Ingraham and Trumpism
Uri Avnery
The Great Rift
Nicholas Buccola
What’s the Matter with What Ted Said?
Aidan O'Brien
Thank Allah for Western Democracy, Despondency and Defeat
Joseph Natoli
The Politics of Crazy and Stupid
Sher Ali Khan
Empirocracy
Nauman Sadiq
A House Divided: Turkey’s Failed Coup Plot
Franklin Lamb
A Roadmap for Lebanon to Grant Civil Rights for Palestinian Refugees in Lebanon
Colin Todhunter
Power and the Bomb: Conducting International Relations with the Threat of Mass Murder
Michael Barker
UK Labour’s Rightwing Select Corporate Lobbyist to Oppose Jeremy Corbyn
Graham Peebles
Brexit, Trump and Lots of Anger
Anhvinh Doanvo
Civilian Deaths, Iraq, Syria, ISIS and Drones
Christopher Brauchli
Kansas and the Phantom Voters
Peter Lee
Gavin Long’s Manifesto and the Politics of “Terrorism”
Missy Comley Beattie
An Alarmingly Ignorant Fuck
Robert Koehler
Volatile America
Adam Vogal
Why Black Lives Matter To Me
Raouf Halaby
It Is Not Plagiarism, Y’all
Rev. Jeff Hood
Deliver Us From Babel
Frances Madeson
Juvenile Life Without Parole, Captured in ‘Natural Life’
Charles R. Larson
Review: Han Kang’s “The Vegetarian”
FacebookTwitterGoogle+RedditEmail