The Problems with the FISA Bill

A number of Senators came to the floor prior to the Fourth of July recess to debate the FISA legislation, and more debate has occurred this week. We have heard arguments for and against the legislation, and Senators have cited a variety of reasons for their positions.

Several have defended the bill by arguing that the legislation includes improvements compared to the Senate bill we passed earlier this year. I was not surprised to hear that line of argument. I agree that there are some improvements to the Senate bill contained in the legislation that we are now considering. But those changes are not nearly enough to justify supporting the bill, as I will explain in a few moments.

I was surprised to hear, however, several Senators still defending the legality of the President’s warrantless wiretapping program, and still arguing that Congress had somehow signed off on this program years ago because the Gang of Eight was notified. Mr. President, I thought we were well past these arguments. Two and a half years after this illegal program became public, I cannot believe that we are still debating the legality of this program on the Senate floor, and that anyone seriously believes that merely notifying the Gang of Eight – while keeping the full intelligence committees in the dark — somehow represents congressional approval.

Mr. President, it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public. So if we are going to go back and discuss these issues that I thought had long since been put to rest, let’s cover the full history.

Here is the part of the story that some seem to have forgotten. In January 2005, eleven months before the New York Times broke the story of the illegal wiretapping program, I asked then-White House Counsel Alberto Gonzales at his confirmation hearing to be Attorney General whether the President had the power to authorize warrantless wiretaps in violation of the criminal law. Neither I nor the vast majority of my colleagues knew it then, but the President had authorized the NSA program three years before, and Mr. Gonzales was directly involved in that issue as White House Counsel. At his confirmation hearing, he first tried to dismiss my question as “hypothetical.” He then testified that “it’s not the policy or the agenda of this President to authorize actions that would be in contravention of our criminal statutes.”

Well, Mr. President, the President’s wiretapping program was in direct contravention of our criminal statutes. Mr. Gonzales knew that, but he wanted the Senate and the American people to think that the President had not acted on the extreme legal theory that the President has the power as Commander in Chief to disobey the criminal laws of this country.

The President, too, misled Congress and the American public. In 2004 and 2005, when Congress was considering the reauthorization of the USA Patriot Act, the President went out of his way to assure us that his administration was getting court orders for wiretaps, all the while knowing full well that his warrantless wiretapping program was ongoing.

Here’s what the President said on April 20, 2004: “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.”

And again, on July 14, 2004: “The government can’t move on wiretaps or roving wiretaps without getting a court order.”

And listen to what the President said on June 9, 2005: “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 U.S.”

So please, let’s not pretend that the highly classified notification to the Gang of Eight, delivered while the President himself was repeatedly presenting a completely different picture to the public, suggests that Congress somehow acquiesced to this program. As the members of this body well know, several members of the Gang of Eight at the time raised concerns when they were told about this, and several have since said they were not told the full story. And of course all of them were instructed not to share what they had learned with a single other person.

Mr. President, I also cannot leave unanswered the arguments mounted in defense of the legality of the NSA program.

I will not spend much time on the argument that the Authorization for Use of Military Force that Congress passed on September 18, 2001, authorized this program. That argument has been thoroughly discredited. In the AUMF, Congress authorized the President to use military force against those who attacked us on 9/11, a necessary and justified response to the attacks. We did not authorize him to wiretap American citizens on American soil without going through the judicial process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of spies and terrorists.

Senators have also dragged out the same old tired arguments about the President’s supposed inherent executive authority to violate FISA. They argue that a law passed by Congress can’t trump the President’s power under the Constitution. That argument may sound good, but it assumes what it is trying to prove – that the Constitution gives the President the power to authorize warrantless wiretaps in certain cases. You can’t simply say that any claim of executive power prevails over a statute – at least, not if you are serious about the rule of law, and about how to interpret the Constitution. The real question is, when a claim of executive power and a statute arguably conflict, how do you resolve that conflict?

Fortunately, the Supreme Court has told us how to answer that question. We are talking here about the President acting in direct violation of a criminal statute. That means his power was, as Justice Jackson said in his famous and influential concurrence in the Steel Seizure cases half a century ago, “at its lowest ebb.” In other words, when a President argues that he has the power to violate a specific law, he is on shaky ground. That’s not just my opinion – it’s what the Supreme Court has made clear. No less an authority than the current Chief Justice of the United States, John Roberts, repeatedly recognized in his confirmation hearings that Justice Jackson’s three-part test is the appropriate framework for analyzing questions of executive power. In early 2006, a distinguished group of law professors and former executive branch officials wrote a letter pointing 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. The 1978 Senate Judiciary Committee report stated that FISA “recognizes no inherent power of the president in this area.” And “Congress has declared that this statute, not any claimed presidential power, controls.”

And contrary to what has been said on this floor, no court has ever approved warrantless surveillance in violation of FISA based on some theory of Article II authority. The Truong case that so often gets hauled out to make this argument was a Vietnam-era case based on surveillance that occurred before FISA was enacted, so it could not have decided this issue. And the issue before the FISA Court of Review in 2002 had nothing to do with inherent presidential authorities. Yet these cases are repeatedly cited by supporters of the President, complete with large charts of the supposedly relevant quotations. The fact is that not a single court – not the Supreme Court or any other court – has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps.

In fact, Mr. President, as the Senator from Pennsylvania and I discussed on the floor yesterday, just last week a federal district court strongly indicated that were it to reach that issue, it would find that the President must in fact follow FISA. The court was considering whether the state secrets privilege applies to claims brought under the FISA civil liability provisions, and found that it does not. Its reasoning was based on the conclusion that Congress had spoken clearly that it intended FISA and the criminal wiretap laws to be the exclusive means by which electronic surveillance is conducted, and had fully occupied the field in this area, replacing any otherwise applicable common law. Here is what the court said: “Congress appears clearly to have intended to – and did – establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities…”

And a district court in Michigan also has held that the President’s wiretapping program was unconstitutional, although that decision was reversed on procedural grounds by the Sixth Circuit. So to the extent there is any case law that actually addresses this issue, it undercuts the administration’s arguments. It certainly does not support those arguments.

Mr. President, we also have heard that past American presidents have cited executive authority to order warrantless surveillance. But of course those past presidents – Presidents Wilson and Roosevelt are often cited – 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 can no longer unilaterally decide which Americans to wiretap. So those examples are simply not relevant.

In sum, the arguments that the President has inherent executive authority to violate the law are baseless. It’s not even a close case. And the repeated efforts here in the Senate to pretend otherwise are very discouraging.

Mr. President, it may seem that I am going over ancient history because this program is no longer operating outside the law. But this is directly relevant to the current debate. The bill the Senate is considering would grant retroactive immunity to any companies that cooperated with a blatantly illegal program that went on for more than five years – and that the administration repeatedly misled Congress about.

If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking. That’s why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits.

These lawsuits may be the last chance to obtain a judicial ruling on the lawfulness of the warrantless wiretapping program. It’s bad enough that Congress abdicated its responsibility to hold the President accountable for breaking the law. Now it is trying to absolve those who allegedly participated in his lawlessness. Mr. President, this body should be condemning this administration for its law-breaking – not letting the companies that allegedly cooperated off the hook.

And this body certainly should not grant the government new, over-expansive surveillance authorities, which brings me to the part of the bill that in some ways concerns me even more than the immunity provision. Let me explain why I am so concerned about the new surveillance powers granted in this bill, and why the modest improvements made to this part of the bill don’t go nearly far enough.

First, the FISA Amendments Act would authorize the government to collect all communications between the U.S. and the rest of the world. That could mean millions upon millions of communications between innocent Americans and their friends, families, or business associates overseas could legally be collected. Parents calling their kids studying abroad, emails to friends serving in Iraq – all of these communications could be collected, with absolutely no suspicion of any wrongdoing, under this legislation.

Second, like the earlier Senate version, this bill fails to effectively prohibit the practice of reverse targeting – namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating. The bill does have a provision that purports to address this issue. It prohibits intentionally targeting a person outside the U.S. without an individualized court order if, quote, “the purpose” is to target someone reasonably believed to be in the U.S. At best, this prevents the government from targeting a person overseas as a complete pretext for getting information on someone in the U.S. But this language would permit intentional and possibly unconstitutional warrantless surveillance of an American so long as the government has any interest, no matter how small, in the person overseas with whom the American is communicating. The bill does not include language that had the support of the House and the vast majority of the Senate’s Democratic caucus, to require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S. The administration’s refusal to accept that reasonable restriction on its power is telling.

Third, the bill before us imposes no meaningful consequences if the government initiates surveillance using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful. Say, for example, the FISA Court determines that the procedures were not even reasonably designed to wiretap foreigners outside the U.S., rather than Americans here at home. Under the bill, all that illegally obtained information on Americans can be retained and used. Once again, there are no consequences for illegal behavior.

Now, unlike the Senate bill, this new bill does generally provide for FISA Court review of surveillance procedures before surveillance begins, and that is one of the changes that has been touted by supporters of the bill. But the bill also says that if the Attorney General and Director of National Intelligence certify that they don’t have time to get a court order and that intelligence important to national security may be lost or not timely acquired, then they can go forward without judicial approval. This is a far cry from allowing an exception to FISA Court review in a true emergency, because arguably all intelligence is important to national security and any delay at all might cause some intelligence to be lost. So I am concerned that this ‘exigency’ exception could very well swallow the rule and undermine any presumption of prior judicial approval.

Fourth, this bill doesn’t protect the privacy of Americans whose communications will be collected in vast new quantities. The Administration’s mantra has been: “don’t worry, we have minimization procedures.” But, Mr. President, minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes “foreign intelligence.” That is why on the Senate floor, I joined with Senator Webb and Senator Tester earlier this year to offer an amendment to provide real protections for the privacy of Americans, while also giving the government the flexibility it needs to wiretap terrorists overseas. This bill relies solely on inadequate minimization procedures to protect innocent Americans. They are simply not enough.

Mr. President, as I said at the outset, some supporters of the bill have pointed to improvements made since the Senate passed its bill earlier this year. I appreciate that changes have been made. But those changes are either inadequate, or they do not go to the core privacy issues raised by this bill. In fact, as the Vice Chairman of the Senate Intelligence Committee said just yesterday, the bill before us is “basically the Senate bill all over again” with only “cosmetic fixes.”

For example, I am pleased that the bill provides for FISA Court review of targeting and minimization procedures. But as I mentioned, there is a potentially gaping loophole allowing the executive branch to go forward with surveillance without court review – an exception that could swallow the rule. The bill also now explicitly directs the FISA Court to consider whether the government’s procedures comply with the Fourth Amendment – but that is an authority it should have had anyway.

The bill includes an Inspector General review of the illegal program, which is a positive change, but it does not make up for the lawsuits that are going to be dismissed as a result of this legislation. And I strongly support the strengthened exclusivity language, which may deter a future administration from engaging in lawless behavior. But let’s not lose sight of the fact that FISA as originally enacted clearly stated that it and the criminal wiretap laws were the exclusive means for conducting electronic surveillance. This was confirmed in the strongest terms possible by a federal district court just last week. Only under the unprecedented legal theories of this administration could that clear language be ignored, requiring Congress to pass language that effectively says – No, we really meant it. And, if this bill is enacted, I am by no means reassured that this Administration, which repeatedly broke the law and misled the public over the past seven years, will now respect the exclusivity of FISA.

Now, the bill does contain a key protection for Americans traveling overseas. It says that if the government wants to intentionally target Americans while they are outside the country, it has to get an individualized FISA court order based on probable cause. That is a great victory, and one we should be proud of. But it does not override the greatly expanded authorities in this bill to collect other types of communications involving Americans.

In sum, these improvements are not enough. They are nowhere close. And so, Mr. President, I must strongly oppose this bill.

When you consider how we got here, this legislation is particularly discouraging. We discovered in late 2005 that the President had authorized an illegal program in blatant violation of a statute, and that Congress and the public had been misled in a variety of ways leading up to this public revelation. Congress, to its credit, held hearings on the program, but was largely stonewalled by the administration for many months until the administration grudgingly agreed to brief the intelligence committees, and more recently the judiciary committees. Nonetheless, the vast majority of the House and Senate have never been told what happened. In 2006, when the Republicans tried to push through legislation to grant massive new surveillance authorities to the executive branch, we stopped it. But now, in a Democratic-controlled Congress, not only did we pass the Protect America Act, but we are now about to extend for more than four years these expansive surveillance powers – and we are about to grant immunity to companies that are alleged to have participated in the administration’s lawlessness.

Mr. President, I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.

So I hope my colleagues will think long and hard about their votes on this bill, and consider how they, and their constituents, will feel about this vote five, ten or twenty years from now. I am confident that history will not judge this Senate kindly if it endorses this tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. I urge my colleagues to stand up for the rule of law and defeat this bill.

Russ Feingold represents Wisconsin in the US senate.







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