Fact
Sheet From U.S. Senator Russ Feingold
On His Resolution to Censure the President March 12,
2006
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.
FISA Provides for
Wartime Situations: FISA also
permits the Attorney General to authorize warrantless electronic
surveillance in the United States during the 15 days following
a declaration of war, to allow time to consider any amendments
to FISA necessitated by a wartime emergency.
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
Military Force
Resolution Did Not Authorize Wiretapping: The
President has argued that Congress gave him authority to wiretap
Americans on U.S. soil without a warrant when it passed the
Authorization for Use of Military Force 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.
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.
Executive 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 FISA Court judges.
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 U.S.”
--President George Bush, June 9, 2005, in Columbus, Ohio
“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 United States, the tools necessary to defend America.”
--President George Bush, July 14, 2004, in Fond du Lac, Wisconsin
“Secondly, there are such things
as roving wiretaps. 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.
It's important for our fellow citizens to understand, when
you think Patriot Act, constitutional guarantees are in place
when it comes to doing what is necessary to protect our homeland,
because we value the Constitution.”
--President George Bush, April 20, 2004, in Buffalo, New York |