The Senate Judiciary Committee held a hearing Friday on a resolution to censure President Bush for his domestic warrantless wiretapping program1. The censure would be only a slap on the wrist, but would serve notice that the Senate is watching and disapproves. Sen. Russ Feingold (D-WI), the lone senator to vote against the original Patriot Act, introduced the resolution, which states that the Senate condemns the president for three aspects of the National Security Agency (NSA) wiretapping of persons in the U.S. that he ordered2. Firstly, Bush failed to get search warrants. The Foreign Intelligence Surveillance Act (FISA) requires a search warrant from the FISA Court for any foreign surveillance in the U.S. Secondly, Bush did not inform the full congressional intelligence committees as required by the National Security Act of 1947. Bush informed, to some extent, only the leaders of those committees3. Thirdly, Bush tried to mislead the American public that the program was needed to watch terrorists, and that other presidents had done the same with court backing. In fact, Bush already had the ability to watch terrorists legally through the FISA Court, and no other president is known to have bypassed that court nor has any federal court ruled on such executive behavior. Speaking for the resolution at the hearings, Bruce Fein, Deputy Attorney General to President Reagan, said of Bush’s behavior, “Secrecy of that sort makes checks and balances a farce. … Popular government without popular information is impossible4.” Feingold said, “If we in the Congress don’t stand up for ourselves and for the American people, we become complicit in the lawbreaking5.”
The Fourth Amendment to the U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
At issue was a resolution sponsored by Sen. Russell Feingold, D-Wis., to censure the president for authorizing warrantless eavesdropping on U.S. citizens as part of the administration’s anti-terrorism campaign.
“We know the president broke the law,” Leahy said. “Now we need to know why.”
Graham and Specter disagreed with Bush’s claim of having the legal authority to wiretap U.S. citizens but rejecting that the president deserves an official reprimand.
Specter noted Feingold’s censure resolution did not accuse Bush of “bad faith,” prompting Feingold to respond:
“If you want the words ‘bad faith’ in there, let’s put them right in, because that’s exactly what we have here.”
Sens. John Cornyn, R-Texas, and Jeff Sessions, R-Ala., dismissed the hearings as “surreal” and “beyond the pale.”
Conservative legal scholar Bruce Fein, an active supporter of Bush’s judicial nominees, condemned the president’s wiretapping program and said Bush’s justifications undermine the government.
“You can lose a republic on the installment plan every bit as efficiently as, at one fell swoop, with a coup d‘Ã©tat,” he said.
Resolved, That the United States Senate does hereby censure George W. Bush, President of the United States, and does condemn his unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required by the Foreign Intelligence Surveillance Act of 1978, his failure to inform the full congressional intelligence committees as required by law, and his efforts to mislead the American people about the authorities relied upon by his Administration to conduct wiretaps and about the legality of the program.
On January 4, 2006, Harman wrote to the President that “In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act.” (Washington Post) Notification of Congress is not directly relevant to the legality of the wiretaps, but is important politically and for separation of powers. Suzanne Spaulding, who worked with the House and Senate Intelligence Committees as general counsel argues that the method of congressional notification Bush used “eliminates the possibility of any careful oversight” because only 8 legislators were notified, and it would have been illegal for them to discuss what they were told, even to other legislators or to their staff in order to determine the program’s legality.
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