"Our Job Is Not to Stand Up and Cheer When the President Breaks the Law"
Feingold, Senator Russ
"Our Job Is Not to Stand Up and Cheer When the President Breaks the Law" Illustration by Christophe Vorlet Statement of U.S. Senator Russ Feingold on the President's Warrantless Wiretapping...
...The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any preexisting inherent authority of the President...
...The President can't just bypass two branches of government, and obey only those laws he wants to obey...
...The President of the United States is trying to mislead the American people...
...Anyone in this body who would tell you otherwise either wasn't here at the time or isn't telling the truth...
...And then to see him publicly embrace his actions-and to see so many Members of Congress cheer him on-is appalling...
...As the President said, we must always be clear in our principles...
...Our job is not to stand up and cheer when the President breaks the law...
...When we're talking about chasing down terrorists, we're talking about getting a court order before we do so...
...It is not something to celebrate in one breath, and ignore the next...
...But, almost in the same breath, the President openly acknowledged that he has ordered the government to spy on Americans, on American soil, without the warrants required by law...
...But here the President is acting in direct violation of a criminal statute...
...The President issued a call to spread freedom throughout the world, and then he admitted that he has deprived Americans of one of their most basic freedoms under the Fourth Amendment-to be free from unjustified government intrusion...
...And all of them are completely threadbare...
...The President has also said that his inherent executive power gives him the power to approve this program...
...In fact, it would be irresponsible not to wiretap terrorists...
...The President's pre-1776 mentality is hurting America...
...Nothing has changed, by the way...
...The President was blunt, so I will be blunt: This program is breaking the law, and this President is breaking the law...
...We cannot be a beacon of freedom for the world unless we protect our own freedoms here at home...
...The President was right about one thing...
...The President's decision that he can break the law says far more about his attitude toward the rule of law than it does about the laws themselves...
...It is fracturing the foundation on which our country has stood for 230 years...
...Every single one of us is committed to stopping the terrorists who threaten us and our families...
...Defeating the terrorists should be our top national priority, and we all agree that we need to wiretap them to do it...
...I yield the floor...
...The President is not a king...
...But we do...
...In addition, in the intelligence authorization bill passed in December 2001, we extended the emergency authority in FISA, at the Administration's request, from twenty-four to seventy-two hours...
...Contrary to what the President told the country in the State of the Union, no court has ever approved warrantless surveillance in violation of FISA...
...How is that worthy of applause...
...Deciding unilaterally which of our freedoms still apply in the fight against terrorism is unacceptable and needs to be stopped immediately...
...The Patriot Act made it easier for law enforcement to conduct surveillance on suspected terrorists and spies, while maintaining FISA's baseline requirement of judicial approval for wiretaps of Americans in the U.S...
...In his address, he said, "We love our freedom, and we will fight to keep it...
...In the State of the Union, he also said that "we must always be clear in our principles" to get support from friends and allies that we need to fight terrorism...
...Again and again, he invoked the principle of freedom, and how it can transform nations, and empower people around the world...
...The President was blunt...
...The President knows that the Foreign Intelligence Surveillance Act makesitacrimetowiretap Americans inthe United States without a warrantoracourt order...
...Freedom is at the heart of who we are as a nation, and as a people...
...Since when do we celebrate our commander in chief for violating our most basic freedoms, and misleading the American people in the process...
...Congress has lost its way if we don't hold this President accountable for his actions...
...In fact, the President has a pre-1776 view of the world...
...His words got rousing applause from Republicans, and even some Democrats...
...We authorized the President to use military force in Afghanistan, a necessary and justified response to September 11...
...That makes no sense at all...
...Members of Congress did not think this resolution gave the President blanket authority to order these warrantless wiretaps...
...We need answers...
...Officers must meet strict standards to use any of these tools...
...And I think that's because they can't explain it...
...We did not authorize him to wiretap American citizens on American soil without going through the process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of terrorists-with the approval of a judge...
...President, last week the President of the United States gave his State of the Union address, where he spoke of America's leadership in the world, and called on all of us to "lead this world toward freedom...
...Now that the public knows about the domestic spying program, he has had to change course...
...In that moment at the State of the Union, I felt ashamed...
...When did we start to stand up and cheer for breaking the law...
...As the 1978 Senate Judiciary Committee report stated, FISA "recognizes no inherent power of the President in this area...
...The President of the United States has broken the law...
...The President's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless...
...That means his power is, as Justice Jackson said in the steel seizure cases half a century ago, "at its lowest ebb...
...soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001...
...Freedom is an enduring principle...
...He said that he had authorized the National Security Agency's domestic spying program, and he made a number of misleading arguments to defend himself...
...In a nation built on freedom, the President is not a king, and no one is above the law...
...Our Founders lived in dangerous times, and they risked everything for freedom...
...To find out that the President of the United States has violated the basic rights of the American people is chilling...
...Patrick Henry said, "Give me liberty or give me death...
...Because no one, not the President, not the Attorney General, and not any of their defenders in this body has been able to explain why it is necessary to break the law to defend against terrorism...
...And we will fight to protect the rights of law-abiding Americans against intrusive government power...
...President, that is ridiculous...
...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...
...And these standards are fully consistent with the Constitution of the U.S...
...And "Congress has declared that this statute, not any claimed Presidential power, controls...
...Senator Russ Feingold on the President's Warrantless Wiretapping Delivered on the Senate floor, February 7, 2006 Mr...
...It is ridiculous to think that Congress would have negotiated and enacted all the changes to FISA in the Patriot Act if it thought it had just authorized the President to ignore FISA in the AUMF...
...He has looked around for arguments to cloak his actions...
...A recent letter from a group of law professors and former executive branch officials points out that "every time the Supreme Court has confronted a statute limiting the commander in chief's authority, it has upheld the statute...
...That is why both Republicans and Democrats have questioned this theory...
...The President has argued that Congress gave him authority to wiretap Americans on U.S...
...And he needs to be held accountable...
...What the President has done here is to break faith with the American people...
...Why do that if the President has the power to ignore FISA...
...Yes, Mr...
...That is understandable, since wiretapping Americans on American soil without a warrant is against the law...
...We do love our freedom, and we will fight to keep it...
...But we have yet to see any reason why we have to trample the laws of the United States to do it...
...We will fight to defeat the terrorists who threaten the safety and security of our families and loved ones...
...That is one of the reasons that the framers put us here-to ensure balance between the branches of government, not to act as a professional cheering section...
...This goes way beyond party, and way beyond politics...
...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...
...Why else would he have assured the public, over and over again, thathe was getting warrants before engagingindomestic surveillance...
...The President was understandably eager in these speeches to make it clear that under his Administration, law enforcement was using the FISA court to obtain warrants before wiretapping...
...Instead, this Administration reacts to anyone who questions this illegal program by saying that those of us who demand the truth and stand up for our rights and freedoms have a pre-9/11 view of the world...
...This particular claim is further undermined by Congressional approval of the Patriot Act just a few weeks after we passed the Authorization for the Use of Military Force...
...We all know that...
...And the Congress is not a king's court...
...And again, on July 14, 2004: "The government can't move on wiretaps or roving wiretaps without getting a court order...
...So let us be clear: We cherish the great and noble principle of freedom, we will fight to keep it, and we will hold this President-and anyone who violates those freedoms-accountable for their actions...
...Not only that, he is misleading the American people in his efforts to justify this program...
...So let's be clear about a basic American principle: When someone breaks the law, when someone misleads the public in an attempt to justify his actions, he needs to be held accountable...
...The President suggests that anyone who criticizes his illegal wiretapping program doesn't understand the threat we face...
Vol. 70 • April 2006 • No. 4
