Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee,
Hearing On "FISA For The 21st Century"
July 26, 2006
I thank the Chairman for convening
this hearing. We are especially glad to welcome General Hayden
to his first appearance before this Committee since he assumed
his new duties. The CIA has been in desperate need of the
professionalism that he brings to this difficult job.
Independence and competence were the two watchwords that
led me to believe that he would serve well as Director of the
CIA, and we need straight talk today in navigating the issues
that we will be discussing at this hearing.
There are two sets of issues
relating to the Foreign Intelligence Surveillance Act that are
now before this Committee. First, what is the extent of the
Administration’s warrantless wiretapping in violation of FISA,
and how should we in Congress react? After seven months and
four hearings, we remain largely in the dark about what the
Administration has been doing and continues to do, because the
Administration has stonewalled this Committee’s bipartisan
efforts at oversight. But the answer is clear: we must demand
and ensure that this Administration, and future Administrations,
follow the law.
Second, does the FISA law itself
need to be revised? Although it has been amended six times at
this Administration’s request in the five years since 9/11, the
Administration is now telling us that it needs “modernization.”
The call for “modernization” is the focus of today’s hearing. I
appreciate Chairman Specter’s agreement to the request that I
and my fellow Democratic members of the Committee made to hold
this hearing on the so-called modernization provisions contained
in Section 9 of the Chairman’s bill. Those proposals make
substantial changes that require careful review.
It is important to emphasize at
the outset that the issues of compliance and modernization are
entirely separate. Whether or not FISA is in need of
fine-tuning is a legitimate consideration, but FISA’s possible
imperfections provide no excuse for the Administration’s
flouting of existing law. By the same token, the Bush-Cheney
Administration’s outrageous disregard for existing law does not
mean that we in Congress should shirk our responsibility to
improve the law if there is room for improvement.
SECTION 9
“MODERNIZATION” PROVISIONS
So I am ready to consider Section
9 of the Chairman’s bill on its merits. But I see serious
grounds for skepticism, and I have some serious questions about
those provisions, to which I think we need some candid answers.
First, if Section 9’s provisions
are, as claimed, needed to bring FISA up-to-date with 21st
Century technology, why haven’t we heard about them until now?
Not only have we amended FISA six times in the past five years.
In July 2002, former Attorney General Ashcroft testified that
the 2001 PATRIOT Act had “modernized our surveillance tools to
keep pace with technological changes.” In March of this year,
in the Reauthorization of the PATRIOT Act, Congress made all the
amendments to FISA that the Administration requested, and the
President took credit for updating the law further.
If FISA as amended is too “quaint”
to meet the challenges of the 21st Century, the
Bush-Cheney Administration owes the Congress and the American
people an explanation for its failure to speak up before now.
This Administration is not shy about seeking expansions of
Executive power, so I am naturally skeptical of a supposed need
for modernization that it has been so slow to discover.
Second, FISA is a very complex and
finely calibrated statute. In order to evaluate the merits of
technical-sounding proposed changes and definitional provisions,
we need to understand their purpose and likely practical effect
– not just take the Administration’s word that they make sense.
We need to know what obstacles to the government's ability to
protect the nation’s security the proposed amendments would
remove, and what dangers to Americans’ liberties and privacy
they would present.
To the extent that I have been
able to figure out the highly complex language of Section 9 of
the Chairman’s bill, it seems to me to permit vast new amounts
of warrantless surveillance of telephone calls involving
American citizens. It would appear to authorize unrestricted,
unregulated government surveillance of American citizens talking
to relatives, colleagues and trading partners overseas, without
any showing that that surveillance is likely to protect our
national security. It would also allow limitless delegation of
the Attorney General’s authority, down to the lowest-level
government employee. But to the extent that the Administration’s
witnesses can explain to us today, in practical and concrete
terms, why they make sense, I will listen.
OTHER
PROVISIONS
I will have some hard questions
about Section 9. But let me turn for a minute to the rest of
the Chairman’s bill. It has been called a compromise. This
Vermonter does not believe that we should ever compromise on
requiring the Executive to submit to the rule of law. I am sad
to say that I see this bill as less of a compromise and more a
concession. It would abandon our oversight role and confine
oversight to a single judge on a secret court, whose decision on
the one program the Bush-Cheney Administration has agreed to
submit for review is appealable only by the Government. And
even that oversight would not be required by the bill itself. I
expect that Senator Specter got the best deal that he thought he
could. The President, Vice President and their legions can be
hard-headed rather than flexible bargainers to be sure. I make
these observations respectfully, not to criticize Senator
Specter, who has reached his own judgment about how he is wiling
to proceed, but to express my reluctance to compromise FISA and
the minimal protections it provides for Americans.
Section 8 would repeal FISA's
“exclusivity” provision and affirmatively embrace the
President’s claim of sweeping inherent authority. The result is
to make FISA optional. The President may use it or not, at his
discretion.
It is astounding to me that we are
considering this proposal. FISA was never intended to give
Presidents choices; it was enacted to prevent abuses of
Executive power and protect Americans’ liberties by prohibiting
the Government from spying on its citizens without court
approval. The Bush-Cheney Administration has chosen to simply
ignore it. Are we now going to reward its flouting of the rule
of law by saying, in effect, “Oh, please excuse us for passing
that law, we didn’t mean it and we won’t do it again.”
Defenders of the bill have argued
that Section 8 is meaningless because the President has whatever
constitutional authority the Constitution says, and Congress
cannot limit that authority through legislation. If the best
thing we can say on behalf of proposed legislation is that it is
a waste of ink, we should not be enacting it. But I do not for
one minute believe that, when it goes before the secret FISA
court, the Administration will adhere to the position that
Section 8 is meaningless. The Administration is insisting on it
for a reason.
As the Supreme Court recently
explained in its Hamdan
decision, the constitutional scope of presidential power depends
on the legislation that Congress has enacted, even in times of
war. The Constitution grants Congress the express power to set
rules for the military, and the express power “To make all laws
which shall be necessary and proper for carrying into execution”
all the powers vested by the Constitution in the federal
government, including those of the President.
In the absence of congressional
action, the President may well have some measure of unilateral
authority to gather intelligence, including through electronic
surveillance. That is what the precedents the Administration
always cites suggest. But once Congress has acted, as it did in
FISA, the President is no longer free to do whatever he wants.
As the Court explained in
Hamdan, “Whether or not the President has independent
power, absent congressional authorization,” Congress may, “in
proper exercise of its own . . . powers,” place limitations on
the President’s powers.
That was the whole point of FISA:
to limit the President’s power to spy on ordinary Americans by
making FISA the sole means by which foreign intelligence
wiretaps may be conducted in the United States.
Waiving FISA’s exclusivity provision would not be meaningless;
it would completely gut FISA and give the President a blank
check to carry out warrantless wiretapping whenever he chooses.
I could not in good conscience acquiesce in such a sweeping
signing away of Americans’ liberties in any circumstances. I
certainly shall not do so at the behest of an Administration
that has repeatedly broken the law.
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