Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee
Executive Business Meeting
September 7, 2006
Legislation On Domestic Eavesdropping

Nine months have passed since we first learned that the Bush-Cheney Administration has been secretly eavesdropping on Americans without warrants for years.  Yet most of us are no further along in our understanding of that controversial program. 

We do not know what the Administration’s secret program – or is it programs? -- involves.  We do not know whether the information it has generated has been useful, or whether it has generated a mass of useless information that squanders the scarce and valuable time of the Nation’s intelligence analysts.  We do not know how seriously it has compromised the privacy of law-abiding American citizens, or what if any safeguards against abuse have been employed.  We do not know whether the Administration could obtain warrants for the information it believes it needs under the law as it stands -- if they ever decided to take the trouble to do so.  Nor do we know what other domestic spying activities are being conducted outside of the law and behind the backs of Congress, the courts and the American people. 

We all believe that monitoring the communications of suspected terrorists is vitally important, but especially when the monitoring involves Americans, it needs to be done lawfully and with adequate checks and balances to prevent abuses of Americans’ rights and Americans’ privacy.  The need for safeguards is more than a hypothetical exercise.  Concern about earlier abuses is one of the reasons we have FISA in the first place.  Now we are being asked to make sweeping and fundamental changes in the law for reasons that we do not know and in order to legalize secret, unlawful actions that the Bush-Cheney Administration refuses to fully divulge.  We do not know what we need to know to assess the proposals before us and to legislate responsibly.

That was true in March, when S.2453 was first introduced and placed on the Committee’s markup agenda, and it remains true today.  In the interim, S.2453 has been fundamentally rewritten at least a half a dozen times, so that the bill that emerged after weeks of secret negotiations with the White House is almost unrecognizable as the successor of the bill that was introduced back in March.  What began as a well-intentioned effort to enhance the accountability of the Government to the American people is now a deeply flawed muddle that seems calculated to do precisely the opposite of its original objective. 

Many of the bill’s key departures from current law appear in Section 9, which proposes to fundamentally rewrite the FISA statute.  Section 9 is a one-sided set of changes to FISA that would essentially gut the judicial accountability the statute imposes on the Executive branch.  Of course, it originated with the Bush-Cheney Administration.  Apparently, Section 9 is the quid pro quo for the President’s promise to do something that he should have done five years ago -- that is, submit his domestic spying activities to the FISA court for review.  It is a lot of quid for very little quo.

We have held five hearings on the President’s program, but only one -- the last one, on July 26 -- touched on the new changes proposed in Section 9.  We barely scratched the surface of Section 9 at the July hearing, and we are still waiting for answers to our written follow-up questions. 

At the end of that hearing, the Chairman offered to hold additional hearings -- “as many as we need,” I believe were his words.  I think we do need more hearings, especially on Section 9.  Several other Senators, including three Republican Senators, have also requested more hearings on these matters.  We need answers from the Administration to our questions.  We need to know what we are legislating about before we legislate, not after.

To the extent that I have been able to figure out the complex and muddled language of Section 9, it would appear to permit vast new amounts of warrantless surveillance of telephone calls involving American citizens.  It would allow limitless delegation of the Attorney General’s authority, down to the lowest-level government employee.  It would also immunize from prosecution anyone who breaks into a home or office in the United States to search for foreign intelligence information, if he is acting at the behest of the President. 

Why are these changes needed?  What exactly is it that cannot be done on the basis that surveillance has always been conducted in this country – with a warrant?  How would the changes affect the rights and liberties of Americans?  What Government abuses would they enable, and how much further would they degrade the accountability of the Government to the American people?  These changes go far beyond anything we did either in the PATRIOT Act or in this year’s reauthorization of the PATRIOT Act.  Before we vote on them, we need to know how the Administration interprets and would apply them, and why it believes it needs them.

Section 8 of the bill, which I understand to be another Bush-Cheney Administration demand, is simpler but perhaps even more troubling.  This section would repeal FISA's “exclusivity” provision and affirmatively acknowledge the President’s purported authority to conduct surveillance outside of FISA, transforming FISA from a check on Executive power to a blank check for the Executive.  Compliance with FISA would become purely optional -- the President could use it or not, at his discretion. 

Presumably, the Bush-Cheney Administration did not ask for the outright repeal of FISA because it knew that it would be politically unacceptable.  But Section 8 amounts to the same thing.  The point of FISA is to set requirements and create procedures for the Government to obtain warrants, in peacetime and in wartime, sometimes before and sometimes after the fact, for foreign intelligence surveillance activities in the United States.  If you say, as Section 8 does, that the President can engage in those activities without obtaining a warrant at all, then you render FISA meaningless and mock the whole idea of the rule of law. 

If we want to have a debate about repealing FISA, let’s have that debate.  I know where I stand:  Always ready to fine-tune the law, but firmly opposed to repealing a law that has been understood as an essential defense of American’s liberties and an essential check on Government abuse for decades.  If we want to resolve the validity of the President’s claim that FISA is unconstitutional – because that is what his inflated conception of “inherent powers” amounts to – let’s go ahead with the judicial review proceedings that the President should have allowed to proceed five years ago and get the Supreme Court to address the issue.  But let’s not repeal FISA under the guise of a supposedly technical amendment without a candid and open discussion.

Sections 4 through 6 of the bill raise yet more serious concerns.  They would abandon the traditional, case-by-case review contemplated by FISA and introduce the notion of “program warrants.”  A single FISA court judge could approve whole programs of electronic surveillance – if the government bothered to seek the Court’s approval, which is not mandatory under this version of the bill. 

I know of no judicial authority for program warrants and have grave doubts about the constitutionality of these provisions.  In effect, the bill would punt fundamental policy questions about the appropriate scope and limits of electronic surveillance to an unelected and secret court.  Sections 4 through 6 say, in effect, that “anything that’s okay with the FISA court is okay with us.” 

That impression is reinforced by a further, troubling proposed change in the standard that the FISA court judge is to apply in issuing warrants.  The traditional standard that is written into the FISA statute is the same as the constitutional standard under the Fourth Amendment: “probable cause.”  And that is the standard the Administration purports to apply now.  Why, then, would the bill change the standard?  Under the bill, the court need only find that a program is “reasonably designed” to ensure that the communications to be intercepted involve someone who is “reasonably believed to have communication with or be associated with” a suspected terrorist.  That standard could allow for expansive surveillance of innocent Americans who have been in inadvertent contact with legitimate targets of surveillance. 

Combined, these provisions would replace the traditional model for issuance of warrants – a judge making a fact-based determination as to probable cause in an individual case -- with a fundamentally different model, under which judges would make what are essentially policy decisions about the “reasonableness” of entire government programs.  This would, perhaps, make a fitting ending for the 109^th Congress.  This Republican Congress has consistently been supine in all matters of Government accountability.  With these provisions, it could formally abdicate its democratic responsibilities to a single, unelected judge.  But that abdication would be wrong.  Congress should be setting the rules here, not a single district judge on the secret FISA court. 

There is another problem with the program warrant provisions in the current bill.  The bill would allow the FISA court to issue program warrants for purely domestic communications.  But the Administration has stated that such communications are not part of its program.  And the Attorney General has said that FISA works fine for domestic-to-domestic wiretaps.  If it works fine, there is no reason to change it, unless the Administration has some hidden agenda that it is keeping from Congress and the American people.

As for the purported upside of the bill for Government accountability, I fear it is illusory.  The President has promised Chairman Specter that, if we pass the bill without changes, he will seek the Court’s approval for the one secret spying program he has publicly acknowledged.  I suppose that any concession to accountability from this Administration is something, so I congratulate Senator Specter.  But handshakes or side-agreements between the President and a single Member of Congress are no substitute for the rule of law. 

The accountability of the Government to the American people is far too important to trust to a handshake.  The Framers did not give us a Constitution built on handshakes; they gave us a Constitution built on checks and balances.  I for one am not prepared to surrender that legacy to the “Just Trust Us” Bush-Cheney Administration.  Just trusting this Administration proved its failure as a policy long, long ago.  

The original version of the Chairman’s bill did the right thing in this regard, by requiring the President to submit his program to the FISA Court.  The Chairman has said that he would have preferred to retain that mandate, but the President would not agree to it because he was “unwilling to bind future Presidents and make an institutional change in the powers the President has.”  That objection presupposes the President’s preferred view of his existing powers, which I, along with the vast majority of constitutional scholars, believe to be grossly inflated.  But anyway, if that is really the stumbling block, it is easily addressed.  We could restore the mandate as Chairman Specter originally drafted it, but have it expire in January 2009, when this President leaves office.  In other words, we could require this President to do what he has already said he would do, without addressing the duties of future Presidents in any way.  There would be no need for messy and unenforceable side-agreements. 

Instead, notwithstanding the Chairman’s well-intentioned goal of enhancing judicial review, the only provisions in the bill that directly address judicial review actually restrict it.  The bill would consolidate all cases relating to the Administration’s surveillance programs before the FISA Court of Review.  Consolidation may make sense, but we do not need the bill to do that.  In fact, at the Administration’s request, the Judicial Panel on Multidistrict Litigation has already consolidated 17 lawsuits throughout the United States filed against telephone companies accused of helping the Bush-Cheney Administration monitor Americans’ communications without warrants.  The bill’s provision for channeling all litigation to the FISA Court of Review amounts to yet one more constitutionally questionable device to increase secrecy and limit Government accountability.

There is much more to say, but let me end with a small but troubling point.  I was surprised to read the finding in Section 2 of the bill, relating to Zacarias Moussaoui.  It says that the FBI “could not” meet the requirements to obtain a warrant to search his laptop computer.  Based on the information known to this Committee, that finding is false. 

When I was Chairman of this Committee, Senator Specter and Senator Grassley and I released a 37-page report entitled “FISA Implementation Failures” in which we concluded that the Bureau could have gotten a warrant for Moussaoui’s computer.  It failed to do so because key FBI officials misunderstood the probable cause standard, and because of a deep-rooted culture that stifled aggressive and creative investigative initiatives from agents in the field.

In other words, we found, FISA was not the problem.  Rather, the problem was the flawed implementation system for FISA that had developed at DOJ and the FBI over the years. 

I am reciting this history because it is instructive.  Thorough oversight by this Committee during the 107th Congress uncovered problems in the administration of FISA, but reaffirmed the basic workability of the FISA process.  I suspect that thorough oversight by this Committee in the 109th Congress might well lead us to the same conclusion -- that FISA is not fatally flawed, as some defenders of the President’s program now claim.  And I am confident that a proper investigation by this Committee would lead to a bipartisan conclusion that scrapping FISA is not the answer, and nor is the comprehensive gutting of FISA that S.2453 would effect.

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