Senator Russ Feingold
Bush Censure Resolution - March
Mr. President, when the President of the
United States breaks the law, he must be held accountable. That
is why today I am introducing a resolution to censure President
George W. Bush.
The President authorized an illegal program
to spy on American citizens on American soil, and then misled
Congress and the public about the existence and legality of that
program. It is up to this body to reaffirm the rule of law by
condemning the President's actions.
All of us in this body took an oath to
support and defend the Constitution of the United States and bear
true allegiance to the same. Fulfilling that oath requires us
to speak clearly and forcefully when the President violates the
law. This resolution allows us to send a clear message that the
President's conduct was wrong.
And we must do that. The President's actions
demand a formal judgment from Congress.
At moments in our history like this, we
are reminded why the founders balanced the powers of the different
branches of government so carefully in the Constitution. At the
very heart of our system of government lies the recognition that
some leaders will do wrong, and that others in the government
will then bear the responsibility to do right.
This President has done wrong. This body
can do right by condemning his conduct and showing the people
of this nation that his actions will not be allowed to stand unchallenged.
To date, members of Congress have responded
in very different ways to the President's conduct. Some are responding
by defending his conduct, ceding him the power he claims, and
even seeking to grant him expanded statutory authorization powers
to make his conduct legal. While we know he is breaking the law,
we do not know the details of what the President has authorized
or whether there is any need to change the law to allow it, yet
some want to give him carte blanche to continue his illegal conduct.
To approve the President's actions now, without demanding a full
inquiry into this program, a detailed explanation for why the
President authorized it, and accountability for his illegal actions,
would be irresponsible. It would be to abandon the duty of the
legislative branch under our constitutional system of separation
of powers while the President recklessly grabs for power and ignores
the rule of law.
Others in Congress have taken important
steps to check the President. Senator Specter has held hearings
on the wiretapping program in the Judiciary Committee. He has
even suggested that Congress may need to use the power of the
purse in order to get some answers out of the Administration.
And Senator Byrd has proposed that Congress establish an independent
commission to investigate this program.
As we move forward, Congress will need
to consider a range of possible actions, including investigations,
independent commissions, legislation, or even impeachment. But,
at a minimum, Congress should censure a president who has so plainly
broken the law.
Our founders anticipated that these kinds
of abuses would occur. Federalist Number 51 speaks of the Constitution's
system of checks and balances:
"It may be a reflection on human
nature, that such devices should be necessary to control the abuses
of government. But what is government itself, but the greatest
of all reflections on human nature? If men were angels, no government
would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary. In framing
a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to control
Mr. President, we are faced with an executive
branch that places itself above the law. The founders understood
that the branches must check each other to control abuses of government
power. The president's actions are such an abuse, Mr. President.
His actions must be checked, and he should be censured.
This President exploited the climate of
anxiety after September 11, 2001, both to push for overly intrusive
powers in the Patriot Act, and to take us into a war in Iraq that
has been a tragic diversion from the critical fight against al
Qaeda and its affiliates. In both of those instances, however,
Congress gave its approval to the President's actions, however
mistaken that approval may have been.
That was not the case with the illegal
domestic wiretapping program authorized by the President shortly
after September 11th. The President violated the law, ignored
the Constitution and the other two branches of government, and
disregarded the rights and freedoms upon which our country was
founded. No one questions whether the government should wiretap
suspected terrorists. Of course we should, and we can under current
law. If there were a demonstrated need to change that law, Congress
could consider that step. But instead the President is refusing
to follow that law while offering the flimsiest of arguments to
justify his misconduct. He must be held accountable for his actions.
The facts are straightforward: Congress
passed the Foreign Intelligence Surveillance Act, known as "FISA",
nearly 30 years ago to ensure that as we wiretap suspected terrorists
and spies, we also protect innocent Americans from unjustified
government intrusion. FISA makes it a crime to wiretap Americans
on U.S. soil without the requisite warrants, and the President
has ordered warrantless wiretaps of Americans on U.S. soil. The
President has broken that law, and that alone is unacceptable.
But the President did much more than that.
Not only did the President break the law,
he also actively misled Congress and the American people about
his actions, and then, when the program was made public, about
the legality of the NSA program.
He has fundamentally violated the trust
of the American people.
The President's own words show just how
seriously he has violated that trust.
We now know that the NSA wiretapping program
began not long after September 11th. Before the existence of this
program was revealed, the President went out of his way in several
speeches to assure the public that the government was getting
court orders to wiretap Americans in the United States - something
that he now admits was not the case.
On April 20, 2004, for example, the President
told an audience in Buffalo that: "Any time you hear the
United States government talking about wiretap, it requires -
a wiretap requires a court order. Nothing has changed, by the
In fact, a lot had changed, but the President
wasn't being upfront with the American people.
Just months later, on July 14, 2004, in
my own state of Wisconsin, the President said that: "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."
Last summer, on June 9, 2005, the President
spoke in Columbus, Ohio, and again insisted that his administration
was abiding by the laws governing wiretaps. "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."
In all of these cases, the President knew
he wasn't telling the complete story. But engaged in tough political
battle during the presidential campaign, and later over Patriot
Act reauthorization, he wanted to convince the public that a systems
of checks and balances was in place to protect innocent people
from government snooping. He knew when he gave those reassurances
that he had authorized the NSA to bypass the very system of checks
and balances that he was using as a shield against criticisms
of the Patriot Act and his Administration's performance.
This conduct is unacceptable. The President
had a duty to play it straight with the American people. But for
political purposes, he ignored that duty.
After a New York Times story exposed the
NSA program in December of last year, the White House launched
an intensive effort to mislead the American people yet again.
No one would come to testify before Congress until February, but
the President's surrogates held press conferences and made speeches
to try to convince the public that he had acted lawfully.
Most troubling of all, the President himself
participated in this disinformation campaign. In the State of
the Union address, he implied that the program was necessary because
otherwise the government would be unable to wiretap terrorists
at all. That is simply untrue. In fact, nothing could be further
from the truth. You don't need a warrant to wiretap terrorists
overseas - period. You do need a warrant to wiretap Americans
on American soil and Congress passed FISA specifically to lay
out the rules for these types of domestic wiretaps.
FISA created a secret court, made up of
judges who develop national security expertise, to issue warrants
for surveillance of suspected terrorists and spies. These are
the judges from whom the Bush Administration has obtained thousands
of warrants since 9/11. They are the judges who review applications
for business records orders and wiretapping authority under the
Patriot Act. The Administration has almost never had a warrant
request rejected by those judges. It has used the FISA Court thousands
of times, but at the same time it asserts that FISA is an "old
law" or "out of date" in this age of terrorism
and can't be complied with. Clearly, the Administration can and
does comply with it - except when it doesn't. Then it just arbitrarily
decides to go around these judges, and around the law.
The Administration has said that it ignored
FISA because it takes too long to get a warrant under that law.
But we know that in an emergency, where the Attorney General believes
that surveillance must begin before a court order can be obtained,
FISA permits the wiretap to be executed immediately as long as
the government goes to the court within 72 hours. The Attorney
General has complained that the emergency provision does not give
him enough flexibility, he has complained that getting a FISA
application together or getting the necessary approvals takes
too long. But the problems he has cited are bureaucratic barriers
that the executive branch put in place, and could remove if it
FISA also permits the Attorney General
to authorize unlimited 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 required
by a wartime emergency. That is the time period that Congress
specified. Yet the President thinks that he can do this indefinitely.
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. Mr. President, that is ridiculous. Members
of Congress did not pass this resolution to give the President
blanket authority to order warrantless wiretaps. We all know that.
Anyone in this body who would tell you otherwise either wasn't
here at the time or isn't telling the truth. We authorized the
President to use military force in Afghanistan, a necessary and
justified response to September 11. 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. That is why both Republicans and Democrats
have questioned this theory.
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.
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. 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.
In addition, in the intelligence authorization
bill passed in December 2001, we extended the emergency authority
in FISA, at the Administration's request, from 24 to 72 hours.
Why do that if the President has the power to ignore FISA? That
makes no sense at all.
The President has also said that his inherent
executive power gives him the power to approve this program. But
here the President is acting in direct violation of a criminal
statute. That means his power is, as Justice Jackson said in the
steel seizure cases half a century ago, "at its lowest ebb."
A 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." The Senate reports issued when
FISA was enacted confirm the understanding that FISA overrode
any pre-existing inherent authority of the President. As the 1978
Senate Judiciary Committee report stated, FISA "recognizes
no inherent power of the president in this area." And "Congress
has declared that this statute, not any claimed presidential power,
controls." 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.
The President's claims of inherent executive
authority, and his assertions that the courts have approved this
type of activity, are baseless.
But it is one thing to make a legal argument
that has no real support in the law. It is much worse to do what
the President has done, which is to make misleading statements
about what prior Presidents have done and what courts have approved,
to try to make the public believe his legal arguments are much
stronger than they are.
For example, in the State of the Union,
the President argued that federal courts have approved the use
of presidential authority that he was invoking. I asked the Attorney
General about this when he came before the Judiciary Committee,
and he could point me to no court - not the Supreme Court or any
other court - that has considered whether, after FISA was enacted,
the President nonetheless had the authority to bypass it and authorize
warrantless wiretaps. Not one court. The Administration's effort
to find support for what it has done in snippets of other court
decisions would be laughable if this issue were not so serious.
In the same speech, the President referred
to other Presidents in American history who cited executive authority
to order warrantless surveillance. But of course, those past presidents
- like Wilson and Roosevelt - were acting before the Supreme Court
decided in 1967 that our communications are protected by the Fourth
Amendment, and before Congress decided in 1978 that the executive
branch could no longer unilaterally decide which Americans to
wiretap. I asked the Attorney General about this issue when he
testified before the Judiciary Committee. And neither he nor anyone
in the Administration has been able to come up with a single prior
example of wiretapping inside the United States since 1978 that
was conducted outside FISA's authorization.
So the President's arguments in the State
of the Union were baseless, and it is unacceptable that the President
of the United States would so obviously mislead the Congress and
The President also has argued that periodic
internal executive branch review provides an adequate check on
the program. He has even characterized this periodic review as
a safeguard for civil liberties. But we don't know what this check
involves. And we do know that Congress explicitly rejected this
idea of unilateral executive decision-making in this area when
it passed FISA.
Finally, the President has tried to claim
that informing a handful of congressional leaders, the so-called
Gang of Eight, somehow excuses breaking the law. Of course, several
of these members said they weren't given the full story. And all
of them were prohibited from discussing what they were told. So
the fact that they were informed under these extraordinary circumstances
does not constitute congressional oversight, and it most certainly
does not constitute congressional approval of the program.
Indeed, it doesn't even comply with the
National Security Act, which requires the entire memberships of
the House and Senate Intelligence Committee to be "fully
and currently informed of the intelligence activities of the United
States." Nor does the latest agreement to allow a seven-member
subcommittee to review the program comply with the law. Granting
a minority of the committee access to information is inadequate
and still does not comply with the law requiring that the full
committee be kept fully informed.
In addition, we now know that some of
the Gang of Eight expressed concern about the program. The Administration
ignored their protests. One of the eight members of Congress who
has been briefed about the program, Congresswoman Jane Harman,
ranking member of the House Intelligence Committee, has said she
sees no reason why the Administration cannot accomplish its goals
within the law as currently written.
None of the President's arguments explains
or excuses his conduct, or the NSA's domestic spying program.
Not one. It is hard to believe that the President has the audacity
to claim that they do.
And perhaps that is what is most troubling
here, Mr. President. Even more troubling than the arguments the
President has made is what he relies on to make them convincing
- the credibility of the office of the President itself. He essentially
argues that the American people should trust him simply because
of the office he holds.
But Presidents don't serve our country
by just asking for trust, they must earn that trust, and they
must tell the truth.
This President hides behind flawed legal
arguments, and even behind the office he holds, but he cannot
hide from what he has created: nothing short of a constitutional
crisis. The President has violated the law, and Congress must
respond. Congress must investigate and demand answers. Congress
should also determine whether current law is inadequate and address
that deficiency if it is demonstrated. But before doing so, Congress
should ensure that there is accountability for authorizing illegal
A formal censure by Congress is an appropriate
and responsible first step to assure the public that when the
President thinks he can violate the law without consequences,
Congress has the will to hold him accountable. If Congress does
not reaffirm the rule of law, we will create another failure of
leadership, and deal another blow to the public's trust.
The President's wrongdoing demands a response.
And not just a response that prevents wrongdoing in the future,
but a response that passes judgment on what has happened. We in
the Congress bear the responsibility to check a President who
has violated the law, who continues to violate the law, and who
has not been held accountable for his actions.
Passing a resolution to censure the President
is a way to hold this President accountable. A resolution of censure
is a time-honored means for the Congress to express the most serious
disapproval possible, short of impeachment, of the Executive's
conduct. It is different than passing a law to make clear that
certain conduct is impermissible or to cut off funding for certain
activities. Both of those alternatives are ways for Congress to
affect future action. But when the President acts illegally, he
should be formally rebuked. He should be censured.
The founders anticipated abuses of executive
power by creating a balance of powers in the Constitution. Supporting
and defending the Constitution, as we have taken an oath to do,
require us to preserve that balance, and to have the will to act.
We must meet a serious transgression by the President with a serious
response. We must work, as the founders urged us in Federalist
Number 51, to control the abuses of government.
The Constitution looks to the Congress
to right the balance of power. The American people look to us
to take action, to speak out, with one clear voice, against wrongdoing
by the President of the United States. In our system of government,
no one, not even the President, is above the law.
Mr. President, I ask unanimous consent
that the text of the resolution be printed in the Record following
my remarks. I yield the floor.
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