STATEMENT OF CONGRESSMAN JOHN CONYERS, JR.
There
can be no doubt that today we are in a constitutional crisis that
threatens the system of checks and balances that has preserved our
fundamental freedoms for more than 200 years. There is no better
illustration of that crisis than the fact that the president is openly
violating our nation’s laws by authorizing the NSA to engage in
warrantless surveillance of U.S. citizens.
The
Bush Administration offers two arguments to justify their actions.
First, they assert, that warrantless searches were authorized by the
Afghanistan use of force resolution. Second, they say, the Constitution
permits and even mandates such actions. To this member and indeed to
most of our nation’s legal community, neither argument is remotely
plausible or credible, and nothing in their 42 page legal analysis
establishes anything to the contrary.
As
for the Administration’s claim of statutory authority, a plain reading
of the text of the resolution reveals that there is no reference
whatsoever to domestic surveillance. Former Majority Leader Daschle
told us that the resolution was narrowed from the Administration’s
initial request to avoid such construction, and the Attorney General
went so far as to admit that they were told by Members of Congress that
it would be “difficult if not impossible” to amend the law to authorize
such a program. As Harvard Law Professor Larry Tribe wrote me, “to
argue that one couldn’t have gotten congressional authorization ...
after arguing that ... one did get congressional authorization ...
takes some nerve.”
In
terms of inherent constitutional authority, this too flies in the face
of both common sense and legal precedent. If the Supreme Court didn’t
let President Truman use this authority to take over the steel mills
during the Korean War in 1952, and wouldn’t let President Bush use the
authority to indefinitely hold enemy combatants in 2005, it is quite
obvious the constitution doesn’t allow warrantless wiretapping of U.S.
citizens today. As Justice O’Connor wrote “a state of war is not a
blank check.” Perhaps what is most troubling of all is that if we let
this domestic spying program continue, if we let this president
convince us that we are at war, so he can do what he wants, we will
allow to stand the principle that the president alone can decide what
laws apply to him. I submit that is not only inconsistent with the
principles upon which our Republic was founded, it denigrates the very
freedom we have been fighting for since the tragic events of September
11. That is why we are holding today’s hearing.
P R O C E E D I N G S
MR. CONYERS: The Democratic subcommittee will come to order. Good morning, ladies and gentlemen. I'm so delighted that we're all here again in the basement of the Rayburn Building, like we were in the Downing Street memos hearing, perhaps in a little bit more upscale part of the basement area. We're very delighted to see all of my colleagues that are here, who will have some comments, brief comments to make, as I will. And we're very delighted to have our six witnesses present. I'm going to introduce them shortly.
Ladies and gentlemen, there can be little doubt that we're in a constitutional crisis that threatens the system of checks and balances that have preserved our fundamental freedoms for over 200 years. There's no better illustration of that crisis than the fact that the President of the United States is violating our Nation's laws by authorizing the National Security Administration, NSA, to engage in warrantless surveillance of United States citizens.
The administration offers two arguments to justify their actions. First, they assert that warrantless searches were authorized by the Afghanistan use-of-force resolution passed by Congress. And, second, they say that the Constitution permits and even mandates such actions. To many of us, this is indeed a very remotely plausible and very little credible argument. Neither of these, I don't think, will withstand close scrutiny.
But to make sure that in fairness we got the whole story, the Attorney General had put out a 42-page memo, once again defending his position. I called Attorney General Gonzales this morning and reinvited him or his representative to come and join us here this morning to make their case before all of us, the Members of Congress and our expert witnesses. And I just want to ask: Is there any representative from the Attorney General's office present in B339?
[No response.]
MR. CONYERS: Now, as for the claim of statutory authority, a plain reading of the text of the resolution to me reveals there is no reference whatsoever to domestic surveillance, and we learned from the former Senate Majority leader Mr. Daschle that the resolution had been narrowed from the administration's initial request to avoid such construction, and the Attorney General went so far as to admit that he had been advised that it would be "difficult if not impossible" for Members of Congress to amend the law to avoid such a program. As Harvard constitutional law professor Laurence Tribe wrote me, to argue that one couldn't have gotten congressional authorization after arguing previously that they had gotten congressional authorization takes some nerve."
In terms of inherent constitutional authority, this also flies in the face of both common sense and legal precedent. If the Supreme Court didn't let President Truman use this authority to take over the steel mills during the Korean War in 1952 and wouldn't let President Bush use the authority to indefinitely hold enemy combatants in 2005, it is obvious the Constitution doesn't allow warrantless wiretapping of United States citizens today. As Justice O'Connor famously wrote, the President does not have a blank check because of the state of war. Or to put it more in her terms, "a state of war is not a blank check."
What may be most troubling of all is that if we let domestic spying programs continue, if we let our President convince us that we are at war so that he can do what he wants, we will allow to stand the principle that the President alone can decide what laws apply to him. I submit this is not only inconsistent with the principles upon which our Republic was founded, but it really denigrates the very freedom we've been fighting for since the tragic events of September 11, 2001. And so that is why we are holding today's hearing.
The Foreign Intelligence Surveillance Act law allows domestic wiretaps to our Government and the President, both coming and going. And so I'm very delighted now to recognize my colleague from California, Mr. Adam Schiff, for a few brief opening remarks.
MR. SCHIFF: Thank you, Mr. Chairman, and welcome, everyone, to the basement. We are here in the basement today because evidently all the committee rooms are in use today.
[Laughter.]
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