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Preliminary
Judiciary Democratic Congressional Briefing "Constitution in Crisis: Domestic Surveillance and Executive Power" |
TABLE OF CONTENTS
WRITTEN STATEMENT TRANSCRIPT STATEMENT |
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Congressional Briefing on the
Scope of Executive Power Since 9/11: Presidential Authority to Conduct Warrantless Electronic Surveillance Before Members of the Committees of the Judiciary and the Select Committee on Intelligence House of Representatives Statement of Kate Martin Director, Center for National Security Studies Friday, January 20, 2006∗ The President claims he has authority as the Commander-in-Chief to conduct warrantless wiretaps of Americans. But when Congress enacted the Foreign Intelligence Surveillance Act in 1978, it expressly rejected the President’s claim of inherent authority to conduct warrantless wiretaps. It then went further and made it a crime to conduct such wiretaps.
The President has acted contrary to the express will of the Congress. The Supreme Court has never approved a claim of presidential authority to authorize acts outlawed by the Congress. When Congress authorized secret wiretaps for national security purposes in 1978, it intended to prevent any future President from carrying out warrantless eavesdropping on Americans. It made its intention clear in five different sections of the law. 1. When Congress enacted FISA in 1978, it explicitly refused to provide an exception to enable the President to eavesdrop on Americans without getting a judicial warrant. It repealed the provision which the government had relied upon in claiming inherent presidential authority for warrantless wiretaps:
Nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to
∗ This statement was prepared with the assistance of Brittany Benowitz at the Center for National Security Studies Page 2 of 3
protect the United States against the overthrow of the Government by force or other
unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.” Pub. L. No. 90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2520 (1968)). The government had argued in the Keith case that this provision supported the President’s constitutional authority to conduct warrantless wiretaps; but the Court found it neutral on the President’s authority, not congressional authorization for warrantless surveillance. United States v. United States District Court [Keith], 407 U.S. 297, 303 (1972). 2. Congress also refused to enact the language proposed by the Ford administration that: “[n]othing contained in this chapter shall limit the constitutional power of the President to order electronic surveillance for the reasons stated in section 2511(3) of title 18, United States Code, if the facts and circumstances giving rise to such order are beyond the scope of this chapter.” S. 3197, 94th Cong. 2d Sess, § 2528 (Mar. 23, 1976), reprinted in Hearings on S. 743, S. 1888, S. 3197 Before the Subcomm. On Criminal Laws and Procedures of the Senate Judiciary Comm., 94th Cong., 2d Sess. 134 (1976) (stating in the first page of the report that S. 3197 was identical to the measure transmitted to the Senate by the President on March 23, 1976). 3. Instead, in FISA Congress enacted a comprehensive scheme governing all foreign intelligence wiretaps, including provisions for emergency wiretaps in advance of warrants and wiretaps of leased lines by foreign embassies inside the US without warrants, because foreign governments are not covered by the Fourth Amendment. It expressly provided that after a declaration of war the Attorney General could authorize warrantless wiretaps for 15 days. Those steps alone would have sufficed to prohibit warrantless wiretaps, but the Congress went further. 4. It expressly made it a crime for government officials "acting under color of law" to engage in electronic eavesdropping "other than pursuant to statute." 50 U.S.C. 1809. 5. Congress again made explicit that the FISA and the criminal wiretap laws “shall be the exclusive means by which electronic surveillance … communications may be conducted.” (Now codified at 18 USC 2511(f).) Section 201 of the FISA as enacted in 1978 provided that:
Nothing contained in this chapter, or section 605 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications by a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and
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electronic communications may be conducted. Pub. L. No. 95-511, 92 Stat. 1783, § 201 (1978).
The legislative history confirms Congress’ intent to limit the authorities for wiretapping. As the conference report explains:
The Senate Bill provided that the procedures in this bill and in Chapter 119 of Title 18, United States Code, shall be the exclusive means by which electronic surveillance, as defined in this bill, and the interception of domestic wire and oral communications may be conducted. The House amendments provided that the procedures in this bill and in Chapter 119 of Title 18, U.S.C. shall be the exclusive statutory means by which electronic surveillance as defined in this bill and the interception of domestic wire and oral communications may be conducted. The Conference substitute adopts the Senate provision which omits the word ‘statutory’. (emphasis added.) Joint Explanatory Statement of the Committee of the Conference, House Conference Rep. No. 95-1720, 35 (Oct. 5, 1978).
Conclusion:
Confronted with this explicit law against warrantless wiretaps, the administration is now claiming that it had authority from Congress. But its contention that the congressional resolution for the use of force following the September 11, attacks authorized its warrantless surveillance is ludicrous. FISA states that following a declaration of war by the Congress, the President, acting through the Attorney General, may institute electronic surveillance without a court order for no more than fifteen days. (50 USC 1811.) At best, the September 2001 resolution is the equivalent of a declaration of war. At most, therefore, the resolution authorized warrantless surveillance for fifteen days. Nothing in the resolution can be read as amending this specific limitation to allow unlimited warrantless surveillance. END OF WRITTEN STATEMENT
TRANSCRIPT - SPOKEN STATEMENT
MR. CONYERS: Thank you so much. Attorney Kate Martin, welcome. MS. MARTIN: Thank you, Representative Conyers, and I want to thank all of the distinguished Members of the House of Representatives for holding this hearing. I want to echo the remarks made by people today about the abdication of the constitutional responsibility of the House of Representatives in failing to hold any formal hearings, and such formal hearings would conduct oversight over this program and are necessary not only to protect our basic civil liberties but, in addition, to ensure that the departments inside the executive branch are, in fact, engaging in effective counterterrorism activities and not once again going down the path looking at easy and perhaps politically unpopular targets while missing those who would actually do us harm, and that oversight which the House of Representatives to date has refused to engage in is necessary for both purposes. I want to elaborate just for a moment on the legal analysis presented before you today by my colleagues here on this panel and make just a couple of points. First, as has been pointed out, the Foreign Intelligence Surveillance Act in three different ways prohibits the President from conducting wiretapping outside of the four corners of that act and criminal wiretap statutes. And, in fact, the specific issue of whether or not the President had inherent authority to conduct warrantless wiretaps outside of those statutes was considered during the 2 years in which Congress debated and then enacted the Foreign Intelligence Surveillance Act and expressly rejected by the Congress at the time. The President's signed the bill, and there was no statement that that limitation was unconstitutional. The President now argues that, to the extent that the FISA prohibits the President from engaging in warrantless wiretapping outside of its procedures, it is unconstitutional. In deciding that claim, I agree that it's a specious claim, but I think that we can look more specifically to the text of the Constitution. Fundamentally, their argument goes, the President is acting here as Commander in Chief to respond to the 9/11 attacks, and as Commander in Chief he has the sole power to make certain kinds of decisions. In my judgment, that's true. For example, when and where to attack in Afghanistan is a matter on which Congress, once the attacks in Afghanistan have been authorized, can have nothing to say. What kind of troops to insert into a specific place is a matter within the President's Commander in Chief authority. But the question of whom and when to wiretap on Americans inside the United States is a matter that the Constitution specifically commits to more than one branch when, in the Fourth Amendment, it states that searches and seizures require a warrant, and that warrant is to be issued by the judiciary branch. So the claim here of inherent authority is structurally contradicted by the Constitution itself, which says that the power to conduct searches and seizures belongs in part to the judiciary, as well as to the Congress, which here has set the standards for the judiciary to apply in issuing warrants. I think it's necessary and we should not forget that it is not simply a claim that the President has the sole power to decide which laws to violate and when to go outside the judicial power, but that he has the power to do so in secret. Remember that until the New York Times reviewed this program, he withheld the fact from the American people that his view was that FISA did not limit his powers. He secretly believed that he had broader authority than was laid out in the public statutes, but he withheld and misled the American people about that view of his own powers. And that's evidenced in the statement that Representative Scott quoted, but it is again evidence in many of the testimonies that were put before the House of Representatives in connection with the PATRIOT Act. One thing I would urge you to do is to examine what kind of misleading statements, if not deception, were put before the Congress in connection with this program. We were assured repeatedly that Americans' privacy was safe because there were checks and balances in place and the administration was following the law. We all understood the law to be that which was publicly enacted, when it turned out that the administration with a wink and a nod has apparently deemed there to be some kind of secret law and then misled the American people and the Congress in what that law and what those authorities were. Just one final comment on that. The President has claimed that the secrecy was necessary for national security reasons to prevent al Qaeda from knowing that we were wiretapping them. That claim is absurd on its face, I submit to you. From day one, before 9/11, al Qaeda knew that we were trying to wiretap them, as we should be doing. Al Qaeda knew that the PATRIOT Act was about amending the Foreign Intelligence Surveillance Act to make it easier to wiretap on al Qaeda. It makes no difference to al Qaeda whether or not they're being wiretapped with a warrant or without a warrant. [Laughter.] MS. MARTIN: It makes a difference to the American people whether or not the President is engaging in wiretaps of Americans without a warrant, and that, I submit to you, is most likely the justification for keeping this program secret. Thank you. MR. CONYERS: Thank you so much. Ladies and gentlemen, the testimony, the written statements, the comments of these six witnesses I think reach a level of such historical importance that I am so flattered and honored that not just the members here but all the members in the Congress who feel that there should have been more formal hearings will rest more comfortably in their beds tonight knowing what we have done. What you have presented us with has been so important. And I assure you that this is not just a hearing and then we will move on to other things. |
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