First, I intend to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues—including the statutes forbidding flag burning and requiring Congress to abide by federal employment laws—and I will follow those.
Second, I will reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration’s warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008, this issue may yet be successfully revisited since the courts have not yet ruled on the legality of the immunity provision. My legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded.
Further, I will reintroduce my legislation from 2006 and 2007 (the “Presidential Signing Statements Act”) to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent. Earlier versions of my legislation went nowhere because of the obvious impossibility of obtaining two-thirds majorities in each house to override an expected veto by President Bush. Nevertheless, in the new Congress, my legislation has a better chance of mustering a majority vote and being signed into law by President Obama.
To understand why these steps are so important, one must appreciate an imbalance in our “checks and balances” that has become increasingly evident in recent years. I witnessed firsthand, during many of the battles over administration policy since September 11, how difficult it can be for Congress and the courts to rally their members against an overzealous executive.
The Terrorist Surveillance Program—Act I
As chairman of the Senate Judiciary Committee from 2005 to 2007, I led the effort to reauthorize and improve the 2001 USA PATRIOT Act, which was originally set to expire at the end of 2005. Indeed, after intensive bipartisan negotiations, the Judiciary Committee succeeded—to the surprise of most observers—in approving a revised bill by unanimous vote. The full Senate then approved the bill by unanimous consent, but the conference report negotiated with the House of Representatives faced stiffer opposition. Nevertheless, after days of floor debate, I awoke on December 16, 2005, fully expecting to finish Senate action on the long-delayed reauthorization.
So, I was startled to read the lead story in The New York Times that morning, titled “Bush Lets US Spy on Callers Without Courts,” which revealed that our intelligence agencies had been engaged in warrantless wiretapping since shortly after September 11, in clear violation of the Foreign Intelligence Surveillance Act (FISA) of 1978.1 The news caused the Senate to delay passage of the Patriot Act reauthorization for months. Senator Charles Schumer expressed the sentiments of many:
I went to bed last night unsure of how to vote on this legislation…. Today’s revelation that the Government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote.2
More importantly, the disclosure in the Times launched a fierce debate about the extent of presidential authority in the war on terror that has yet to be fully resolved.
When Congress reconvened in January 2006, I held multiple hearings into the program the Times revealed, later called the Terrorist Surveillance Program. As acknowledged by President Bush, this highly classified program, launched in the weeks after September 11, purported to authorize the National Security Agency to intercept phone calls between terror suspects overseas and persons inside the United States. Critics like me argued that the President’s program violated FISA. After all, the law declared the procedures set up by FISA to be the “exclusive means” by which such surveillance of telephone calls and other communications could be conducted. FISA also made criminal all domestic electronic surveillance designed to obtain foreign intelligence “except as authorized by statute.” Although the law defined limited exceptions in emergencies, reports in the press made it clear that none of them applied to the warrantless wiretapping that was done in the Terrorist Surveillance Program.
I recognized that, as administration supporters argued, the President might have inherent power to disregard FISA and to conduct unfettered foreign intelligence surveillance under Article II of the Constitution, the section that defines his authority as commander in chief. I was not, however, sympathetic to the administration’s further argument that Congress had implicitly authorized the President to carry out programs such as the Terrorist Surveillance Program when it authorized the use of military force against terrorists in September 2001.
I was also convinced that President Bush’s failure to notify Congress of the secret program violated provisions of the National Security Act of 1947. That statute requires the president to “ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States.” But the administration informed only eight legislators of the Terrorist Surveillance Program: the chairman and ranking members of the Senate and House intelligence committees, and the two top leaders in the majority and minority of both houses, leaving out both me and Senator Patrick Leahy as chair and ranking member of the Judiciary Committee, despite the fact that when FISA was enacted in 1978, it went through both the Intelligence and Judiciary Committees. While the National Security Act of 1947 explicitly permits notice to this limited “Gang of 8” for certain covert operations—such as efforts to influence foreign politics without disclosing the US role—the Terrorist Surveillance Program did not fit this exception.3
Indeed, those notified were very uneasy about the arrangement. Senator Jay Rockefeller, then ranking member on the Intelligence Committee, sent a secret handwritten letter to Vice President Dick Cheney saying that the administration’s surveillance activities “raised profound oversight issues” on which, owing to the arrangement, Rockefeller could not “consult staff or counsel.” Once the story broke, Representative Jane Harman, who as ranking member of the House Intelligence Committee was another “Gang of 8” member, informed President Bush that she believed “the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947.”
I raised this issue in a January 24, 2006, letter sent to Attorney General Alberto Gonzales in advance of the first Judiciary Committee hearing on the Terrorist Surveillance Program.4 Gonzales replied:
It has for decades been the practice of both Democratic and Republican administrations to inform only the Chair and Ranking Members of the intelligence committees about certain exceptionally sensitive matters.
The attorney general added that, according to the Congressional Research Service, the leaders of the intelligence committees had acquiesced in this practice. In my view, Gonzales’s argument could appeal only to those ignorant of the ways that the executive branch has, in practice, dealt with the intelligence committees. Administrations—of both parties—have sometimes told the chair and ranking member that they have important information to disclose, but insisted that they will reveal this information only to some group within the committee and the top congressional leadership, such as the “Gang of 8.” In many cases, the offer is accepted as the only way of getting the information—at least in a timely manner.
To the extent that the administration relied on such precedents to justify notifying only the “Gang of 8,” it should have informed me and Senator Leahy as well. Indeed, administration officials briefed both of us on the Terrorist Surveillance Program when they later sought comprehensive FISA reform. It is quite glaring, then, that they neglected to brief us in 2005, even as we were considering reauthorization of the Patriot Act, which was central to the administration’s counterterrorism efforts.
In the spring of 2006, new allegations about the government’s surveillance activities surfaced—not at congressional hearings, but again through leaks to the press. On May 11, 2006, USA Today reported that the National Security Agency had been “secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.”5 Although the records reportedly included only data like telephone numbers, rather than the contents of calls, the revelations stirred new controversy.
I asked Mr. Whitacre whether his company provided information to the federal government. He kept repeating that they “follow the law”7 —a comment that I told him was “contemptuous of this Committee,” because I was asking a factual question and he was offering a legal conclusion.
In truth, the matter merited its own hearing, but my efforts to hold one were thwarted by Vice President Cheney. Soon after the story broke, I announced my intention to schedule a hearing with the CEOs of the named carriers. I planned to either subpoena the companies or arrange a hearing closed to the public, which the telephone companies had agreed to attend without receiving a subpoena. Vice President Cheney went behind my back to persuade all of the other Republicans on the committee not to support the subpoena and to boycott the session I had called to discuss a possible private hearing. In response, I wrote the Vice President:
I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point.
If an accommodation cannot be reached with the administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement.
James Risen and Eric Lichtblau, "Bush Lets U.S. Spy on Callers Without Courts," The New York Times, December 16, 2005.↩
151 Congressional Record S13718, December 16, 2005, statement of Senator Schumer.↩
It is difficult to find a declassified example of a covert action that triggered a Gang of 8 notification. Partially declassified information suggests Clinton-era efforts to pursue Osama bin Laden may fit the bill. A heavily redacted section of the report from the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001 quotes former National Security Adviser Sandy Berger as saying, "[President Clinton] authorized a series of...covert actions to try to get bin Laden...." Later in that same section, captioned "Authorities to Conduct Covert Action Against Bin Ladin," it states, "within the Congress, distribution of [----] was limited to the [Gang of 8]. Congress did nor [sic] receive [----]." (Available at www.gpoaccess.gov/serialset/creports/pdf/fullreport_errata.pdf, pp. 281, 290.)↩
My questions and the attorney general's responses appear in the hearing record, "Wartime Executive Power and the National Security Agency's Surveillance Authority," hearing before the Senate Judiciary Committee, 109th Congress (2006), pp. 137–138, available at www.access.gpo.gov/congress/senate/pdf/109hrg/27443.pdf.↩
Leslie Cauley, "NSA Has Massive Database of Americans' Phone Calls," USA Today, May 11, 2006.↩
Associated Press, "AT&T Says It Can Disclose Account Data on Net, TV Clients," Chicago Sun-Times, June 22, 2006.↩
"The AT&T and Bellsouth Merger: What Does It Mean for Consumers?" hearing before the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights, 109th Congress (2006), pp. 10–13.↩
James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, December 16, 2005.↩
151 Congressional Record S13718, December 16, 2005, statement of Senator Schumer.↩
It is difficult to find a declassified example of a covert action that triggered a Gang of 8 notification. Partially declassified information suggests Clinton-era efforts to pursue Osama bin Laden may fit the bill. A heavily redacted section of the report from the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001 quotes former National Security Adviser Sandy Berger as saying, “[President Clinton] authorized a series of…covert actions to try to get bin Laden….” Later in that same section, captioned “Authorities to Conduct Covert Action Against Bin Ladin,” it states, “within the Congress, distribution of [–-] was limited to the [Gang of 8]. Congress did nor [sic] receive [–-].” (Available at www.gpoaccess.gov/serialset/creports/pdf/fullreport_errata.pdf, pp. 281, 290.)↩
My questions and the attorney general’s responses appear in the hearing record, “Wartime Executive Power and the National Security Agency’s Surveillance Authority,” hearing before the Senate Judiciary Committee, 109th Congress (2006), pp. 137–138, available at www.access.gpo.gov/congress/senate/pdf/109hrg/27443.pdf.↩
Leslie Cauley, “NSA Has Massive Database of Americans’ Phone Calls,” USA Today, May 11, 2006.↩
Associated Press, “AT&T Says It Can Disclose Account Data on Net, TV Clients,” Chicago Sun-Times, June 22, 2006.↩
“The AT&T and Bellsouth Merger: What Does It Mean for Consumers?” hearing before the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights, 109th Congress (2006), pp. 10–13.↩