Leahy On Friday Introduces Resolution
Underscoring That Congress Did Not Authorize
Illegal Spying On Americans

[WASHINGTON, Friday, Jan. 20] – Senator Patrick Leahy, D-Vt., on Friday introduced a resolution setting the record straight that Congress did not authorize President Bush’s illegal spying program when it passed a 2001 resolution governing the use of military force in the war on terror. 

Leahy, the ranking Democratic member of the Judiciary Committee and a co-author of the original USA PATRIOT Act, offered the resolution to clarify recent misleading claims by the Bush Administration that the Authorization for Use of Military Force resolution approved shortly after the Sept. 11, 2001, terror attacks provided the President with the necessary authorization to conduct warrantless eavesdropping on Americans. 

“Now that the illegal spying of Americans has become public and the President has acknowledged the four-year-old program, the Bush Administration’s lawyers are contending that Congress authorized it.  The September 2001 Authorization to Use Military Force did no such thing,” Leahy said. 

Below is Leahy’s statement on the resolution. 

PDF of Resolution

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Statement Of Senator Patrick Leahy,
Ranking Member, Judiciary Committee
Introduction Of Resolution
Regarding The Authorization For Use Of Military Force
January 20, 2006

Mr. LEAHY.  Mr. President, today I am introducing this resolution expressing the sense of the Senate that the Authorization for Use of Military Force, which Congress passed to authorize military action against those responsible for the attacks on September 11, 2001, did not authorize warrantless eavesdropping on American citizens.

As Justice O’Connor underscored recently, even war “is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Now that the illegal spying of Americans has become public and the President has acknowledged the four-year-old program, the Bush Administration’s lawyers are contending that Congress authorized it.  The September 2001 Authorization to Use Military Force did no such thing.  Republican Senators also know it and a few have said so publicly.  We all know it.  The liberties and rights that define us as Americans and the system of checks and balances that serve to preserve them should not be sacrificed to threats of terrorism or to the expanding power of the Government.  In the days immediately following those attacks, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.

I well remember the days immediately after the 9/11 attacks.  I helped open the Senate to business the next day.  I said then, on September 12, 2001:

“If we abandon our democracy to battle them, they win. . . . We will maintain our democracy, and with justice, we will use our strength.  We will not lose our commitment to the rule of law, no matter how much the provocation, because that rule of law has protected us throughout the centuries.  It has created our democracy.  It has made us what we are in history.  We are a just and good Nation.”

I joined with others, Republican and Democrats, and we engaged in round-the-clock efforts over the next months in connection with what came to be the USA PATRIOT Act.  During those days the Bush Administration never asked us for this surveillance authority or to amend the Foreign Intelligence Surveillance Act to accommodate such a program. 

Just as we cannot allow ourselves to be lulled into a sense of false comfort when it comes to our national security, we cannot allow ourselves to be lulled into a blind trust regarding our freedoms and rights.  The Framers built checks and balances into our system specifically to counter such abuses and undue assertions of power.  We must remain vigilant on all fronts or we stand to lose these rights forever.  Once lost or eroded, liberty is difficult if not impossible to restore.  The Bush Administration’s after-the-fact claims about the breadth of the Authorization to Use Military Force -- as recently as this week, in a document prepared at the White House’s behest by the Department of Justice -- are the latest in a long line of manipulations of the law.  We have also seen this type of overreaching in that same Justice Department office’s twisted interpretation of the torture statute, an analysis that had to be withdrawn; with the detention of suspects without charges and denial of access to counsel; and with the misapplication of the material witness statute as a sort of general preventive detention law.  Such abuses serve to harm our national security as well as our civil liberties. 

In addition, the press reports that the Pentagon maintains secret databases containing information on a wide cross-section of ordinary Americans, and that the FBI is monitoring law-abiding citizens in the exercise of their First Amendment freedoms.  When I worked with Senator Wyden and others in 2003 to stop Admiral Poindexter’s Total Information Awareness program, an effort designed to datamine information on Americans – and we meant it.  And when I added a reporting requirement on Carnivore, the FBI’s email monitoring program, to the Department of Justice Authorizations law in 2002, we meant it.  We demanded that Congress be kept informed and that any such program not proceed without congressional authorization. 

The New York Times reported that after September 11, 2001, when former Attorney General John Ashcroft loosened restrictions on the FBI to permit it to monitor Web sites, mosques, and other public entities, “the FBI has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.”  When I learned of such efforts and that they reportedly included monitoring Quakers in Florida and possibly Vermont, I wrote to the Secretary of Defense demanding an answer.  That was a month ago.  So far he has refused to provide that answer.

Now we have learned that President Bush has, for more than four years, secretly allowed the warrantless wiretapping of Americans inside the United States.  And we read in the press that sources at the FBI say that much of what was forwarded to them to investigate was worthless and led to dead ends.  That is a dangerous diversion of our investigative resources away from those who pose real threats, while precious time and effort is devoted to looking into the lives of law-abiding Americans.

The United States Supreme Court has consistently held for nearly 40 years, since its landmark decision in Katz v. United States, that the monitoring and recording of private conversations constitutes a “search and seizure” within the meaning of the Fourth Amendment.  Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) to provide a legal mechanism for the government to engage in electronic surveillance of Americans in connection with intelligence gathering.  The Foreign Intelligence Surveillance Act, along with the criminal wiretap authority in title 18 of the United States Code, together provide the exclusive means by which the Government may intercept domestic electronic communications pursuant to the rule of law. 

The Foreign Intelligence Surveillance Act has been amended over time, and it has been adjusted several times since the 9/11 attacks.  Indeed, much of the PATRIOT Act was devoted to modifying FISA to make it easier to obtain FISA warrants.  But the PATRIOT Act did not amend FISA to give the Government the authority to conduct warrantless surveillance of American citizens.  

If the Bush Administration believed that the law was inadequate to deal with the threat of terrorism within our boundaries, it should have come to Congress and sought to change the law.  It did not.  Indeed, Attorney General Gonzales admitted at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that “it was not something we could likely get.” 

I chaired the Senate Judiciary Committee in 2001 and 2002, when the President’s secret eavesdropping program apparently began.  I was not informed of the program.  I learned about it for the first time in the press last month.  I thank heaven and the Constitution that we still have a free press.

The Bush Administration is now arguing that when Congress authorized the use of force in September 2001 to attack al Qaeda in Afghanistan, it authorized warrantless searches and eavesdropping on American citizens.  I voted for that authorization, and I know that Congress did not sign a blank check.    The notion that Congress authorized warrantless surveillance in the AUMF is utterly inconsistent with the Attorney General’s admission that Congress was not asked for such authorization because it was assumed that Congress would say no.

Former Senate Majority Leader Tom Daschle, who helped negotiate the use of force resolution with the White House, has confirmed that the subject of warrantless wiretaps of American citizens never came up, that he did not and never would have supported giving authority to the President for such wiretaps, and that he is “confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.” 

Senator Daschle also noted that the Bush Administration sought to add language to the resolution that would have explicitly authorized the use of force “in the United States,” but Congress refused to grant the President such sweeping power.  Maybe that was this Administration’s covert way to seek the authority to spy on Americans, but Congress did not grant any such authority.

Spying on Americans without first obtaining the requisite warrants is illegal, unnecessary and wrong.  No President can simply declare when he wishes to follow the law and when he chooses not to, especially when it comes to the hard-won rights of the American people. 

The resolution I introduce today is intended to help set the record straight.  It is an important first step toward restoring checks and balances between the co-equal branches of Government.  I urge all Senators to support it.  I ask consent that the Resolution be included in the Record following my statement.

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