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Senator Feinstein Opposes More Executive Warrantless Wiretapping

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Updated August 14, 2006
On August 3, 2006, Senator Dianne Feinstein, a member of the Senate Judiciary Committee, delivered this insightful speech, urging the committee to reject S.2353, the National Security Surveillance Act, sponsored by Senator Arlen Specter (R-PA) and strongly supported by the Bush Administration.

"The new (Specter-White House) FISA bill is worse than no bill at all" Senator Feinstein declared. "The new bill would strengthen the President's authority to act outside FISA to permit the President or his designee to wiretap American citizens, enter their homes, or even open personal mail without a warrant."

After Feinstein's bold speech (below), the Senate Judiciary Committee stalled a vote on S.2453, thus disallowing it from proceeding to vote by the full Senate until Fall 2006. .

Senator Feinstein's Statement Opposing S.2453

"Today, we are being asked to vote on a modified and new version of Senator Specter’s FISA bill, S.2453 which is supported by the Bush Administration. Unfortunately, this new bill is worse than no bill at all.

At present, the Foreign Intelligence Surveillance Act plainly states that its provisions must be followed – it is the exclusive means of conducting electronic surveillance for foreign intelligence purposes.

Would Allow President to Ignore FISA

The new bill would strengthen the President’s authority to act outside of FISA, eliminate the longstanding exclusivity of FISA, and replace it with language that would allow the President to exercise unchecked authority.

The new Administration-supported bill says, among other things: 'Nothing in this bill shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.'

And the bill changes FISA to authorize the President to exercise unspecified ‘constitutional’ powers outside of FISA’s statutory limits – not only in FISA’s wiretapping sections, but also in the FISA section discussing physical searches.

Before FISA was passed in 1978, similar language had been proposed by President Ford’s Attorney General. Congress refused to add this language then, and we should refuse to add it today.

The new language broadens the scope of the President’s authority. The effect is that the President or someone he designates in the Executive Branch could claim they are simply exercising his ‘constitutional’ powers as Commander-in-Chief to fight terrorism.

I am concerned that under the new language, the President or his designee could now:

-- Wiretap American citizens without a warrant; and
-- Enter Americans’ homes without a warrant.

Carried to its logical conclusion, one could foresee this broad grant of power being used to justify the authorizing of opening personal mail at will, or even the President ordering assassinations.

Helps President Ignore Congress and the Judiciary

In addition to broadening the scope and expanding Presidential power, the new Specter bill actually strengthens the Executive’s authority to unilaterally act independently of the other branches of government.

In 1952, Justice Jackson issued his famous opinion in Youngstown Steel, identifying the three categories of Executive power:

1. When the President acts consistent with the will of Congress;
2. When the President acts in an area in which Congress has not expressed itself; and
3. When the President acts in contravention of the will of Congress.

In the first of these categories, the President’s power is greatest; in the third, the President’s power is at its lowest.

Currently, the Administration’s activities in contradiction of FISA almost certainly fall within the third Youngstown category – where his claims of constitutional authority are weakest.

The Supreme Court in Hamdan squarely rejected the Administration’s arguments that the Authorization for the Use of Military Force (AUMF) Resolution also authorized unspecified ‘incidents’ of war such as the creation of military commissions. This is the same argument that the President previously made to justify his actions outside of FISA – that even though the AUMF made no mention of electronic surveillance whatsoever, it was an ‘incident’ of war that we had somehow authorized in that Resolution.

Impact of Supreme Court "Hamdan" Decision

Having lost Hamdan, and with its AUMF argument so squarely rejected, the Administration can no longer fairly point to any statute that gives it authority to act outside of FISA.

But now, if Congress adopts the Specter bill, the Administration can argue that its actions fall within the first category of the Youngstown analysis. I am concerned the language changes the law so that Congress would be authorizing the President to exercise discretion and power outside of FISA – and therefore any actions the Administration takes outside of FISA are allowable and taken with Congress’ approval.

This would fundamentally shift the balance in the Court’s constitutional analysis.

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