FISA created a secret court, made up of judges who develop national security expertise, to issue warrants for surveillance of suspected terrorists and spies. These are the judges from whom the Bush Administration has obtained thousands of warrants since 9/11. They are the judges who review applications for business records orders and wiretapping authority under the Patriot Act.
The Administration has almost never had a warrant request rejected by those judges. It has used the FISA Court thousands of times, but at the same time it asserts that FISA is an "old law" or "out of date" in this age of terrorism and can't be complied with. Clearly, the Administration can and does comply with it, except when it doesn't. Then it just arbitrarily decides to go around these judges, and around the law.
The Administration has said that it ignored FISA because it takes too long to get a warrant under that law. But we know that in an emergency, where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits the wiretap to be executed immediately as long as the government goes to the court within 72 hours.
The Attorney General has complained that the emergency provision does not give him enough flexibility, he has complained that getting a FISA application together or getting the necessary approvals takes too long. But the problems he has cited are bureaucratic barriers that the executive branch put in place, and could remove if it wanted.
FISA also permits the Attorney General to authorize unlimited warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA required by a wartime emergency. That is the time period that Congress specified. Yet the President thinks that he can do this indefinitely.
The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001. Mr. President, that is ridiculous. Members of Congress did not pass this resolution to give the President blanket authority to order warrantless wiretaps. We all know that. Anyone in this body who would tell you otherwise either wasn't here at the time or isn't telling the truth. We authorized the President to use military force in Afghanistan, a necessary and justified response to September 11.
We did not authorize him to wiretap American citizens on American soil without going through the process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of terrorists, with the approval of a judge. That is why both Republicans and Democrats have questioned this theory.
This particular claim is further undermined by congressional approval of the Patriot Act just a few weeks after we passed the Authorization for the Use of Military Force. The Patriot Act made it easier for law enforcement to conduct surveillance on suspected terrorists and spies, while maintaining FISA's baseline requirement of judicial approval for wiretaps of Americans in the U.S.
It is ridiculous to think that Congress would have negotiated and enacted all the changes to FISA in the Patriot Act if it thought it had just authorized the President to ignore FISA in the AUMF.
In addition, in the intelligence authorization bill passed in December 2001, we extended the emergency authority in FISA, at the Administration's request, from 24 to 72 hours. Why do that if the President has the power to ignore FISA? That makes no sense at all.
The President has also said that his inherent executive power gives him the power to approve this program. But here the President is acting in direct violation of a criminal statute. That means his power is, as Justice Jackson said in the steel seizure cases half a century ago, "at its lowest ebb." A letter from a group of law professors and former executive branch officials points out that "every time the Supreme Court has confronted a statute limiting the Commander-in-Chief's authority, it has upheld the statute."
