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California Senator Dianne Feinstein (D) on the Senate floor today:
I rise today as a 12-year member of the Senate Judiciary Committee and a 5-year member of the Senate Intelligence Committee. I do so indeed with a very heavy heart. I have had, until now, great confidence in America's intelligence activities. I have assured people time and time again that what happens at home has always been conducted in accordance with the law.
I played a role in the PATRIOT Act. I moved one of the critical amendments having to do with the wall and the FISA court. Today's allegations as written in the New York Times really question whether this is in fact true. I read it with a heavy heart, yet without knowing the full story.
[...]
Section 105 (f) of FISA allows for emergency applications where time is of the essence. But even in these cases, a judge makes the final decision as to whether someone inside the United States of America, a citizen or a non-citizen, is going to have their communications wiretapped or intercepted. The New York Times reports that in 2004, over 1,700 warrants for this kind of wiretapping activity were approved by the FISA Court. The fact of the matter is, FISA can grant emergency approval for wiretaps within hours and even minutes, if necessary.
[...]
I would argue the resolution authorizing use of force [vs. those involved in 9/11 attacks] was not a declaration of war. I read it this morning carefully. It does not authorize the President of the United States to do anything other than use force. It doesn't say he can wiretap people in the United States of America. And apparently, perhaps with some change, but apparently this activity has been going on unbeknownst to most of us in this body and in the other body now since 2002.
The newspaper, the New York Times, states that the President unilaterally decided to ignore this law and ordered subordinates to monitor communications outside of this legal authority.
In the absence of authority under FISA, Americans up till this point have been confident -- and we have assured them -- that such surveillance was prohibited.
This is made explicit in chapter 119 of title 18 of the criminal code which makes it a crime for any person without authorization to intentionally intercept any wire, oral, or electronic communication.
As a member of the Senate Judiciary and Intelligence Committees, I have been repeatedly assured by this administration that their efforts to combat terrorism were being conducted within the law, specifically within the parameters of the Foreign Intelligence Surveillance Act which, as I have just read, makes no exception other than 15 days following a declaration of war.
We have changed aspects of that law at the request of the administration in the USA PATRIOT Act to allow for a more aggressive but still lawful defense against terror. So there have been amendments. But if this article is accurate, it calls into question the integrity and credibility of our Nation's commitment to the rule of law.
I refreshed myself this morning on the fourth amendment to the Bill of Rights of the Constitution of the United States.
Here is what it says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Clearly an intercept, a wiretap, is a search. It is a common interpretation. A wiretap is a search. You are looking for something. It is a search. It falls under the fourth amendment.
[...]
There is a procedure, and it is timely.
As a matter of fact, we got into this rather seriously in the Judiciary Committee. At the time we wrote the PATRIOT Act, I offered an amendment to change what is called "the wall" between domestic intelligence-gathering agencies and foreign intelligence-gathering agencies from a “primary purpose” for the collection of foreign intelligence to a “significant purpose.” We had a major discussion in the committee, as is the American way. We were making public policy. We discussed what primary purpose meant. We discussed in legal terms what significant purpose meant.
So this was a conscious loosening of a standard in the FISA law to permit the communication of one element of Government with the other and transfer foreign intelligence information from one element of the Government to the other.
That is the way this is done, by law. We are a government of law. The Congress was never asked to give the President the kind of unilateral authority that appears to have been exercised.
I was heartened when Senator Specter also said that he believed that if the New York Times report is true -- and the fact that they have withheld the story for a year leads me to believe it is true, and I have heard no denunciation of it by the administration -- then it is inappropriate, it is a violation of the law.
How can I go out, how can any Member of this body go out, and say that under the PATRIOT Act we protect the rights of American citizens if, in fact, the President is not going to be bound by the law, which is the FISA court?
And there are no exceptions to the FISA court.
So Senator Specter, this morning, as the chairman of the Judiciary Committee, announced that he would hold hearings on this matter the first thing next year. I truly believe this is the most significant thing I have heard in my 12 years. I am so proud of this Government because we are governed by the rule of law, and so few countries can really claim that. I am so proud that nobody can be picked up in the middle of the night and thrown into jail without due process, and that they have due process. That is what makes us different. That is why our Government is so special, and that is why this Constitution is so special.
That is why the fourth amendment was added to the Bill of Rights -- to state clearly that searches and seizures must be carried out under the parameter of law, not on the direction of a President unilaterally.
So I believe the door has been opened to a very major investigation and set of circumstances. I think people who know me in this body know I am not led toward hyperbole, but I cannot stress what happened when I read this story. And everything I hold dear about this country, everything I pledge my allegiance to in that flag, is this kind of protection as provided by the Constitution of the United States and the laws we labor to discuss, argue, debate, enact, then pressure the other body to pass, and then urge the President to sign. That is our process.
If the President wanted this authority, he should have come to the Intelligence Committee for an amendment to FISA, and he did not.
The fact that this has been going on since 2002 -- it is now the end of 2005. Maybe 8 people in these 2 bodies in some way, shape, or form may have known something about it, but the rest of us on the Intelligence Committees did not.
That is simply unacceptable.
Posted by Ryan Singel at December 16, 2005 02:39 PM
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Tracked on December 17, 2005 09:26 AM