Washington, DC – Senate Democratic Leader Harry Reid released the following statement today on the Bush administration’s continued attempt to excuse a potentially unlawful domestic spying program:
“After announcing that they would launch an all-out campaign-style push to defend the legality of its domestic spying program, the Bush Administration now seems content to rely on revisionist history. Independent analysts and Senators of both parties know that the Congress never authorized the president to spy on Americans without a warrant. I know Republicans want to play politics with national security instead of having an honest debate about who can keep Americans safe. It’s because this is a debate Republicans cannot win. Democrats know that keeping Americans safe means more than talking tough.
“We take a backseat to no one in fighting terrorism. If the president wanted to expand the authority he already has to wiretap anyone who might be communicating with terrorists then he should have come to the Congress to get that authority. The president needs to explain why his current authority was not good enough.”
Revisionist History 101
Since reports of the National Security Agency’s domestic surveillance program became public, the President and his Administration have asserted that the Authorization For Use of Military Force (AUMF, P.L. 107-40)–passed after 9/11–gave the President the legal authority to order this program. They have also repeatedly asserted that Congress knew about and approved of the spying program. However, Members of Congress protested about the insufficient briefings at the time, and a review of what the Administration and the Congress said when AUMF was authorized–and what a nonpartisan organization says now–shows that the AUMF argument is false.
Revisionism on Congressional Briefings
Today, Attorney General Alberto Gonzales said that Congress knew the scope of the spying program: “As far as I’m concerned, we have briefed the Congress,” he said. “They’re aware of the scope of the program.” [CNN, 1/24/06]
· Only 8 of the 535 members of Congress received briefings on this program.
· The Vice Chairman of the Intelligence Committee protested at the time of the secret briefings that they did not have enough information to make responsible decisions about the legality or effectiveness of the program. See the private letter that Senator Rockefeller wrote to Vice President Cheney protesting the program in July of 2003, here.
· Senator Bob Graham, former Chairman of the Intelligence Committee, said of the briefings: “There was no reference made to the fact that we were going to…begin unwarranted, illegal — and I think unconstitutional — eavesdropping on American citizens.” [Nightline, 12/16/05]
· Furthermore, the nonpartisan Congressional Research Service says that the Bush Administration’s limited briefings to Congress were “inconsistent with the law.” [New York Times, 1/19/06]
Revisionism on the AUMF
Today, Attorney General Alberto Gonzales again invoked the AUMF to justify the spying program. “The President’s authority to take military action, including the use of communications intelligence, targeted at the enemy does not come merely from his inherent constitutional powers, it comes directly from Congress as well. Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution the authorization for use of military force, Congress did two important things. First, it expressly recognizes the President’s authority under the Constitution to take action to deter and prevent acts of international terrorism against the united states. This is a recognition by Congress. Second, it supplemented that authority by authorizing the President to, quote, use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks in order to prevent further attacks on the United States. The resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress.” [1/24/06]
THEN: White House Press Secretary Ari Fleischer Said President Bush Did Not Have “Carte Blanche” to Respond to Terrorist Attacks
Q: Ari, as to the meeting with the leaders of Congress today, did the president come out of that thinking he has carte blanche in response, et cetera?
MR. FLEISCHER: No, the president does not think that. The president is going to continue to consult; the president is going to continue to lead. But the president understands that at all times it’s important to work with Congress, but it’s particularly important now to consult with the Congress. One of the greatest strengths of our country is that we are a Constitution-based democracy. Our Constitution and our nation have survived acts of terror and attacks on our nation before. And the president knows that the strength of our nation comes from that Constitution, which gives an important role to Congress, and he will continue to consult closely with Congress and its leaders. [White House Press Briefing, 9/12/01]
THEN: Senators Made it Clear During Debate of the Resolution that AUMF was Not Intended to Give the President Open-Ended Authority to Conduct the War on Terror
Senator Levin: “This joint resolution is based upon and is an exercise of the Congress’ constitutional war powers role as codified in the War Powers Resolution. It also expressly confirms the conditions on the exercise of Executive power under that resolution. In that regard, I want to note that the statement in the last “Whereas” clause relating to the constitutional authority of the President to take action to deter and prevent acts of international terrorism against the United States is to be read in conjunction with the War Powers Resolution. That is why words in earlier drafts of this joint resolution, which might have been interpreted to grant a broader authority to use military force, were deleted and that is why the references to the War Powers Resolution were added. It does not recognize any greater presidential authority than is recognized by the War Powers Resolution nor does it grant any new authority to the President.” [Congressional Record, 9/14/01]
Senator Biden: “I think what we are doing and the Nation is doing is the right thing. Most important, what we did today should be noted is not likely to occur in any other country in the world, and that is, that we just a few moments ago operated under the rule of law. In all our anger, all our frustration, all our feelings, very bluntly, of hatred that exists now for those who perpetrated the act against us, we did not pell-mell just say: Go do anything, anytime, anyplace, Mr. President; you have to just go. We operated as our Founders, who were not naive people, intended us to operate. We operated under the rule of law…In extending this broad authority to cover those “planning, authorizing, committing, or aiding the attacks” it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism. The authority granted is focused on those responsible for the attacks of September 11.” [Congressional Record, 9/14/01]
Senator Kohl: “Part of what we are fighting to protect, is the Constitution and the role of Congress in a crisis. This resolution faithfully and responsibly executes our duty under the Constitution. We have not ceded our power to the President, Congress remains a co-equal branch and a partner with the President in this struggle.” [9/14/01]
Senator Feingold: “Congress owns the war power. But by this resolution, Congress loans it to the President in this emergency. In so doing, we demonstrate our respect and confidence in both our Commander in Chief and our Constitution…by this resolution, Congress vouchsafes the legitimacy of a struggle that must have the continuing approval of the representatives of the people. It is the framework for a continuing consensus and communicates support to our President in this emergency. We acknowledge that this legitimate emergency permits the President to act unilaterally without turning our back on who wields the war power under the Constitution, and we trust that if he does, he will turn to Congress to legitimize his actions as appropriate.” [9/14/01]
Senator Snowe: “This resolution, consistent with the War Powers Resolution, is precisely the right course for the Congress to take at this momentous juncture in American history.” [Congressional Record, 9/14/01]
NOW: Nonpartisan Report Refutes President Bush’s Claim that AUMF Gives Him the Legal Authority to Conduct Warrantless Surveillance and the Former Senate Democratic Leader Contradicts the Administration
A January 5, 2006 analysis by the nonpartisan Congressional Research Service found that “[F]rom the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion…the Supreme Court has stated that Congress does indeed have the power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seemto be as well-grounded as the tenor of that letter suggests.” [Congressional Research Service, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," 1/5/06]
Former Democratic Leader, Tom Daschle, says that the Senate never intended to authorize domestic spying. “As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also 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.” [Washington Post, 12/23/05]