"The President Does Not Have a Blank Check on Matters of National Security"
Statement by Senator Edward M. Kennedy at Oversight Hearing with Attorney General Gonzales
"When it comes to national security, our country is far stronger when the government stands united. We all agree on the need for law enforcement and intelligence officers to have strong powers to investigate terrorism, to prevent future attacks, and improve information-sharing between federal, state and local law enforcement. This is not a question of party or politics. It is a question of national security, and we should all come together to meet our obligations and protect the safety and security of the United States.
Americans deserve national security laws that protect both our security and our constitutional rights, and we have not yet achieved the goal set by the 9/11 Commissioners: to adopt governmental powers that truly enhance our national security while ensuring adequate oversight over their use.
For the past five years, Congress has stood ready to work with the President to give him the necessary tools to protect America. In fact, the Congress has worked with the President on the PATRIOT Act and many other important measures to strengthen our national security laws. However, through a rampant series of leaks, we find out that this Administration has pursued many secret programs and pursued a solitary path that rides roughshod over the historic legal standards that have made this country great.
Other than President Bush and Vice President Cheney, no person has been more central to the policies of the Bush Administrationand their dubious legal justificationsthan you, Mr. Attorney General. Your name has been linked with a litany of troubling acts: implementing warrantless surveillance outside the scope of the law, endorsing legal opinions stretching the limit for our country's treatment of detainees, and creating a legal limbo for detainees at Guantanamo Bay.
On issue after issue, you have endorsed expediency over the rule of law. You advocated a breathtakingly expansive view of Presidential power, purporting to put the Executive Branch above the law.
You've been at the center of a torture policy that has predictably run amok, contradicting the values and cherished principles that Americans hold so dear.
From the beginning, you adopted an absurdly narrow definition of torture in order to permit extreme interrogation practices. You signed off on interpretations of law that would allow any interrogation technique that stopped short of organ failure or death.
You ignored the plain language of the Geneva Conventions in an attempt to immunize those who may commit war crimes. The Supreme Court has rebuked the Administration's treatment of detainees. Yet, it still remains an open question whether the Administration will continue to push a discredited interpretation of our treaty obligations to permit the C.I.A. to commit cruel, inhuman and degrading acts outside the United States.
A very troubling characteristic of the way these policies have been formulated is that people who should have been involved in the process have been shut out. From Colin Powell, to career military lawyers and experts in the Departments of Justice or State, we have heard repeatedly that the normal process was not followed and voices that should have been heard during the internal debate were not consulted or - worseignored. Similarly, the Administration has consistently sought to avoid congressional oversight of its policies. The result - quite predictably - has been bad law and bad policy.
In an interview last summer, you told the Academy of Achievement that the hardest part of his job is saying "no" to the President and others in the Administration. You said, "to be an effective lawyer you have to say no there are limits to what can be done, even for the Attorney General and even for a president." Given the Administration's policies, it is alarming to imagine which - if any policies you have said "no" to. We know now that you didn't say "no" when the President chose to ignore well-established laws for domestic surveillance.
Since 1978, Congress has never authorized nor approved domestic electronic surveillance of United States citizens without a warrant. The conference report makes clear that Congress was setting forth a standard for President Ford - and all future Presidents to follow. The law's purpose has always been clear - to put an end to any wiretapping under the blanket claim of "national security." Congress also made clear that the Foreign Intelligence Surveillance Act established the "exclusive means by which such surveillance may be conducted."
The Act was also intended to ensure that the Executive Branch - under any President - did not ignore basic civil liberties of the American people by utilizing an unchecked "inherent power" to eavesdrop on U.S. soil. After September 11th, the Authorization for Use of Military Force passed by Congress did not authorize domestic electronic surveillance, and certainly not domestic electronic surveillance of American citizens, without a judicially approved warrant.
At a minimum, the Committee should be able to know the details of the surveillance programs the President authorized more than 30 times since the September 11th attacks. On January 27th, every Democratic Senator on this Committee requested documents from the Attorney General to support the legal justifications for the program before he testified. We received no response.
The Administration refuses even to give us an inventory of all the relevant documents - much less a legitimate reason for rejecting our document request. There is no rational purpose in denying Congressional access to the legal thought and analysis relied on by the Administration to develop, create and maintain these surveillance activities.
The President does not have a blank check on matters of national security. Yet, over the past five years, the Administration has taken us down a dangerous path, violating the well-established checks and balances of the Constitution. In Hamdan v. Rumsfeld, the Supreme Court said the President had gone too far. As Justice Stevens noted, "the Executive is bound to comply with the Rule of Law."
If our current national security laws are not adequate, the Administration should work with both Republican and Democratic Members of Congress to update our laws with due regard for the Constitution, treaties, and the laws of war. Today, and going forward, we will see whether the Administration is ready to get back on track and work with Congress on the urgent priorities facing our country today."