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Kennedy: Administration Should Honor History, Constitution and Work with Congress on Intelligence

Location: Washington, DC



Washington, DC: Today, Senator Edward M. Kennedy led the NSA domestic surveillance hearings by questioning Attorney General Gonzales on the effectiveness of the program. Senator Kennedy, the principal author of FISA believes our national security is weakened when the country is divided. The country is stronger and safer when we are protecting those intelligence officials working to protect us. Senator Kennedy underscored how willing Congress was and is to give the President the necessary tools to fight the war on terror because the Administration's actions also jeopardize current and future cases brought against suspected terrorists who may challenge the legality of the program.

"Today, there may be disagreement over the strength of the Administration's legal claims. But our successes of the past show that one point is clear: the Administration could have worked constructively with Congress to obtain the tools it needs to make our nation safe, but chose instead to take the riskier course of going it alone."

Kennedy questioned Gonzales on his departure from past practice by circumventing the constitutionally required system of checks and balances. He proved how Congress has historically worked with Republican Presidents, pointing to the documents from the Ford Library detailing Kennedy's unique role, as the principal author of FISA - including 1) Kennedy's statement on the Administration's desire to have support of "key Senators (including Antonin Scalia who was Assistant Attorney General for the Office of Legal Counsel from 1974-1978; 2) support of past Attorney Generals for a close collaboration with Congress on national security laws involving wiretapping and 3) the importance of bipartisanship on matters of national security, highlighted by the Administration's efforts to secure the support of Senator Kennedy.

Experts agree that the Bush administration's defense of its NSA domestic spying program lacks any plausible legal authority. On December 22, 2005, a group of fourteen prominent constitutional experts --- including a former Director of the FBI, a former Deputy Attorney General, a former Acting Solicitor General, two lawyers who worked in the executive branch under President George W. Bush, the Deans or former Deans of Yale, Stanford, and University of Chicago Law Schools, and a prominent conservative scholar and fellow at the Hoover Institution -- wrote to Congress expressing their concerns.

On January 9, 2006, the group released another letter to Congressional leaders. The letter, which was addressed to Congressional leaders, responds to a December 22 Justice Department letter that sought to offer a legal defense of the program. The experts' letter makes three basic points.

First, it rejects the Bush administration's first argument -- that the Authorization to Use Military Force (AUMF) implicitly authorized warrantless domestic wiretapping. The authors note that the AUMF is silent on wiretapping, and that Congress has specifically stated in another statute that the Foreign Intelligence Surveillance Act (FISA) and the criminal code -- both of which require probable cause and a judicial order for wiretaps - are the "exclusive means" for electronic surveillance in the US.

Second, the letter rejects the administration's contention that barring domestic warrantless wiretapping would raise a potential conflict with the President's Article II role as Commander in Chief. To say the President has inherent power to act in the absence of Congressional action, the authors note, does not mean that he has the power to act contrary to express statutory dictates where Congress has acted. Here, Congress and the President together enacted a law, FISA, that specifically addresses the topic, and President Bush is bound to follow that law.

Third, the letter notes that warrantless domestic wiretapping raises serious questions under the Fourth Amendment. The Supreme Court has never upheld domestic wiretapping without probable cause and a warrant. And as FISA demonstrates, a warrant process can accommodate foreign intelligence searches.

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