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Kennedy on FISA

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Kennedy on FISA

"I regret that the Committee is now moving forward on legislation—when we continue to tip toe around a serious investigation of the Administration's massive electronic surveillance program being conducted by the National Security Agency. Only four Members of the Judiciary Committee sit on the Intelligence Committee. Perhaps they know more, but the rest of us are legislating in the dark.

When it comes to national security, our country is far stronger when all of us stand united. Across party lines, 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. Cooperation between the Administration and Congress is fundamental to our national security, and we should all come together to meet our obligations to protect the safety and security of the United States.

There is a way to fight terrorism within the framework of the Constitution. Thirty years ago, when the Cold War still threatened us, a Republican Administration and a Democratic Congress worked together to enact the Foreign Intelligence Surveillance Act, giving broad authority to the government in cases involving national security.

Then, as now, the debate was driven by public disclosures of widespread surveillance by the National Security Agency. Then, as now, there was discussion over the proper scope of the President's authority.

But then, unlike now, the President decided to work with Congress to obtain clear authority for a wiretapping program. Since the enactment of that law in 1978, the rules have been clear. The conference report states plainly that Congress was setting forth a standard for all future Presidents to follow. It established the "exclusive means" by which, such surveillance could be conducted on U.S. soil.

The law's purpose has always been clear - to put an end to unsupervised wiretapping under the blanket claim of "national security." The Act was also intended to ensure that the Executive Branch - under any President - would not ignore basic civil liberties of the American people by claiming an unchecked "inherent power" to eavesdrop on conversations on U.S. soil.

The Authorization for Use of Military Force passed by Congress after September 11th did not authorize domestic electronic surveillance, and certainly did not authorize domestic electronic surveillance of American citizens without a judicially approved warrant. Congress has never authorized and never approved domestic electronic surveillance of United States citizens without a warrant.

Like the Intelligence Committee, the Judiciary Committee has its own important oversight role. When we began drafting the Foreign Intelligence Surveillance Act in 1976, both Committees held hearings and we had ongoing discussions with the Administration, and the legislation enacted in 1978 has been a success by any standard.

For the past 26 years, the Foreign Intelligence Surveillance Act has provided the "exclusive means" for domestic surveillance by the Administration. Yet the Chairman's bill would repeal the existing statutory scheme - and give the President an unprecedented "blank check." The White House is thumbing its nose at the role of Congress - and ignoring the recent clear rebukes by the Supreme Court.

Section 8 of this proposal states categorically that, "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." This section has only one purpose - to codify the breathtakingly broad and erroneous view of executive power asserted by the Bush Administration and rejected by the Supreme Court. The bill that we have is labeled "Discussion Draft," but the Chairman has already announced that the White House does not want any discussion - much less any changes to this so-called compromise.

This sham proposal allows the President alone to decide whether he will permit a court to review the legality of his electronic surveillance activities. For the first time, these sweeping programs of domestic surveillance would be subject to court review only if the President agrees voluntarily to have a court conduct such a review. The bill also allows the President to authorize entire programs of surveillance - not just applications for individual warrants.

The American Bar Association minces no words. It calls this White House bill an "enormous and unwarranted departure" from existing law! It ignores the requirements of the Fourth Amendment - which require probable cause and individualized suspicion before the government can monitor communications. It even allows the government to transfer any case challenging the legality of its surveillance program to the secret FISA court, where the government can then seek dismissal of the case for any reason. Under this proposal, the President can go to a court that permits only government lawyers to appear before it, and obtain a secret—blanket—endorsement of his surveillance program.

It's obvious our Congressional oversight so far hasn't been effective in guaranteeing that the constitutional checks and balances on executive power are working. All we've received are after-the-fact legal rationalizations for the program. If the Committee stops having hearings and stops carrying out its investigative and oversight functions, then we are abandoning our own oath to protect and defend the Constitution. Instead of fulfilling our long-standing role as a constitutional watch-dog, we become a presidential lap-dog.

Americans deserve national security laws that protect both our security and our constitutional rights. The 9/11 Commissioners got it right. Our goal should be to adopt governmental powers that genuinely enhance our national security while maintaining adequate oversight over their use. If our current national security laws are inadequate, the Administration should work with both Republicans and Democrats Members in Congress to update our laws with due regard for our Constitution, treaties, and the laws of war. The Bush Administration, however, is asking us not only to write legislation - it wants us to override the constitutional checks and balances that are at the core of our democracy, and we should not yield to that arrogant request.

The Administration has made blunder after blunder in waging the war on terrorism. Congress should not aid and abet them in committing another one."

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