Sorry, Ben, We Couldn't Keep It

Statement of Senator Russ Feingold (D-WI) to Senate Judiciary Committee Hearing On the Call to Censure the President:

Where we disagree, apparently, is whether the President’s authority under Article II of the Constitution allows him to authorize warrantless surveillance without complying with FISA. You have said you think this is a close question. I do not believe he has such authority and I don’t think it’s a close question. We will continue to debate that I’m sure. But I think the fact that you have proposed legislation on this program undermines your argument that such presidential authority exists. Because if it does exist, then nothing that we can legislate, no matter how carefully crafted, is worth a hill of beans. For starters, your proposed bill may or may not cover what the NSA is now doing. You and I have no way of knowing because we have not been fully briefed on the program, and I am a member of the Intelligence Committee as well. But regardless, if the President has the inherent authority to authorize whatever surveillance he thinks is necessary, then he surely will ignore your law, just as he has ignored FISA on many occasions.

If Congress doesn’t have the power to define the contours of the President’s Article II powers through legislation, then I have no idea why people are scrambling to draft legislation to authorize what they think the President is doing. If the President’s legal theory, which is shared by some of our witnesses today, is correct, then FISA is a dead letter, all of the supposed protections for civil liberties contained in the reauthorization of the Patriot Act that we just passed are a cruel hoax, and any future legislation we might pass regarding surveillance or national security is a waste of time and a charade. Under this theory, we no longer have a constitutional system consisting of three co-equal branches of government, we have a monarchy.