Statement of Bruce Fein, Deputy Attorney General to Ronald Reagan
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Friday March 31, 2006
Statement of Bruce Fein
Before the Senate Judiciary Committee
Re: S.Res. 398 Relating to the Censure of
George W. Bush
Mr. Chairman and Members of the Committee:
I am grateful for the opportunity to express my support for Senate Resolution 398.
It would censure President George W. Bush for seeking to cripple the Constitution’s
checks and balances and political accountability by secretly authorizing the National
Security Agency to spy on American citizens in the United States in contravention of the
Foreign Intelligence Surveillance Act and misleading the public about the secret
Censure of the President for official misconduct is a species of congressional
oversight of the Executive Branch including the exposure of mismanagement, corruption
or other wrongdoing. Broad congressional oversight jurisdiction was endorsed by the
United States Supreme Court in Watkins v. United States, 354 U.S. 178 (1957).
Congress regularly writes reports harshly critical of official actions at the conclusion of
oversight hearings, for example, the Majority Report of the Iran-contra Joint Committee
on Covert Arms Sales to Iran. Censure seems to me at least a first cousin—a collective
judgment of Congress about the performance of the President regarding the discharge of
official duties, including an obligation to faithfully execute the laws. With regard to S.
Res. 398, it is also a statement to the Supreme Court that Congress disputes President
Bush's interpretation of FISA and inherent Article II powers. If President Harry Truman
could run against a “do nothing “ Congress, I see no reason why Congress cannot
reciprocally run against a "doing wrong" president.
In conjunction with President William Jefferson Clinton’s impeachment, which I
supported, I then held a different view regarding the propriety or legitimacy of censure. I worried that it would enable Congress to engage in character assassination by
condemning a president without an opportunity to present exculpatory evidence, in
contrast to the impeachment process. I am now persuaded that my worry was overbroad.
In this case, the President has been given a full opportunity to dispute the censure
assertions and the Senate record is open to publish any presidential response, the danger
of character assassination is much attenuated. Censure now seems to me a legitimate
expression of Congress about the conduct of the President that contributes to enlightened
public opinion and debate. With regard to my former unsound view, I can cite President
Abraham Lincoln for the proposition that a man who does not grow wiser by the day is a
fool, and Justice Robert H. Jackson who explained a similar recantation with the
observation that he was astonished that a man of his intelligence had been guilty of such
foolishness. See McGrath v. Kristensen, 340 U.S. 162 (1950)(concurring opinion).
Censure should not be employed over every legal disagreement between Congress
and the Executive. A president should not be intimidated from good faith interpretations,
especially where presidential prerogatives are at stake. But the warrantless surveillance
program justifies censure because of the convergence of aggravating factors.
First, President Bush’s intent was to keep the program secret from Congress and
to avoid political or legal accountability indefinitely. Secrecy of that sort makes checks
and balances a farce. Sunshine is the best disinfectant. Popular government without
popular information is impossible. Neither Congress nor the American people can
question or evaluate a program that is entirely unknown. Mr. Bush could have informed
Congress that he was acting outside FISA without disclosing intelligence sources or
methods or otherwise alerting terrorists to the need for evasive action.
Since 1978, FISA has informed the world that the United States spies on its enemies, and disclosing the fact
of the NSA’s warrantless surveillance program would not have added to the enemy’s
knowledge on that score. That explains why the Bush administration continued the
program after The New York Times’ publication.
Second, President Bush’s refusal to disclose the number of Americans that have
been targeted under the surveillance program and the success rate in gathering
intelligence useful in thwarting terrorism from Americans targeted makes a congressional
assessment of its constitutionality or wisdom impossible. Fourth Amendment
reasonableness pivots in part on whether the government is on a fishing expedition
hoping that something will turn up based on statistical probabilities, like breaking and
entering every home in the United States because a handful of emails might be
discovered showing a communication with an Al Qaeda member. Without knowing the
general nature and success of the surveillance program, Congress is handicapped in
fashioning new legislation or undertaking other appropriate responses.
Third, President Bush’s interpretation of the AUMF is preposterous, not simply
wrong. FISA is clearly a constitutional exercise of congressional power both to protect
the Bill of Rights and to regulate the power of the President to gather foreign intelligence
through either electronic surveillance or physical searches during both war and peace.
The necessary and proper clause in Article I authorizes Congress to legislate with regard
to all powers of the United States, not simply those of the legislative branch.
Congress was emphatic that FISA was intended as the exclusive method of
gathering foreign intelligence through electronic surveillance or physical searches. And FISA was enacted when the United States confronted a greater danger to its existence
from Soviet nuclear-tipped missiles than it does today from Al Qaeda.
The argument that the AUMF was intended an exception to FISA is discredited
by the following. Neither any Member of Congress not President Bush even hinted at
such an interpretation in the course of its enactment, including a presidential signing
statement. The interpretation would inescapably mean that the AUMF also was intended
to authorize President Bush to break and enter homes, open mail, torture detainees, or
even open internment camps for American citizens in violation of federal statutes in order
to gather foreign intelligence. To think Congress would have intended to inflict such a
gaping wound on the Bill of Rights by silence is thoroughly implausible. The AUMF
argument was concocted years after its enactment. It does not represent a
contemporaneous interpretation entitled to deference. Further, numerous provisions of
THE PATRIOT ACT would have been superfluous if the AUMF means what President
Bush now says it means. Finally, FISA is a specific statute prohibiting the gathering of
foreign intelligence in both war and peace except within its terms, whereas the AUMF is
silent on the issue of foreign intelligence. The specific customarily trumps the general as
a matter of statutory interpretation. FISA is more definitive against the President than the
failure of Congress to enact legislation in Youngstown because the former tells the
Commander-in-Chief “you cannot act” whereas the latter simply said “we are not
conferring this power to seize private businesses.”
Fourth, President Bush has evaded judicial review of the legality of the NSA’s
warrantless surveillance program by refusing to use its fruits in seeking FISA warrants or
in criminal prosecutions. Pending private suits are problematic because of difficult standing questions. The President’s evasion of the courts makes it proper for Congress to
step into the breach to express its on view on the legality of the spying program.
Fifth, President Bush’s theory of inherent prerogatives under Article II to justify
warping a natural interpretation of the AUMF would reduce Congress to an ink blot in
the permanent conflict with international terrorism. The President could pick and choose
which statutes to obey in gathering foreign intelligence and employing battlefield tactics
on the sidewalks of the United States, akin to exercising a line-item veto over FISA and
Even if President Bush’s official misconduct regarding the NSA’s warrantless
surveillance program would justify censure, the ultimate decision of whether to press
forward is political—a type of prosecutorial discretion. The objective should be to
restore the Constitution’s checks and balances that President Bush has begun to cripple.
If President Bush had shown a serious inclination to collaborate with Congress over joint
approaches to defeating international terrorism and gathering foreign intelligence, then
censure would be counterproductive. But the President has been intransigent. Censure
would not worsen the intransigence, but would facilitate a judgment by the American
people during the next election as to whether they approve or disapprove of President
Bush’s contempt for the rule of law and constitutional limitations. But an even superior
response would be the exercise of the power of the purse to prohibit electronic
surveillance for foreign intelligence purposes outside of FISA, which I have previously
advocated before this Committee.