U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–341 PDF 2006

S. HRG. 109–524

AN EXAMINATION OF THE CALL TO CENSURE

THE PRESIDENT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 31, 2006

Serial No. J–109–66

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 13

prepared statement .......................................................................................... 73

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 6

prepared statement .......................................................................................... 88

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina ......... 12

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 8

prepared statement .......................................................................................... 93

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 96

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 10

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 2

WITNESSES 

Casey, Lee A., Baker and Hostetler, Washington, D.C. ....................................... 19

Dean, John W., III, former White House Counsel, Beverly Hills, California ..... 21

Fein, Bruce, Fein and Fein, Washington, D.C. ..................................................... 17

Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois ........................ 22

Turner, Robert F., Associate Director, Center for National Security Law, 

University of Virginia, Charlottesville, Virginia ............................................... 15

SUBMISSIONS FOR THE RECORD 

Boston Herald, March 15, 2006, Boston, Massachusetts, editorial ..................... 55

Calabresi, Steven G., George C. Dix Professor of Constitutional Law, Northwestern University, Chicago, Illinois, prepared statement .............................. 56

Casey, Lee A., Baker and Hostetler, Washington, D.C., prepared statement .... 62

Chicago Tribune, March 20, 2006, Chicago, Illinois, editorial ............................. 72

Dean, John W., III, former White House Counsel, Beverly Hills, California, 

prepared statement .............................................................................................. 74

Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement .................. 82

Fulton County Daily Report, October 13, 1998, Atlanta, Georgia, editorial ....... 90

New York Times, March 17, 2006, New York, New York, editorial .................... 98

San Diego Union-Tribune, March 16, 2006, San Diego, California, editorial ..... 99

Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois, prepared 

statement and attachment .................................................................................. 100

Sunstein, Cass R., University of Chicago Law School, Chicago, Illinois, letter . 104

Turner, Robert F., Associate Director, Center for National Security Law, 

University of Virginia, Charlottesville, Virginia, prepared statement ............ 107

University of Richmond Law Review Association, March 1999, Richmond, 

Virginia, essay ...................................................................................................... 123

(1)

AN EXAMINATION OF THE CALL TO CENSURE 

THE PRESIDENT 

FRIDAY, MARCH 31, 2006

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:32 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Sessions, Graham, Cornyn, 

Leahy, Kohl, and Feingold. 

Chairman SPECTER. Good morning, ladies and gentlemen. It is 

9:30. We will proceed with Senator Feingold’s resolution to censure 

the President. 

First, let me wish happy birthday to Senator Leahy. 

Senator LEAHY. Thank you very much, Mr. Chairman. At a little 

after six this morning, Marcelle and I were down at the Tidal 

Basin taking pictures, walking around. But I wanted to get back 

especially because a classmate of mine from Georgetown, Mr. Dean, 

is here. But it was beautiful down there. A lot of people asked for 

you. 

Chairman SPECTER. Excuse me, but why are you changing the 

subject from your birthday? 

Senator LEAHY. Because 66 is older. But it was gorgeous down 

there. I realize you want to get to the hearing, but I talked to all 

of the pages yesterday, those wonderful young men and women 

who serve us all on the Senate floor, and I urged them all to go 

down along the Tidal Basin because this is something they will remember the rest of their lives. 

With that, Mr. Chairman, I will hush and let you run your hearing. 

Chairman SPECTER. Well, Senator Leahy, we do wish you a 

happy birthday. You have made the disclosure voluntarily that you 

are 66, and you have a lot to show for it. You are in your 32nd year 

in the U.S. Senate. Before that, you had an important job. You 

were district attorney of Burlington, Vermont. 

Pat and I have known each other since D.A. days back in the late 

1960s. 

Senator LEAHY. We have, indeed. 

Chairman SPECTER. You have had a very distinguished record 

here, and it has been a very satisfying experience to work with you 

as Ranking for the past 14 months and I think we have a fair 

amount to show for that, too. 

2

Senator LEAHY. Thank you. You are a dear friend, Mr. Chairman, and I appreciate it. Thank you. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. This is a very important hearing for several 

reasons. First of all, it will examine in some depth—in fact, in substantial depth, the scope of the President’s wartime power under 

Article II of the Constitution. Second, it will examine the interrelationship of Congressional power under Article I, and also the 

courts’ power under Article III, the interrelationship and the famous opinion by Justice Jackson in the steel seizure case about the 

strength of Presidential authority when backed up by the Congress 

and the weakness of Presidential authority when not backed by the 

Congress. 

Although the President has extensive authority under Article I, 

the Congress has extensive authority in the premises under Article 

II. The point of the tradition of judicial review before the issuance 

of warrants for surveillance or search and seizure comes into play 

in this matter. 

On the merits, I have already expressed myself on the floor of 

the United States Senate. Some would say that the resolution by 

Senator Feingold to censure the President is frivolous. I am not 

prepared to say that, but I do think that there is no merit in it, 

but it provides a forum for the discussion of issues which really 

ought to be considered in greater depth than they have been. 

This is the fourth hearing that this Committee has had on this 

issue in March. That is a lot of hearings by the Judiciary Committee when we have to wrestle with confirmations and immigration. As we speak, immigration is on the floor, although not much 

will happen today because—well, we won’t go into that. 

We had the Attorney General, we had a panel of experts, we had 

former judges of the Foreign Intelligence Surveillance Court in a 

rather remarkable hearing, in my opinion. It wasn’t easy for them 

to come forward and speak on this subject, but they did so out of 

a deep sense of patriotism and out of a deep sense of judicial responsibility to comment about warrantless searches and our effort 

to find some way to reconcile the issues of Presidential authority 

to protect this country, which is vital, from the terrorists with the 

rights of civil liberties. Those are big, big issues. 

I thought they would attract more attention. One of the major 

newspapers carried an extensive story. Another major newspaper 

said nothing about it at all. Other papers gave it very scant coverage. But when those judges come forward and testify as to what 

the Foreign Intelligence Surveillance Court does and how there is 

an avenue for judicial review, recognizing the President’s authority 

and recognizing the problem of leaks from the Congress, like there 

are leaks from the White House—it is a pretty even-stephen matter 

when it comes to leaks in this town, but the court doesn’t leak and 

the Foreign Intelligence Surveillance Court could provide the judicial review which would be so important here. 

I begin in some detail because of its importance with the scope 

of the President’s power under Article II. In 1972, in the Keith 

case, the Supreme Court took up the issue of warrantless domestic 

3

surveillance and specifically left open the issue of the Presidential 

authority for foreign intelligence gathering without warrants. 

The Court of Appeals for the Fourth Circuit in 1980, in the case 

of United States v. Truong, made some very cogent statements on 

the policy underlying this issue. The Fourth Circuit said this: ‘‘The 

needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic intelligence, that a uniform 

warrant requirement would unduly frustrate the President in carrying out his foreign affairs responsibility. First of all, attempts to 

counter foreign threats to the national security require the utmost 

stealth, speed and secrecy. A warrant requirement would add a 

procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives.’’ 

The court went on to say, ‘‘The executive possesses’’—my staff 

underlined it in blue, so it is hard to read. ‘‘The executive possesses 

unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. The executive branch, containing the State Department, the intelligence agencies and the 

military, is constantly aware of the Nation’s security needs and the 

magnitude of external threats posed by a panoply of foreign nations 

and organizations.’’ 

One of the most impressive statements in this area was a memo 

which President Roosevelt gave to his Attorney General on May 21, 

1940, which said, quote, ‘‘You are therefore authorized and directed 

in such cases as you may approve, after investigating the need in 

each case, to authorize the necessary investigation agents that are 

at liberty to secure information by listening devices directed to the 

conversations or other communications of persons suspected of subversive activities against the Government of the United States. You 

are requested, furthermore, to limit these investigations so conducted to a minimum and to limit them insofar as possible.’’ A 

pretty forceful statement by a well-respected President in a time of 

national emergency. We weren’t at war yet, but World War II was 

in process. 

Then the Foreign Intelligence Court of Review said in In Re 

Sealed—referring to the fact that two other circuits besides the 

Fourth Circuit have upheld warrantless searches by the President 

under Article II, the Foreign Intelligence Court of Review said, ‘‘All 

other courts to have decided the issue have held that the President 

did have inherent authority to conduct warrantless searches to obtain foreign intelligence. FISA could not encroach on the President’s constitutional power,’’ close quote. 

Of course, a statute cannot limit constitutional authority. The 

Constitution trumps a statute, but that is not the end of the process. The evaluation of whether the President is authorized under 

Article II to conduct the surveillance in issue is something we don’t 

know because we don’t know what the surveillance in issue is. So 

it is an open question. 

I believe that there is a need for a lot more public consideration 

and public concern about this issue than we have had, and that is 

why this Committee has had four hearings and this Committee intends to pursue it. It is true that if we pass a statute over the 

4

President’s veto, which I suppose he would, the legislation which 

I have proposed to give the FISA court authority to review the program—he might ignore that, but he didn’t ignore the 89-to–9 vote 

on the torture issue and we may find a political solution to this 

issue. Some progress has been made with the Intelligence Committee subcommittee. 

But I feel very strongly about the issue and I believe that the 

question of judicial review is rockbed Americana. I want to be sure 

the President has the authority he needs to protect America, but 

that is up to the court to decide. 

I am going to yield now to the distinguished Ranking Member 

and then I am going to yield to Senator Feingold, if he cares to 

make an opening statement. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. I do agree we 

can do laws, but we are almost like Hotspur in calling them from 

the depths. Will the President follow the law? You spoke of the law 

on torture, a great deal of fanfare, signing ceremony and all, and 

then we found out afterwards, of course, the President wrote on the 

side that he did not intend to have it apply to people he didn’t want 

it to apply to. In other words, you may have passed a heavy torture 

law, but I don’t intend to follow it. 

This is the fourth hearing to consider the President’s domestic 

spying activities. Mr. Chairman, you are to be commended for actually holding hearings, which is something not happening in the Republican-controlled Congress. After this hearing, we will have 

heard from a total of 20 witnesses, but out of those witnesses only 

one witness—only one—had any knowledge of the spying activities 

beyond what they witnessed and read in the newspapers. That witness was Attorney General Gonzales, who flatly refused to tell us 

anything beyond, quote, ‘‘those facts the President has publicly confirmed, nothing more,’’ close quote. 

Time after time, Attorney General Gonzales, who knew about the 

program, when he was asked questions said I am not going to answer. So to this date, we have not had a hearing where somebody 

actually has come forward and said here is what happened. 

What the President has publicly confirmed is that for more than 

4 years, he has secretly instructed intelligence officers at the National Security Administration to eavesdrop on the conversations of 

American citizens in the United States without following the procedures set forth in the Foreign Intelligence Surveillance Act. 

After its secret domestic spying activities were revealed, the administration offered two legal justifications for its decision not to 

follow the law, not to follow FISA. First, the administration asserted a broad doctrine of Presidential inherent authority to ignore 

the laws passed by Congress in prosecuting the war on terror. In 

other words, they say the rule of law is suspended and this President is above the law for the uncertain and no doubt lengthy duration of the undefined war on terror. 

Second, the administration asserted that in the authorization for 

the use of military force, which makes incidentally no reference to 

wiretapping—this was the authorization that said go get Osama 

5

bin Laden. We all agreed with that. Unfortunately, the administration gave up on that attempt and decided to go into Iraq instead, 

and so Osama bin Laden is still loose. There was no reference to 

wiretapping. 

The administration claims now that Congress unconsciously authorized warrantless wiretaps that FISA expressly forbids even in 

wartime. This is ‘‘Alice in Wonderland’’ gone amok. It is not what 

we in Congress said and it certainly was not what we in Congress 

intended. 

Because of the exception I have already noted, because the Republican-controlled Congress has not conducted real oversight, and 

because the attempts that this Committee had made on oversight 

have been stonewalled by the administration, we don’t know the 

extent of the administration’s domestic spying activities. But we 

know that the administration has secretly spied on Americans 

without attempting to comply with FISA, and we know that the 

legal justifications it has offered for doing so, which have admittedly evolved over time, are patently flimsy. 

I therefore have no hesitation in condemning the President for 

secretly and systematically violating the laws of the United States 

of America. I have no doubt that such a conclusion will be history’s 

verdict. History will evaluate how diligently the Republican-controlled Congress performed the oversight duties envisioned by the 

Founders. As of this moment, history’s judgment of the diligence 

and resolve of the Republican-controlled Congress is unlikely to be 

kind. 

Our witnesses today will address whether censure is an appropriate sanction for these violations. I am inclined to believe that it 

is. If oversight were to reveal that when the President launched 

this illegal program he had been formally advised by the Department of Justice it would be lawful, that kind of bad advice would 

not make his actions lawful, but at least might provide the color 

of an excuse. 

If, on the other hand, he knowingly chose to flout the law and 

then commissioned a spurious legal rationalization years after he 

was found out, then he should bear full responsibility. To quote 

Senator Lindsey Graham from an earlier point in his Congressional 

service when he bore the weighty role of a House manager in a 

Presidential impeachment trial, ‘‘We are not a nation of men or 

kings, we are a nation of laws.’’ 

I have said before that this Committee needs to say any formal 

legal opinions from this administration that address the legality of 

NSA practices and procedures with respect to electronic surveillance. The American people have a right to know whether or not 

their President knowingly chose to flout the law when he instructed the NSA to spy on the American people. That is why our 

next step should be to subpoena the opinions. We know the President broke the law. Now, we need to know why. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Senator Feingold. 

6

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Mr. Chairman, first, thank you for scheduling 

this hearing and for giving me the opportunity to make an opening 

statement. I know you recognize that this is a serious issue, and 

I thank you for treating it as such. 

I want to wish the Ranking Member a happy birthday, especially 

after that eloquent and powerful statement of where we are at this 

point. 

[Applause.] 

Chairman SPECTER. We are not going to have any applause or 

any demonstrations or any expressions from anybody in the hearing room. This is a serious matter and it is a matter for the Senators to speak to, and the witnesses, and no showing from the audience. 

Senator FEINGOLD. Mr. Chairman, I assume that was for the 

Senator’s birthday, the applause. But, Mr. Chairman, thank you. 

Chairman SPECTER. It is as good as your other assumptions, Senator Feingold. 

[Laughter.] 

Senator FEINGOLD. Fair enough. 

I want to welcome and thank our witnesses, some of whom—Mr. 

Fein and Professor Turner—were with us just a few weeks ago, 

and one of whom, Mr. Dean, last appeared before a congressional 

committee in 1974, as so many of us remember. I am grateful for 

your participation, particularly given the short notice that you were 

given of the hearing. 

There is a time-honored way for matters to be considered in the 

Senate. Bills and resolutions are introduced. They are analyzed in 

the relevant Committee through hearings. They are debated and 

amended and voted on in committee, and then they are debated on 

the floor. We have now started that process on this very important 

matter and I look forward to seeing it through to a conclusion. 

Obviously, I believe the proposal for censure has substantial 

merit, and I am pleased that we now have the issue of accountability of the President here back to the foreground. In fact, Mr. 

Chairman, I waited three months after attending the Judiciary 

Committee hearings, the Intelligence Committee hearings—I also 

serve on the Intelligence Committee—before I came to the conclusion that censure would be an appropriate step in this matter. I 

was very deliberate in my thinking about that. 

Mr. Chairman, I have looked closely at the statements you have 

made about the NSA program since the story broke in December. 

We have a disagreement about some things, but I am pleased to 

say we are in agreement on several others. We agree that the NSA 

program is inconsistent with FISA. We agree that the authorization for use of military force did not grant the President authority 

to engage in warrantless wiretapping of Americans on U.S. soil. We 

agree that the President was and remains required under the National Security Act of 1947 to inform the full intelligence committees of the NSA program which, of course, the President has refused to do. 

Mr. Chairman, I think it is not irrelevant or insignificant with 

regard to the merits of censure that such bogus arguments have 

7

been advanced in favor of this program. 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 this is a close question. 

I do not believe he has such authority and I don’t think it is a close 

question. We will continue to debate that, I am sure. 

But I think the very fact that you have proposed legislation on 

this program tends to undermine your argument that such Presidential authority exists, because if it does exist, then nothing that 

we can legislate, nothing, 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. I am also, as I said, 

a member of the Intelligence Committee, where I didn’t get to learn 

about the details there either. 

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, 

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 coequal branches of Government. We have a monarchy. 

We can fight terrorism without breaking the law. The rule of law 

is central to who we are as a people, and the President must return 

to the law. He must acknowledge and be held accountable for his 

illegal actions, and also for misleading the American people both 

before and after the program was revealed. If we in the Congress 

don’t stand up for ourselves and for the American people, we become complicit in the law-breaking. A resolution of censure is the 

appropriate response, even a modest approach. 

Mr. Chairman, the presence of John Dean here today should remind us that we must respond to this constitutional crisis based 

on principle, not partisanship. How we respond to the President’s 

actions will become part of our history. A little over 30 years ago, 

a President who broke the law was held to account by a bipartisan 

Congressional investigation and by patriots like Archibald Cox and 

Elliot Richardson and, yes, John Dean, who put loyalty to the Constitution and the rule of law above the interests of the President 

who appointed them. None of us here can predict how history will 

view this current episode, but I do hope that 30 years from now 

this Senate will not be seen to have backed down in the face of 

such a grave challenge to our constitutional system. 

Mr. Chairman, I look forward to hearing from our witnesses, and 

I again do appreciate the opportunity to make an opening statement. 

8

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Chairman SPECTER. Senator Hatch has requested some time for 

an opening statement and you may proceed. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. Let me just say 

I am one of two sitting Senators that I know of who has had the 

privilege of sitting twice on the Intelligence Committee. I might 

also add that I am one of the seven bipartisan members of the committee on the subcommittee who have been chosen to review the 

warrantless surveillance program, and we have been doing that. 

I will just add that I believe the President was not only within 

his inherent powers to do this—I think there are some people 

around here who don’t believe there are any inherent powers in the 

executive branch. I believe there are, and I think that history and 

case law shows that there are. 

I personally find that the President did much more. He certainly 

did not break the law. He had to reauthorize this program every 

45 days. They informed the FISA chief judge. They informed the 

FISA chief judge’s replacement. They informed eight leaders of 

Congress—the two leaders in the House and the Senate and the 

vice chairmen and chairmen of the intelligence committees. 

I strongly oppose Senate Resolution 398, the resolution purporting to censure President Bush during the foreign intelligence 

surveillance program. Now, let me just briefly mention three reasons for my opposition. 

First, I do not believe that the Constitution authorizes the Senate to punish the President through a mechanism other than impeachment. Make no mistake, censure is punishment, and this censure resolution aims to punish the President. Senator Feingold has 

repeatedly stated his belief that the President has broken the law 

and must be held accountable. This is done by punishment. 

The last time a Senator introduced a resolution to censure a 

President was in 1999, directly on the heels of the Senate voting 

to acquit President Clinton on the charges for which he had been 

impeached by the House. It was offered as a form of punishment 

because censure is punishment. 

I do not believe that the fundamental principle of the separation 

of powers and our written Constitution built on that principle authorize the Senate to punish the President, other than by means 

of impeachment. In 1800, the first time either House considered a 

resolution to denounce a President’s actions, Representative William Craik, of Maryland, argued that the House had the power of 

impeachment, but not censure. The resolution failed. 

Many claim historical precedent for punishing the President 

through censure in the resolution introduced by Senator Henry 

Clay—I have got a copy of that—passed on March 28, 1834. That 

resolution addressed President Andrew Jackson’s actions regarding 

the Bank of the United States. I have that resolution right here, 

copied from the original journal of the Senate. It is one sentence 

long. It states the Senate’s opinion that President Jackson, quote, 

9

‘‘has assumed upon himself authority and power not conferred by 

the Constitution and laws, but in derogation of both.’’ 

I know that nearly everyone refers to this as a censure resolution, but it says nothing of the kind. This resolution, unlike the one 

before us today, never uses the words ‘‘censure’’ or ‘‘condemn.’’ It 

expresses the Senate’s opinion about the President’s action, but 

does not even purport to punish the President. Three years later, 

the Senate voted to reverse itself and to expunge this resolution 

from the record. 

The official U.S. Senate website describes this 1834 resolution 

and while it does, I think, mistakenly refer to this as a censure resolution, our own Senate website states unequivocally that this resolution was, quote, ‘‘totally without constitutional authorization,’’ 

unquote. I have that page right here in my hand, printed directly 

from the Senate website, stating that the 1834 resolution was totally without constitutional authorization. 

Now, if a resolution not even purporting to punish or censure the 

President is without constitutional authorization, how can one 

which would explicitly punish the President by censuring him and 

condemning his actions have constitutional authorization? 

There are other constitutional objections to such an effort to punish the President through censure. I ask unanimous consent to submit for the record an article by Victor Williams, law professor at 

the University of Tampa, arguing that the attempt to censure 

President Clinton was unconstitutional. 

Is that OK, Mr. Chairman? 

Chairman SPECTER. So ordered. 

Senator HATCH. Mr. Chairman, even if this serious constitutional 

concern did not exist or can somehow be waved aside, my second 

concern is with the content of this censure resolution. The statements offered to support the conclusion of censure are not established facts at all, but at best highly debatable propositions, and 

some of the statements made here today are highly debatable. 

This resolution states as fact propositions about which there is 

very real and very public debate. These include the legal basis 

President Bush has claimed for his foreign intelligence surveillance 

program, including the extent of his inherent constitutional authority and the effect of Joint Senate Resolution 38, the authorization 

for use of military force. 

The resolution asserts that a statute, the Foreign Intelligence 

Surveillance Act, trumps the President’s inherent constitutional 

authority as commander in chief. In addition, this resolution makes 

very serious claims about President Bush’s personal motives and 

even his integrity. It claims that President Bush actually misled 

the public, that he made false implications and inaccurate statements even in his State of the Union Address. 

Now, Senator Feingold, of course, is free to believe these things 

about the President and to state his belief publicly. He has spoken 

to that end on the Senate floor. But this constitutionally suspect 

effort to punish the President by censure rests on premises which 

are at best highly debatable and, at worst, misleading or even 

false. 

Finally, Mr. Chairman, even if concerns about this resolution’s 

constitutional legitimacy and content can be avoided, I remain very 

10

concerned about its timing and effect. The United States is at war. 

Our President has taken considered and measured steps that I believe are consistent with the law. I can only hope that this constitutionally suspect and, I believe, inflammatory attempt to punish the 

President for leading this war on terror will not weaken his ability 

to do so. 

When the Senate turned aside the 1999 censure resolution directed at President Clinton, our colleague and later Attorney General John Ashcroft made a point which captures my concern about 

the resolution before us today. Senator Ashcroft was certainly a 

strong critic of President Clinton. He voted to convict and remove 

President Clinton from office. Yet, he said, ‘‘The Constitution recognizes that if a President cannot be removed through impeachment, 

he should not be weakened by censure,’’ unquote. I agree. 

Partisanship may be at a fever pitch around here these days, but 

wartime is not a time to take steps that may weaken the commander in chief, especially since there are many arguments that I 

think are valid arguments that are made on behalf of what the 

President has done. To discuss this and to work on it and to work 

as the distinguished Chairman has done in trying to come up with 

statutory language that any President may want to follow, I think, 

is a noble effort and we ought to all consider it on that basis and 

quit trying to score political points. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Chairman SPECTER. Thank you, Senator Hatch. 

Would any other member of the Committee care to make an 

opening statement? 

Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Well, I would like the opportunity, Mr. Chairman. 

The national spasm over the NSA wiretaps has had its run and 

I would have thought it would be at rest by now. This is now the 

fourth hearing we have had on the subject. The President has 

clearly stated his legal basis for what he thought justified his actions and he acted only after DOD lawyers and other lawyers had 

reviewed and approved the program. He has demonstrated that he 

has kept the responsible leaders of the House and Senate informed 

on the NSA system that has been operating. 

Twelve to fifteen of our National leaders of the Congress were informed on this matter, including Tom Daschle, Harry Reid, Nancy 

Pelosi, and others. Not one of them objected. Some say Senator 

Rockefeller objected, but he simply wrote a letter that did two 

things. First, the letter said that he was well aware of the program, as were all of the members who were briefed, and that he 

did not ask for any more briefings or consultations or explanations 

from the professionals or lawyers, and he did not ask that the program be stopped. 

After 9/11, we knew we had been attacked by sleeper cell terrorists. We did not know how many more such sleeper cells were in 

our country and what other targets they had in mind. No one 

11

knew. We knew one thing. We knew we did not know about this 

attack that killed almost 3,000 Americans. It was a surprise. We 

concluded we needed more and better intelligence, and we had a 

national discussion of that. 

The NSA intercept program, however it works technically, without doubt has the capability to help us locate persons that could 

identify other sleeper cells that may exist in our Nation, cells who 

may be capable of inflicting the most grievous wounds on our country. And that remains true to this day. 

All of this has been openly discussed, and discussed in even more 

detail in the appropriate intelligence committees. There is no serious contention that the program should stop as the facts have been 

better understood, such as the fact that the calls involved are international calls. Concern in the Congress and of our people has drastically abated from the hysteria after the first announcement in a 

most serious breach of security that revealed the nature of this 

critical program. 

So I would suggest we had better spend our time investigating 

how top secret programs such as this, a program fully shared with 

congressional leaders, was breached and provided to the media and 

revealed throughout the world. 

I just returned from my fourth trip to Iraq. We met many soldiers there who are at risk this very day trying to protect America, 

and they fight everyday to help the people of Iraq create a safe and 

decent government against attacks by the same terrorists who attacked us. Not one of those soldiers asked that I should censure the 

President, nor did they ask that House and Senate leaders, bipartisan leaders who had the program explained to them in detail, and 

its operation updated to them on many occasions, be censured. 

Why not censure the congressional leaders? We have power to 

censure them. That is constitutional. Why don’t we send them to 

the Ethics Committee? The answer is they did nothing wrong. The 

President did nothing wrong. They did nothing worthy of censure. 

As Senator Hatch said, it is just not an appropriate discipline of 

the President by the United States Congress. 

So I submit the congressional leaders and the President did the 

right thing, the lawful thing to protect our country and the people, 

as they are sworn to do. Our President is an honest man. He is a 

candid man, a direct man, a strong leader, and the people of America know it. 

So this hearing, I think, is beyond the pale. This notion of censure is irresponsible. It is irresponsible because it is not well-founded in the Constitution, as Senator Hatch has demonstrated, and it 

has the potential to send abroad throughout the terrorist community and to those who are watching our resolve around the world, 

a very perverse and false message. It could suggest that the man 

who was elected President by a substantial majority might be unable to carry out the policy of our country, or that opposing political 

forces might block his ability to effectively wage the war on terrorism, both of which are false, both of which make the job of our 

soldiers and diplomats harder and place them at greater risk. 

It is time for some in this Congress to get over it. We have established a national policy against terrorism. We have committed the 

lives and fortunes of our soldiers to that effort. We can and we 

12

must be successful. Even if one disagrees with the decisions that 

have been made, they have been made and are being executed by 

the finest military and State Department personnel our Nation has 

to offer. Let’s not play games with their lives. 

The President is leading in a time of war, so are the congressional leaders. This motion for censure is clearly inappropriate and 

I dissent, if anyone would doubt otherwise. 

Chairman SPECTER. Any other Senator care to make an opening 

statement? 

Senator Graham.

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR 

FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. I thought he was on the fence there until the 

end. Thank you, Senator. 

Thank you, Mr. Chairman, for, one, holding this hearing. You 

know, this is a democracy. You just throw it out in the open and 

you talk about it. As to Senator Feingold, I would like to amend 

my previous statements. I have known him a long time and I do 

respect him and he does call it as he sees it, and we just disagree 

here. 

I was involved in impeachment. I am probably not the best guy 

to talk about it. I am 0 for 1, and that is the way it works. But 

I know how stressful it was back then. I know what the Senate 

went through. I wasn’t a member of the Senate. I know what you 

all went through over here. It was very difficult, and being part of 

the House team, I know it was difficult there. 

I openly talked about censure as sort of a middle ground when 

it came to impeachment. It just didn’t quite go anywhere, but I 

thought that was appropriate, and everyone had their say about 

impeachment. I remember very much Senator Feingold being one 

of the more open-minded people about it. 

The difference here is we just see it differently, and that is why 

we need to have this hearing. The idea of censuring the President 

for surveiling the enemy after notifying Congress, to me, is way beyond what would be appropriate and would have the effect of killing the program. I think that would be a very big mistake for our 

country to kill this program because it is, in my opinion, necessary 

in the war on terror to find out what the enemy is up to. And this 

seems to be a reasonable way to find out what they are doing as 

long as the program has constitutional checks and balances, and I 

am a big believer that it can survive with those constitutional 

checks and balances. 

Senator Feingold sees this as an obvious violation of the law by 

the President deserving rebuke. I do not see it that way at all. I 

see it as a confusing, uncertain area of the law that deserves 

thought and collaboration. The Hamdi case, I believe is the name 

of the case, where Justice O’Connor argued that the use of force 

resolution would allow the detention of an enemy combatant because the Congress, by authorizing force to be used against Afghanistan, justified the ability of the President to hold somebody that 

was caught in that way as an express authorization by the Congress. 

13

The other argument that is on the table, Mr. Chairman, is the 

inherent authority of the President. His enumerated powers under 

Article II would give him as commander in chief the inherent authority to do things necessary to wage war. Well, one of those 

things necessary is to follow the enemy. I don’t think anyone 

doubts that part of fighting a war is to do surveillance and monitoring of enemy movements and enemy activity. 

The problem is that you have got a preexisting FISA statute that 

says when an American citizen may be involve here in the United 

States with foreign intelligence activities, FISA becomes the exclusive remedy. You have a court of appeals case that says FISA is 

a peacetime statute. Once you are in a shooting war environment, 

we don’t know if FISA has the same application. Those are really 

tough issues. 

The Chairman has an approach on how to get this balance. I 

have got an approach. I think the approach the Chairman has 

taken and I have taken is constructive. I think censure is destructive. I think censure breaks us apart at a time we need to be 

brought together. 

Here is what I would like us to rally around: the need for the 

program is real, the legal authority for the program is enhanced if 

it is between the executive and legislative. If we could get on the 

same sheet of music, this program is stronger, not weaker. 

I agree with Senator Sessions. I think the President is an honest 

man and very committed to his way of doing business and he 

should be a strong commander in chief. Here is where I disagree: 

I believe, instead of using the inherent authority argument, the administration would be well served to reach out to the Congress and 

see if we can’t—and if we fail, we fail—come up with a program 

the Congress could statutorily sanction, because I think we are 

stronger legally and militarily when we act in concert with each 

other. 

So my two cents worth to the body is let’s try to find out some 

solution to this real problem that will make us stronger as a Nation, and I don’t believe censure takes us in that direction. I believe 

collaboration will, and with that said, Mr. Chairman, I look forward to the debate. 

Chairman SPECTER. Thank you, Senator Graham. 

Senator Cornyn, you indicated an interest in making an opening 

statement. You may proceed. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you very much, Mr. Chairman. Mr. 

Chairman, you have a reputation, well deserved, of being scrupulously fair and independent, and I come to this hearing with 

some sense of ambivalence. One, I agree with some of the sentiments expressed that if a Senator feels strongly enough about a 

matter that they file something of this nature, we ought to look at 

it and we ought to talk about it. 

I say that at the same time that I feel that this motion for censure is completely without merit, and it is, I think, somewhat indicative of the meritlessness of the motion that Senator Feingold’s moVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
14

tion has been cosponsored by only two members of his political 

party and everyone else seems to have run for cover. 

But here we are, and I think the American people would be also 

justified in thinking that the atmosphere in Washington, D.C. is 

surreal when it comes to the global war on terror and how we conduct our business and how we spend our time. 

While there were those who initially expressed some doubt as to 

the legality of the President’s actions and his authority, you have 

conducted a number of different hearings, including with some 

judges who serve on the FISA court. The Chairman has noted a 

number of circuit court opinions which have reached the same conclusion that many of those judges did, and that is that the President’s authority is not exclusively derived by a statutory grant 

from Congress under the Foreign Intelligence Surveillance Act. 

That would be a rather strange proposition to argue that indeed 

one branch of the Government is somehow limited in its authority 

by a grant of authority from another branch when, in fact, each derive their powers by the Constitution itself. 

No one has suggested, to my knowledge, that this program be 

stopped. Senator Sessions mentioned that a number of people have 

been briefed on this program. I agree it should not be stopped. It 

is saving American lives and it is allowing us to fight and win the 

global war on terror. And it would be ironic indeed if Congress 

were to pass an authorization for the use of military force and say 

that we ought to locate, capture, detain and even kill the enemy, 

but we can’t listen to their telephone calls that come from overseas 

to the United States. That, I think, contributes to the surreal atmosphere. 

I guess, you know, when I was looking this morning at one of the 

witnesses that is going to be testifying that is selling a book and 

that is a convicted felon, it strikes me as very odd that the Judiciary Committee is giving some audience and opportunity to somebody under those circumstances as part of their marketing efforts. 

We have had a lot of very serious witnesses who have expressed 

their opinion about the law, and this is a Committee full of lawyers 

and we can all have different views of the law and that doesn’t surprise anybody who is a lawyer. But I think I have tried to explain 

why I come to this hearing with some sense of ambivalence, and 

I believe that the American people would view what we are about 

here as part of the surreal atmosphere that they believe, and sometimes correctly so, is completely out of touch with the rest of the 

United States. 

Thank you. 

Chairman SPECTER. Thank you, Senator Cornyn. 

For the record, it ought to be noted that Senator Feingold was 

given the opportunity to name witnesses. He chose to bring two, 

and the individual you referred to was his selection and my judgment was that he should be accorded that standing. And if someone cared to make the comment about the credibility or background, as you have, that would be appropriate too. Let it all hang 

out. 

We now turn to our panel of witnesses. Our first witness is Professor Robert Turner, a professor in the University of Virginia’s 

Woodrow Wilson Department of Government and Foreign Affairs, 

15

author or editor of a dozen books on international or constitutional 

law. He was counsel to the President’s Intelligence Oversight Board 

from 1981 to 1983; a bachelor’s degree from Indiana and a law degree from the University of Virginia. 

Thank you very much for joining us this morning, Professor 

Turner, and we look forward to your testimony. 

STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR, 

CENTER FOR NATIONAL SECURITY LAW, UNIVERSITY OF 

VIRGINIA, CHARLOTTESVILLE, VIRGINIA 

Mr. TURNER. Thank you, Mr. Chairman. It is a pleasure to be 

here. I have a short statement which I would propose to submit for 

the record at this time— 

Chairman SPECTER. Without objection, your statement will be 

made a part of the record. 

Mr. TURNER [continuing]. That relies heavily upon the longer 

statement I gave on February 28th in the hearing which gives the 

footnotes, and so forth, that will support it. 

Briefly summarized, Senator Feingold’s Senate Resolution 398 

seeks to censure the wrong lawbreaker. The President did not 

break the law. Every wartime President, even every wartime leader going back to George Washington when he authorized the opening of British mail coming into the United States during the American Revolution, has done this kind of behavior. It is essential to 

the successful conduct of war. Congress, in the wake of Vietnam, 

broke the law, not a statute, but the Constitution, in going after 

the President’s control of foreign intelligence. That was one of 

many acts that usurped Presidential power. 

As I documented in my testimony last month, the Founding Fathers knew that Congress could not keep secrets, and thus they 

gave the general management of the Nation’s foreign intercourse, 

especially foreign intelligence-gathering, to the President. 

In 1776, Benjamin Franklin and his unanimous Committee of Secret Correspondence decided they could not tell the Continental 

Congress about a secret, covert operation because, and I quote, ‘‘We 

find by fatal experience that Congress consists of too many members to keep secrets.’’ In explaining the new Constitution to the 

American people during the ratification debate in 1788, John Jay, 

who became our first Chief Justice, praised the Constitution in 

Federalist No. 64 for having left the President, and again I quote, 

‘‘able to manage the business of intelligence as prudence might suggest.’’ 

The constitutional basis of this important grant of power is found 

not just in the Commander in Chief Clause, but more importantly 

in Article II, section 1, which grants to the President the executive 

power of the Nation. Having been raised on the writings of Locke, 

Montesquieu and Blackstone, the Framers shared their belief that 

the Nation’s external relations were part of the executive power, 

and this was embraced very clearly by the major players of the era. 

In my earlier testimony, I gave examples with footnotes to statements by, among others, President George Washington, who was 

also President of the Constitutional Convention; Representative 

James Madison, often called the Father of the Constitution; Secretary of State Thomas Jefferson; Treasury Secretary Alexander 

16

Hamilton, like Madison an author of the Federalist Papers; Chief 

Justice John Jay, the third Federalist Papers contributor; Representative John Marshall, later Chief Justice. 

Thus, the leaders of both political parties of the era and all three 

authors of the Federalist Papers agreed that the executive power 

grant gave the President the general management of the Nation’s 

foreign affairs. The National Security Act of 1949 made no provision for congressional oversight. There are references to it here. 

They really ought to say ‘‘as amended,’’ because in 1949 Congress 

in writing this saw no need, saw no propriety for congressional 

oversight of intelligence activities. 

The 1968 Crime Control and Safe Streets Act recognized that the 

President had independent constitutional authority for national security foreign intelligence wiretaps and expressly excluded them 

from its coverage. When FISA was first enacted in 1978, former appeals court judge Griffin Bell, then Jimmy Carter’s Attorney General, told the Committee that FISA could not take away the President’s independent power to collect foreign intelligence. 

The FISA Court of Review that Congress set up in 1978 noted 

in 2002 that every Federal court that has considered this issue has 

found the President has independent constitutional authority to do 

this. And the court went on to say, ‘‘We assume that is true, and 

if it is true, that power cannot be taken away by FISA.’’ 

In Marbury v. Madison, perhaps the most famous of all Supreme 

Court cases, Chief Justice John Marshall noted that the President 

is given certain important political powers under the Constitution 

which are to be used at his discretion. And he noted, and I quote, 

‘‘Whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no 

power to control that discretion.’’ Neither the courts nor the Congress can tell the President how to govern the collection of foreign 

intelligence during wartime. 

Indeed, President Bush is not above the law, but in our country 

we have a hierarchy of laws in which the Constitution is supreme. 

Because of that, John Marshall noted in Marbury v. Madison, and 

again I quote, ‘‘An act of the legislature repugnant to the Constitution is void.’’ 

My conclusion is the President has broken no constitutional law, 

but Congress in the wake of Vietnam broke many, with terrible 

consequences. I strongly recommend that the Committee rewrite 

the resolution to censure the post-Vietnam Congress which violated 

its oath of office of its members, undermined our security and contributed directly to the consignment to communist tyranny in Indochina of tens of millions of people we had promised to defend and 

to the slaughter of millions of others. 

I think the President’s actions are also justified under the 

AUMF, but I don’t have time for that. I will be happy to take it 

up in questions. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Turner appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Turner. 

We now turn to Mr. Bruce Fein, of the consulting firm of Fein 

and Fein. His experience in Government was as research director 

for the Joint Congressional Committee on Covert Arms Sales to 

17

Iran, general counsel to the FCC under President Reagan, and assistant director of the Department of Justice’s Office of Legal Policy 

from 1980 to 1983. He is a graduate of the University of California 

for a bachelor’s degree and Harvard Law School, cum laude. 

Thank you for joining us today, Mr. Fein, and the floor is yours. 

STATEMENT OF BRUCE FEIN, FEIN AND FEIN, WASHINGTON, 

D.C. 

Mr. FEIN. Thank you, Mr. Chairman. I would like my complete 

statement submitted for the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record, as will all the statements submitted to the Committee. 

Mr. FEIN. On September 17, 1787, Dr. Benjamin Franklin 

emerged from the Constitutional Convention which had fashioned 

the document that has lived ever since as a testament to what free 

minds can do in crafting democratic dispensations. He was approached by an elderly lady and asked, Dr. Franklin, what have we 

got, a monarchy or a republic? And he retorted, a republic, if we 

can keep it. 

Now, there are two features of the current crisis with President 

Bush’s assertion of inherent constitutional authority that I think 

are unprecedented. No. 1, these are wartime powers that have no 

ending point. There is no benchmark to suggest the time when the 

war against international terrorism will conclude, and therefore 

the President’s assertions of powers have to be taken as permanent 

changes on the political landscape on checks and balances. 

The second feature relates to the scope of the battlefield. The 

President has said that since Osama bin Laden and al Qaeda have 

threatened to kill any American, anytime, anyplace, anywhere, 

then all of the world is a battlefield, justifying battlefield tactics. 

There is no difference in the President’s authority to shoot on the 

streets of Kandahar, Kabul or Baghdad as opposed to the street 

outside of Domino’s Pizza. 

These are the kinds of extravagant claims I suggest that require 

a very close attention to the legal theories that have been advanced 

to justify the warrantless surveillance program in secret for over 

four-and-a-half years. You can lose a republic on the installment 

plan every bit as efficiently as at one fell swoop with a coup d’etat. 

The censure of the President for official misconduct, for alleging 

failing to faithfully execute the laws, seems to me no different than 

a species of congressional oversight of an executive program that 

concludes with a report harshly critical of the President or his subordinates, something similar to the majority report that culminated 

the hearings into the Iran-contra affair. If Harry Truman can run 

on a do-nothing-Congress platform, I see no reason why Congress 

cannot run on a wrongdoing-President platform. 

Now, of course, every dispute between Congress and the Executive over legal interpretation should not occasion censure. The 

President should not be intimidated from making assertions of authority that he in good faith thinks are legitimate. But it seems to 

me there is a convergence of several factors that make his claim 

regarding the legality of the warrantless surveillance program 

something that justifies censure. 

18

First, President Bush’s intent was to keep the program secret 

from Congress forever. The New York Times published the program. He has now got a grand jury investigating whether it violated the Espionage Act, but his hope was to escape political and 

legal accountability forever, if he could do so. 

As history teaches, sunshine is the best disinfectant. Even Presidents with good motives regularly overreach. The Church Committee hearings exposed 20 years of illegal mail-openings by the 

CIA and FBI, 20 years of illegal intercepts of international telegrams, years of the misuse of the National Security Agency for 

international criminal purposes rather than foreign intelligence 

purposes. All these abuses occurred because there was no sunshine. 

This was all concealed from Congress. That aggravates, I think, the 

President’s conduct in this situation. 

Now, it is said that the President could not alert Congress without exposing intelligence sources and methods, alerting the enemy 

to means of evasion that would frustrate the war against international terrorism that we all want to win. That seems to me clearly a specious argument. If the President informed Congress in the 

aftermath of 9/11 that he was undertaking a program of surveillance outside of FISA and he wanted Congress to know that and 

to consider it, that information by itself does not disclose intelligence sources. It does not disclose intelligence methods and it 

would not for the first time alert al Qaeda that we are trying to 

spy on them. They had known that at least since 1978 and they 

are not slower learners. 

Second, President Bush’s secrecy regarding the program makes 

it impossible to evaluate its reasonableness under the Fourth 

Amendment. One of the touchstones of that provision is whether or 

not the Government is engaged in a fishing expedition just hoping 

something will turn up or whether or not the Government is employing reasonably particularized standards for targeting searches 

and seizures that actually have the likelihood of turning something 

up that is useful. 

The fact is, Mr. Chairman and members of the Committee, no 

one knows what the success rate is of these warrantless surveillance programs targeting American citizens on American soil. Nobody knows the number of Americans targeted. Nobody knows 

whether the targeting has revealed anything useful. Nobody knows 

exactly why it is that the Americans were targeted. There may be 

good reasons, but you are foreclosed from making an intelligent assessment of Fourth Amendment reasonableness when all of this is 

like a black hole. 

Third, President Bush’s interpretation of the authorization to use 

military force, I suggest, is not just wrong, but preposterous. Not 

a single member of the Congress— 

Chairman SPECTER. Mr. Fein, you are a minute over. Could you 

summarize at this point, please? 

Mr. FEIN. Yes. I would suggest that no one in Congress contemplated that interpretation, and for the executive branch to come 

up with that theory four-and-a-half years after the fact smacks of 

a surprise O. Henry ending. 

The last observation I would make, Mr. Chairman, is that checks 

and balances are at the heart of our system of liberty. It is what 

19

you might call the procedural equivalent of the Bill of Rights, and 

that is why it is so important to leave them undisturbed before we 

have a second 9/11, before new stresses may cause the program to 

expand even further. 

Thank you. 

[The prepared statement of Mr. Fein appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Fein. 

We now turn to Mr. Lee Casey, partner at the law firm of Baker 

and Hostetler here in Washington. He specializes in issues of the 

Constitution, election, and international and regulatory law. He 

served in the Department of Justice’s Office of Legal Counsel from 

1992 to 1993, and the Office of Legal Policy from 1986 to 1990. He 

serves as adjunct professor of law at George Mason University. 

Thank you for coming in today, Mr. Casey, and the floor is yours. 

STATEMENT OF LEE A. CASEY, BAKER AND HOSTETLER, 

WASHINGTON, D.C. 

Mr. CASEY. Thank you, Mr. Chairman. Unlike my colleagues, 

this is the first time I have ever testified before this Committee 

and I do want to say that I consider it an honor to have been 

asked. 

Let me begin by saying that censuring President Bush over the 

NSA program would be a severe miscarriage of justice. When he 

authorized the NSA to intercept al Qaeda communications into and 

out of the United States, the President was fully within his constitutional and statutory authority. He did not break the law and 

there is no evidence that he has in any way misused the information collected. This is not Watergate. 

The President’s critics have variously described the NSA program as widespread, domestic and illegal. It is none of these 

things. It is targeted on the international communications of individuals engaged in an armed conflict with the United States and 

it is fully consistent with FISA. 

In assessing the President’s actions here, it is important to highlight how narrow is the actual dispute over the NSA program. Few 

of the President’s critics claim that he should not have ordered the 

interception of al Qaeda’s global communications or that he needed 

the FISA court’s permission to intercept al Qaeda communications 

abroad. It is only with respect to communications actually intercepted inside the United States or where the target is a United 

States person that FISA is relevant at all to this National discussion. 

Since this program involves only international communications 

where at least one party is an al Qaeda operative, it is not clear 

that any of the intercepts would properly fall within FISA’s terms. 

This is not the pervasive dragnet of American domestic communications about which so many of the President’s critics have fantasized. 

The administration has properly refused to publicly articulate 

the full metes and bounds of the NSA program. Let us assume, 

however, that some of the intercepts are subject to FISA. As the 

Department of Justice correctly pointed out in its January 19, 2006 

memorandum, FISA permits electronic surveillance without an 

20

order if it is otherwise authorized by statute. The NSA program 

was so authorized. 

The September 18, 2001 authorization for the use of military 

force permits the President to use all necessary and appropriate 

force against those responsible for September 11th in order to prevent any future acts of international terrorism against the United 

States. The Supreme Court has already interpreted this grant to 

encompass all of the fundamental incidents of waging war. 

In Hamdi v. Rumsfeld, the Court considered and rejected the argument then being advanced with respect to the Non-Detention Act 

that the September 18th authorization permitted only those types 

of force not otherwise specifically forbidden by statute. The monitoring of enemy communications, whether or not within the United 

States, is as much a fundamental and accepted incident to war as 

is the detention of captured enemy combatants. Indeed, it is only 

through the collection and exploitation of intelligence that the September 18th authorization can be successfully implemented. 

However, even in the absence of that law, the NSA program 

would fall within the President’s inherent constitutional authority. 

The courts, including FISA’s own Foreign Intelligence Surveillance 

Court of Review, have consistently recognized and respected this 

authority. In 2002, that court specifically noted that all the other 

courts who have decided the issue held that the President did have 

inherent authority to conduct warrantless searches to obtain foreign intelligence information, and that we take for granted that the 

President does have that authority. And assuming that is so, FISA 

could not encroach on the President’s constitutional power. 

Of course, the Supreme Court has never considered whether 

FISA may have improperly trenched upon the President’s authority. The test will be whether it impedes the President’s ability to 

perform his constitutional duty. If FISA were construed to prohibit 

the President from monitoring enemy communications in the 

United States without judicial approval, then the statute would be 

invalid. It need not and should not be so interpreted. 

Obviously, there are many who disagree with this analysis. Few 

questions of either constitutional or statutory interpretation cannot 

be honestly debated. However, to censure the President because his 

view is inconsistent with that of one or more members of the Senate would be improvident and irresponsible. It amounts to an effort 

to punish not merely policy differences, but differences over legal 

arguments, and it is just plain wrong. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Casey appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Casey. 

We now turn to Mr. John W. Dean III, White House Counsel to 

President Nixon from July 1970 to April 1973; a bachelor’s degree 

from the College of Wooster and a law degree from Georgetown 

Law School. He had served as chief minority counsel to the House 

Judiciary Committee. He worked subsequent to leaving Government as an investment banker and he has authored a number of 

books. 

Mr. Dean, welcome to the witness table and the floor is yours. 

21

STATEMENT OF JOHN W. DEAN, WHITE HOUSE COUNSEL TO 

PRESIDENT RICHARD NIXON 

Mr. DEAN. Thank you, Mr. Chairman. My qualifications for addressing the Committee, I think, were alluded to by the Senator 

from Texas, who is no longer here, and I think it is important that 

the Committee sometimes hear from the dark side; that those of us 

from that perspective can add some insights that might not otherwise be available to a body like this. 

I must say I think I have probably more experience firsthand 

than anybody might want in what can go wrong and how a President can get on the other side of the law. Obviously, I refer to my 

experience at the Nixon White House during Watergate. 

In addition to my firsthand knowledge of what can go wrong in 

a White House, I have spent the last some three decades studying 

Presidents past and present. And I am not here to sell a book 

today, but I did write a book that gave me additional insight. Indeed, the book I am going to be publishing soon that mentions the 

Senator from Texas will not be out until this summer. 

No President that I can find in the history of our country has 

really ever adopted a policy of expanding Presidential powers for 

the sake of expanding Presidential powers, and I think that is what 

we have going on in this presidency. It was the announced objective of the Bush-Cheney presidency from the very outset and it has 

been pursued at every turn, on every issue, on any matter from a 

dispute with the General Accounting Office to now how they pursue their NSA program. Rather than come to Congress and even 

seek approval, they want to do it without approval. That is very 

unique. For example, Abraham Lincoln, in his very strenuous violations of many laws and constitutional provisions, came back to 

Congress and asked for permission. That isn’t the case here. We 

have a President who doesn’t want to do that. 

In looking at the issue of censure, per se, I am sure this Committee, in particular, is intensely aware of what happened during 

the Clinton impeachment, when it was well debated. It was debated by Members of the House and the Senate. It was debated by 

constitutional scholars, political commentators, and the common 

denominator that came out of that debate, I think, was that everybody basically agreed that censure is a political proceeding. 

I looked at the historical collection that I could find on that issue 

and it seems that those who have looked at historical—some four 

clear instances, with John Quincy Adams, Andrew Jackson, John 

Tyler and James Buchanan—those are the four leading precedents 

for censure and all were motivated by partisan political activity. 

I find no constitutional question that the Congress has the power 

to grant impeachment. I have read debates on both sides. I read 

a lot of the material during the Clinton impeachment. This Committee is very familiar with Professor Michael Gerhardt’s work, 

and he certainly, looking at everything from provisions within the 

Constitution where the House and Senate are able to keep their 

own journals, to the First Amendment, said there is just no prohibition in the Constitution that would prohibit a censure. 

Now, why a censure is a better question. To me, this is not really 

and should not be a partisan question. I think it is a question of 

institutional pride of this body, of the Congress of the United 

22

States. What has happened is particularly since 1994—and it didn’t 

happen during the Clinton presidency, but there has been a growing tendency—and I started my career on Capitol Hill—to let the 

President do what he wants and to have virtually no oversight. 

I can tell you from the other side of Pennsylvania Avenue that 

that is very important to Presidents. They take note of that when 

they are not being called to the mat. They push the envelope as 

far as they can. Richard Nixon was proud in throwing down the 

gauntlet at this body and felt it important that he do so. 

So I think impeachment is premature. I think censure, which 

need not be political by any stretch of the imagination—in fact, if 

it carries too much political baggage, it can always be a resolution 

that is worded in some softer terms to make clear that the Congress itself is not waiving its power to step into these issues, because at some point as I track the constitutional law—and I put 

some of that in my formal statement—there is a waiver that occurs. And a censure, appropriately worded, is the answer to that. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Dean appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Dean. 

Our final witness is Mr. John Schmidt, a partner with Mayer, 

Brown, Rowe and Maw. He had been a visiting scholar at Northwestern University School of Law, governmental service as Associate Attorney General of the United States during the administration of President Clinton from 1994 to 1997, and was Ambassador 

and chief U.S. negotiator for the Uruguay Round under the General Agreement on Tariffs also in the Clinton administration from 

1993 to 1994; magna cum laude, Harvard College, cum laude at 

Harvard Law School. 

Thank you for coming in today, Mr. Schmidt, and we look forward to your testimony. 

STATEMENT OF JOHN SCHMIDT, MAYER, BROWN, ROWE AND 

MAW, CHICAGO, ILLINOIS 

Mr. SCHMIDT. Thank you, Mr. Chairman. I am pleased to be here 

and give you my views on this issue. As your introduction indicates, I come at this from the perspective of having served in the 

Justice Department under a Democratic President, Bill Clinton, 

and I have a lifetime of activity as a Democrat, including serving 

as chief of staff to a Democratic mayor of Chicago. So I don’t have 

any partisan bias in favor of President Bush on this issue. 

I nevertheless feel very strongly that any consideration of censure of the President for authorizing the NSA program is completely unwarranted and inappropriate, and it seems to me to really demean and undermine the kind of serious discussion of this 

issue which we should be having. 

My own legal judgment, which I set out publicly right after the 

disclosure of the NSA program in an article that I attached to my 

statement, was and is that the President had the authority under 

Article II of the Constitution to authorize the NSA program, notwithstanding the fact that it was and is inconsistent with the 

terms of the Foreign Intelligence Surveillance Act. 

23

To me, that comes down to two propositions. The first is setting 

aside anything Congress might have done, the President has the 

inherent authority under Article II to order surveillance of a foreign power, whether it is a terrorist group or a nation, that is active in this country. As was indicated, the Supreme Court left that 

question open back in 1972, but we have three court of appeal decisions that have said clearly the President has that authority. 

The further question is can Congress take that inherent authority away from the President. I think the answer to that is no. We 

have less authority on that, but we have one judicial statement 

which has been alluded to and that is the 2002 opinion of the Foreign Intelligence Surveillance Court of Review which looked at the 

issue, looked at the case law I was just describing and said it took 

for granted that the President has the constitutional authority to 

order warrantless surveillance for intelligence purposes. And assuming that is true, Congress could not encroach upon that Presidential power. That is the same quote that was quoted earlier and 

it is one that deserves repeating. It is dicta. It is not a holding in 

that case, but it is from three Federal court of appeals judges who 

were fully familiar with the constitutional issues involved, and it 

is the only judicial statement on this issue. 

There is a further authority, if I can call it that, that in my own 

thinking weighs heavily, and that is the position that was taken by 

Attorney General Edward Levi, who was, as you all know, Attorney 

General under President Ford. He came into office really to clean 

up the mess that Mr. Dean and his colleagues had left and did a 

magnificent job. 

Ed Levi’s position was that Congress could and should establish 

a court mechanism to allow judicial approval of intelligence surveillance, but he was always explicit. Congress could not make that 

mechanism exclusive. It could not take away from the President his 

inherent constitutional authority to act in other circumstances. 

He was asked at a hearing what are the other circumstances 

where the President might act outside the confines of the FISA Act. 

He was prepared to give a letter that President Ford would act 

under the FISA Act under all circumstances he could then anticipate. He said I don’t know, but I know the future is unpredictable. 

He said the foreign threats to this country in the future are unpredictable, and he repeatedly emphasized that technologies could 

change. 

It seems to me he had it exactly right, and what happened after 

9/11 was we faced a type of a threat, a serious terrorist attack in 

this country we had never faced before. The President, according 

to what he has said and according to what General Hayden has 

said, went to the NSA and said can you come up with a program 

that will be more effective in trying to get information on where 

and when they may attack again? 

The NSA said we can; we can do something under current technologies, but we can’t do it under the confines and within the current FISA process. Under those circumstances, it seems to me the 

President had, should have, needs to have the constitutional authority to authorize that program. 

As was quoted earlier, when FISA actually passed Attorney General Griffin Bell, who was then in office, said the Act cannot take 

24

away the President’s inherent constitutional authority in this area. 

But, you know, if you assume all that wrong—I am wrong and Attorney General Levi was wrong and the Foreign Intelligence Surveillance Court of Review is wrong—I still cannot conceive of a 

basis for censure of the President under these circumstances. 

There is no evidence that the President did anything but authorize in good faith a program which he believed was necessary to protect the country. There is no evidence that he did anything but rely 

in good faith on the legal advice he received from the Justice Department and other lawyers in the Government. Under those circumstances, to censure the President seems to me to be simply 

wrong and to have no justification. 

I do think there is reason to think seriously about legislation in 

this area to establish a court process to approve this kind of program. But to talk about censuring a President for acting in good 

faith to authorize a program based on the good-faith legal advice 

he received seems to me to be irresponsible and really a disservice 

to the serious discussion of these kinds of issues. 

[The prepared statement of Mr. Schmidt appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Schmidt. 

We now come to the portion of our hearing where the Senators 

will question, and in accordance with our practice we will have 5-

minute rounds. 

The two witnesses requested by Senator Feingold, Mr. Fein and 

Mr. Dean, have given us the opposite ends of the poles. Mr. Fein 

wants sunshine and Mr. Dean wants to turn to the dark side. 

Mr. DEAN. I want to report on the dark side. 

Chairman SPECTER. I was looking for the comments on bad faith 

or good faith, and finally we heard it from you, Mr. Schmidt, that 

there is no evidence of bad faith. It seems to me that before a censure resolution can get anywhere, can rise to the level above being 

frivolous, there has to be an issue of bad faith. Senator Feingold’s 

resolution doesn’t say a word about bad faith. 

Don’t you think, Mr. Dean, that that is an indispensable prerequisite, a sine qua non, to censure the President? I note that 

your 2004 book, Worse than Watergate, called for the impeachment 

of President Bush. So you were pretty tough on him long before 

this surveillance program was noted. 

But to come back to good faith and bad faith, don’t you think 

there has to be some issue of bad faith? 

Mr. DEAN. In Worse than Watergate, I didn’t call for impeachment. I laid out a case that could be made for impeachment. I do 

make a distinction. 

As far as Senator Feingold’s resolution, when I read those 

‘‘whereas’’ clauses, it seems to me that there is evidence of bad 

faith. First of all, there is certainly a prime facie case that— 

Chairman SPECTER. Mr. Dean, do you think that Senator Feingold would shy away from those two magic words, ‘‘bad faith,’’ 

when they are so much easier to define than the ‘‘whereas’’ clause? 

I recollect his 25-minute speech on the floor. I wanted to ask him 

about bad faith and didn’t get a chance to. 

Mr. DEAN. I don’t recall bad faith as being a prerequisite to censure. 

25

Chairman SPECTER. Well, it is not a matter of recollection. 

Mr. DEAN. It is conduct. 

Chairman SPECTER. Don’t you think that it takes bad faith to 

censure a President? 

Mr. DEAN. I think in gathering my thoughts to come back here, 

I thought, you know, had a censure resolution been issued about 

some of Nixon’s conduct long before it erupted to the degree and 

the problem that came, it would have been a godsend. 

Chairman SPECTER. Well, then the Congress was at fault in not 

giving him a warning signal. 

Mr. DEAN. It would have helped. 

Chairman SPECTER. Let me turn to you, Mr. Fein. You have testified that censure is really not different from oversight. I have to 

disagree with you categorically. When we do oversight and call in 

executive branch officials and look at what they have done and disagree and make suggestions, I have never heard in an oversight 

hearing somebody say you ought to be censured for what you have 

done. Occasionally, you hear the word ‘‘shameful.’’ 

But come to your central point where you say you shouldn’t censure every legal disagreement, and you are a very good lawyer, Mr. 

Fein. You have testified before this Committee on a number of occasions and we don’t have to engage in any extended discussion to 

note the powerful circuit opinions on executive authority under Article II for stealth and speed and secrecy. 

When you say that President Bush kept it secret, that is not so. 

He told the so-called Gang of 8. We have the letter which Senator 

Rockefeller wrote saying he wasn’t very extensively informed and 

didn’t have a lawyer with him. I chaired the Intelligence Committee during the 104th Congress, in 1995 and 1996, so I was a 

member of the Gang of 8 at that time. President Clinton was in 

the White House and they didn’t tell us very much. 

I am not defending the failure to notify the intelligence committees, which is what the National Security Act of 1947 calls for. But 

there has been a lot of precedent for just informing the Gang of 8, 

and it has been a long time that Congress has sat back and not 

insisted that Presidents, Democrats and Republicans alike, observe 

the interdiction to inform the committees, but that has happened. 

So before my red light goes on, Mr. Fein, I will ask you the question. Wasn’t the Gang of 8 informed, so that there was not secrecy 

here? And don’t you really have a situation where you have a deepseated, complex legal issue which at least gives the President a 

basis for taking his position without calling him to task for censure? 

Mr. FEIN. Let me make a couple of observations about bad faith 

or secrecy. One, we don’t have the information, if it exists, indicating what advice President Bush received just before he commenced the warrantless surveillance program. You don’t know, I 

don’t know, and he is resisting giving that information to you that 

could dispel any uncertainty on such a critical matter. That still is 

secret. 

Second, with regard to informing a handful of Members of Congress, that is not all Members of Congress. And, of course, as you 

pointed out, we don’t want the President to do things that would 

risk the national security of the United States and to inform in 

26

such detail that intelligence sources and methods could be disclosed. 

But if you are going to have accountability, you have to have accountability to the Congress of the United States, not just one or 

two Members, and accountability that at least indicates the nature 

of the program in sufficient detail to enable an assessment of its 

legality and wisdom. If you don’t know how many people are being 

spied on in the United States, you don’t know what the results of 

that are. How can you make an assessment as to its reasonableness? 

The purpose of informing is not just to have informing for its 

own sake. It is to have the operation of checks and balances at 

work, and it has to be done in a framework then that enables a 

collective judgment of Congress to be brought on the legality, the 

success of the program. It is still so secret, in my judgment, that 

it is still impossible for Congress to make that assessment at 

present. 

Chairman SPECTER. Thank you, Mr. Fein. 

Senator Leahy. 

Senator LEAHY. Well, thank you. Mr. Fein, I have to agree on 

that. As I said in my opening statement, the only time we have actually had anybody here to testify who could answer that question 

was the Attorney General, and I finally lost count of the number 

of times he refused to answer the question in questions asked by 

both Republicans and Democrats. 

Mr. Dean, as I understand your arguments in favor of censure, 

you see it not so much as a punitive sanction, but rather as a way 

of reaffirming the separation of powers and preserving the rule of 

law for the future. 

Mr. DEAN. That is correct. 

Senator LEAHY. And not whether the President acted with malice 

in authorizing a secret domestic spying program, but whether the 

President has to abide by the law and must come to us. In other 

words, if the President doesn’t agree with the law, he can’t just 

break the law. He has to come to the Congress and ask to have the 

law changed. Is that correct? 

Mr. DEAN. That is correct. There is certainly a prime facie basis 

of evidence to believe that he is not complying with the law. There 

is a healthy debate as to whether he is complying, and it seems to 

me the President shouldn’t want to be in that position. He ought 

to come to Congress and say here is what I need to make sure I 

am complying with the law, but he has decided to use this as another vehicle to test his power. 

Senator LEAHY. Well, there seems to be an evolution of his reasoning. Each time this stuff comes out from the White House, there 

is somewhat of a different reasoning, the latest being that he was 

somehow authorized for this spying on Americans because of our 

resolution, which I supported, to go into Afghanistan and get 

Osama bin Laden—something, ironically enough, they never did. 

What if we had actually declared war on Iraq or anywhere else? 

Would that have allowed the President to disobey the law? 

Mr. DEAN. I don’t believe so, per se. I don’t think there is something in the Commander in Chief Clause that gives a preemptive 

right over existing statutory law. Obviously, we were not declared 

27

in Korea during the Youngstown case, and even then the President 

was arguing virtually unlimited authority and the Court made it 

very clear he didn’t have it. 

Senator LEAHY. Well, let me ask Mr. Fein on this. I mean, I am 

just trying to think about other situations where the President violates the law. Republicans and Democrats last month raised national security concerns—whether they were good or bad is not the 

issue, but national security concerns about the administration’s approval of a deal allowing a government-owned entity in Dubai to 

take over port operations in the United States. 

Now, here, we had a specific, express Federal statute, the ExonFlorio provision which requires a mandatory investigation that the 

administration is supposed to follow. They didn’t bother to carry 

that out; they didn’t bother to follow the law. Many in Congress 

wanted to scuttle the deal. Again, whether it was good or bad, we 

had a law that was not followed and in the end the deal was scuttled. Nobody called for censure there. 

Why is censure appropriate here and not there? 

Mr. FEIN. Because I think the magnitude of the separation of 

powers issue is so much more momentous. The President’s theory 

that he has inherent constitutional power to gather foreign intelligence in any way he wishes, irrespective of congressional statutes, 

means he can open our mail tomorrow if he says I am trying to 

gather foreign intelligence, despite the criminal prohibition. It 

means he can break and enter our homes, despite FISA’s government of physical searches, because he says he is gathering foreign 

intelligence. It means he can torture detainees, irrespective of a 

Federal statute, if he says I am seeking to gather foreign intelligence. It has no stopping point and that is why the consequences 

of endorsing that theory are so much more momentous. 

I would like to say another word about the authority of Congress 

to act in this area because we are not speaking of an effort by Congress to usurp the President’s power to gather foreign intelligence. 

Article I, section 8, clause 18, the Necessary and Proper Clause, 

grants to Congress the power to regulate the powers of the United 

States Government, no matter whether exercised by Congress, the 

executive branch or the judicial branch. 

The President does have inherent authority to gather foreign intelligence, but Congress may regulate that under the Necessary 

and Proper Clause. And all it has done in FISA is said because of 

the history of abuses disclosed by the Church Committee, we want 

a judge between the spy and the targeted American citizen. You 

can still engage in foreign intelligence collection. 

And then if I could just add this one final point with regard to 

the workability of FISA, on July 31, 2002, before the Senate Intelligence Committee, the Department of Justice of President Bush 

said FISA is working beautifully; we need no changes with it. What 

has happened since July 31, 2002, that has suddenly made it unworkable? If it has happened, we haven’t been informed of it. 

Senator LEAHY. Mr. Chairman, might I just follow with a question to Mr. Schmidt because it relates to this? 

Chairman SPECTER. Proceed, Senator Leahy. 

Senator LEAHY. Thank you. Incidentally, I agree with what Mr. 

Fein said. 

28

Mr. Schmidt, you said in your statement that as far as you can 

tell, the President, quote, ‘‘acted on the basis of credible legal advice,’’ close quote. Who knows that? I mean, when we asked what 

the documents were, when we asked when this was first said, when 

we asked what led up to it, when we asked when it supposedly 

evolved, when all this happened, all that has been withheld. How 

in heaven’s name do we know it comes from credible legal advice? 

Mr. SCHMIDT. Well, we know that both the President and General Hayden have said that they relied upon the advice of not only 

the Justice Department, but the lawyers within the National Security Agency. General Hayden has briefed Members of Congress. I 

assume he has said the same thing, and if he is lying, I guess he 

would be committing a felony. 

Senator LEAHY. I am not saying that, but we don’t know what 

the credible legal advice was. Nobody has talked about it, nobody 

has shown it to us, and the one person who could tell us what it 

is refuses to answer the question. Do you understand my frustration? 

Mr. SCHMIDT. If you are saying you want evidence that the advice that you are now hearing from the Attorney General is the 

same advice he gave initially—he is, what, lying now and saying 

something that he said he said then, but he is not saying now? 

Then it seems to me you are putting him in the position where he 

is lying to Congress. So if you are saying you want documents to 

confirm that the Attorney General is not lying to Congress, I 

haven’t seen those documents, but I don’t see any reason to suspect 

that he is lying about it. 

Chairman SPECTER. Senator Hatch. 

Senator HATCH. Well, as a practical matter, Presidents don’t give 

up their private counsel advice. But as you have very effectively 

pointed out, the Attorney General has appeared here and given the 

advice that they have used. This is the most classified program in 

the Federal Government. I am aware of it and I have to say that 

I think some of the arguments are not only fallacious, they are ridiculous. 

To come and try and say that the President has violated the law, 

come on. Presidents do have powers. There is no question Congress 

needs to do what it can to overview these matters, and we are 

doing that and we are doing it on the Intelligence Committee. I 

have appreciated the testimony of all of you. I don’t agree with 

some of the things, but at least this has been a reasonable discussion. 

Let me start with you, Mr. Dean. On September 14, 2001, just 

3 days after the terrorist attacks on America, you published an article entitled ‘‘Examining the President’s Power to Fight Terrorism.’’ Now, in that article you argued that, quote, ‘‘The President does not need congressional authority to respond,’’ unquote. 

Mr. DEAN. Right. 

Senator HATCH. You wrote that Article I, section 8, which gives 

Congress the power to declare war, quote, ‘‘does not put the Congress in charge of counterterrorism, which is an executive function,’’ unquote. You also wrote, quote, ‘‘Yet, as all his predecessors 

realized, when it gets down to how, when and where to respond, 

the President can do whatever he feels necessary, whether ConVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
29

gress agrees or disagrees. Article II, section 1, has vested him with 

that power.’’ 

Now, President Bush and Attorney General Gonzales have made 

exactly the same arguments about inherent constitutional authority. Yet, today I hear you saying that Congress can bind the President’s counterterrorism efforts by statute after all. I hear you saying that the President needs congressional authority to respond 

after all. Now, maybe I have misconstrued what you said. I don’t 

want to do that. 

Mr. DEAN. In the September 14th piece I wrote, what I was trying to do was to pull together a broad look at the powers the President had. 

Senator HATCH. Sure, but those are pretty explicit comments. 

Mr. DEAN. Yes, they were. 

Senator HATCH. They seem to rebut what you are saying here 

today. 

Mr. DEAN. In fact, I cited Mr. Turner as a good source, but I also 

did not say the President had authority to violate any existing statute, because I don’t believe he does have that— 

Senator HATCH. But you don’t know whether he has violated any 

existing statute, including FISA. 

Mr. DEAN. Well, as I said earlier, I believe there is certainly 

prime facie evidence that that is the case. 

Senator HATCH. I can tell you there is no prime facie evidence. 

Mr. DEAN. Well, most Presidents who have even had a doubt 

have come to Congress and asked for authority. And I am telling 

you that I believe this is a part of a very consistent, long-term, 

early announced policy of this Presidency that they are seeking to 

build Presidential power for the sake of Presidential power. 

Senator HATCH. You have no evidence of that. 

Mr. DEAN. I have lots of evidence of that, Senator. 

Senator HATCH. I don’t think you have any. 

Mr. Turner. 

Mr. TURNER. In fairness to the President, what they have tried 

to do— 

Senator HATCH. Your name has been used. That is why I am 

turning to you. 

Mr. TURNER. They have tried to restore the balance that was understood from the days of John Jay and Thomas Jefferson and Alexander Hamilton, all of whom said that Article II, section 1, gives 

the President the Executive power, which includes the management of foreign affairs, subject to narrowly construed checks vested 

in Congress and in the Senate, that was taken away following Vietnam by things like the war powers resolution and the HughesRyan amendment, and so forth. They are trying to restore the constitutional balance, for which I think the President deserves praise. 

But also, in wartime, the idea that the President should sit back 

and say, well, I have the power to do this, it can save American 

lives, but I don’t want to offend certain Members of Congress, so 

I am not going to allow the National Security Agency to listen 

when bin Laden calls some U.S. person who might well be a Saudi 

national who is totally committed to bin Laden’s cause who lives 

in this country and he qualifies as an American under FISA—we 

have got considerable evidence that FISA contributed to 9/11. 

30

We know Colleen Rowley, the FBI agent who made Time’s Person of the Year in 2002 because she was angry that the FBI would 

not get her a FISA warrant—the FBI could not give her a FISA 

warrant because Moussaoui was not an agent of al Qaeda. 

Moussaoui was a lone wolf. In 2004, Congress amended FISA to 

cover the lone wolf problem. 

We know that General Hayden, the head of NSA, now the deputy 

director of national intelligence, has said if we had had this program prior to 9/11, it was his professional judgment they could 

have found and identified some of the 9/11 terrorists. He didn’t follow on to say that means we might have stopped the attack, but 

that seems implicit in it. 

So a lot of harm has been done by what Congress did in the 

wake of Vietnam. The President is trying not to seize new power, 

but to take us back where this country was from 1789 to about 

1975. 

Senator HATCH. Mr. Chairman, is it possible that I could just ask 

Mr. Schmidt one more question? 

Chairman SPECTER. Proceed, Senator Hatch. 

Senator HATCH. I hate to impose on you, but let me just ask you 

this question. I have questions for the rest of you, but I have run 

out of time. 

The Feingold resolution’s conclusion, Mr. Schmidt, that the 

President should be punished by censure because he broke the law 

rests, I think, on a particular premise. The resolution states that 

the FISA Act trumps the President’s constitutional authority to 

conduct his foreign intelligence surveillance program. Now, it 

seems to me that if this premise is even arguable, then this whole 

censure gamut fails. 

I understand from your testimony that you reject this premise 

that the FISA Act trumps the President’s inherent constitutional 

authority. Could you expand on that and explain further how this 

is a longstanding principle, not something the Bush administration 

recently discovered? 

Mr. SCHMIDT. Well, that is correct, Senator. My view is that the 

President had the constitutional authority under Article II. The 

FISA Act could not take that away from him. That is not a new 

idea. It is what Ed Levi believed, it is what Griffin Bell believed. 

Senator HATCH. And a lot of Presidents have relied on it. 

Mr. SCHMIDT. It has been a consistent view, I think, of Presidents that their authority could not be constrained when it comes 

to the need to obtain foreign intelligence. Actually, I think we are 

talking about even the narrowest category of foreign intelligence. 

We are talking about a foreign power, a foreign terrorist group that 

has attacked in this country, and the question is surveillance to get 

information on where they are going to attack again. So I think it 

is really the strongest possible case for the exercise of that inherent 

authority, and that is a longstanding principle of the executive 

branch, upheld in the one judicial statement we have on the issue. 

I would agree with you, though, that as I said, even if that is 

wrong—I may be wrong, obviously, and certain even people like Attorney General Levi or a three-judge court can be wrong. It is still 

an argument that serious legal scholars and serious lawyers can 

make, and under those circumstances to suggest that the President 

31

should be censured because you don’t agree with the legal advice 

he got seems to me to be out of the ball park in terms of the way 

we can sensibly discuss and talk about issues like this. 

Senator HATCH. Well, thank you all. 

Chairman SPECTER. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. First, with regard 

to the comment of the Senator from Texas, who basically did a hitand-run here on our witness, Mr. Dean, of course Mr. Dean committed a crime and paid the price. But let’s remember what caused 

that. It was involvement with a violation of the laws of this country 

by the President of the United States, and he was a courageous 

voice that revealed that. 

I note the irony of Mr. Schmidt being here, third man in the 

Clinton Justice Department. As Senator Leahy pointed out, where 

is the Attorney General and Mr. Comey, who, according to reports, 

have indicated their discomfort with this program? Why are they 

not before this Committee talking plainly about their objections? 

Do you know what word comes to mind, Mr. Chairman? It is a 

word that first came into my consciousness in 1974—cover-up. It 

is a cover-up. 

Mr. Chairman, on the issue of the constitutionality of censure, I 

obviously strongly disagree with Senator Hatch. Censure has historically been an option for the Senate to express its opinion of 

Presidential action. The Senate expresses its view through resolutions all the time and I would like to submit for the record, if I 

could, Mr. Chairman, an article by Professor Michael Gerhardt, 

whom Mr. Dean spoke about, on the constitutionality of censure 

published in 1999 in the University of Richmond Law Review. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Senator FEINGOLD. One sentence from that: ‘‘The truth is that 

censure, understood as a resolution critical of the President passed 

by one or both houses of Congress, is plainly constitutional.’’ 

Mr. Chairman, if you want to look to recent precedent, Senator 

Feinstein’s resolution of censure in 1999 had 38 cosponsors, including five Republicans, three of whom are still members of this body. 

That resolution stated specifically that ‘‘The U.S. Senate does hereby censure William Jefferson Clinton.’’ So there certainly is precedent for the idea that censure could be referred to specifically. 

Now, Mr. Chairman, before I ask my first question, I want to get 

to this question of—you didn’t help me draft this thing, but if you 

want the words ‘‘bad faith’’ in there, let’s put them right in, because that is exactly what we have here. 

The whole record here makes me believe, with regret, that the 

President has acted in bad faith both with regard to not revealing 

this program to the appropriate Members of Congress, the full committees that were entitled to it, but more importantly by making 

misleading statements throughout America suggesting that this 

program did not exist—I understand if he didn’t talk about—and 

then after the fact dismissing the possibility that he may have done 

something wrong here, that he may have broken the law. So call 

it bad faith, call it aggravating factors. 

Mr. Fein, for me, the law-breaking is shocking in itself, but the 

defiant way that the President has persisted in defending his acVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
32

tions with specious legal arguments and misleading statements is 

part of what led me to conclude that censure is a necessary step. 

Let me ask you about the first factor you cite that the intent was 

to keep this program secret from Congress and avoid political or 

legal accountability indefinitely. 

Do you think that that factor answers the claim that the President should not be censured because he acted in good faith on the 

basis of legal advice from the Department of Justice? 

Mr. FEIN. Yes, because that is, in fact, one of the most critical 

elements in disturbing checks and balances and separation of powers. You cannot have the operation go forward with someone checking a program that is unknown, and without the New York Times 

publication I feel confident Bush would have celebrated leaving office and having this still secret. A secret Government of that magnitude spying on Americans on American soil forever without being 

disclosed to anybody is frightening. 

It is exactly that kind of prolonged secrecy that the Church Committee exposed as yielding 20 years of illegal mail-openings, illegal 

seizures of international telegrams, illegal use of the NSA for 

criminal justice purposes. Secrecy breeds that kind of abuse and it 

is not going to change post-9/11 or pre-9/11. 

Senator FEINGOLD. Thank you, Mr. Fein. 

Mr. Dean, one of the things that troubles me greatly and which 

I cite in my resolution as grounds for censure again are the misleading statements that the President made concerning wiretaps 

during his reelection campaign and in his campaign to reauthorize 

the PATRIOT Act. He repeatedly emphasized that wiretaps in this 

country are always approved by a judge. He knew he wasn’t telling 

the complete story, but he continued to engage in it. That is why 

on July 14, 2004, he said, quote, ‘‘The Government can’t move on 

wiretaps or roving wiretaps without getting a court order.’’ 

On April 20, 2004, he said, quote, ‘‘When we are talking about 

chasing down terrorists, we are talking about getting a court order 

before we do so,’’ unquote. He knew when he gave those reassurances that he had authorized the NSA to bypass the very system 

of checks and balances that he was using as a shield against criticisms of the PATRIOT Act and his administration’s performance. 

Do you agree that misleading the American people in this way 

is worthy of condemnation? 

Mr. DEAN. Is that question to me, Senator? 

Senator FEINGOLD. Yes. 

Mr. DEAN. It was certainly very striking. It was rather blatant, 

it was misleading, and in the context that it has arisen it is such 

an important issue. If it were unique and isolated, I might feel differently. I think it is a pattern and practice. 

Senator FEINGOLD. Thank you, Mr. Dean. Thank you, Mr. Chairman. 

Chairman SPECTER. Well, it is my turn again. Is Senator 

Graham in the back room? If so, he will come back for a second 

round. 

Mr. Fein, you just responded to the question of Senator Feingold 

saying secret, without being disclosed to anyone. Why do you persist in saying that when the Gang of 8 was informed about the program? 

33

Mr. FEIN. Because I think the informing function has to be measured against what the role of checks and balances is. The level of 

disclosure and the magnitude or the breadth of disclosure has to 

be commensurate with the ability of the other body to check and 

evaluate and make conclusions. I do not think that checks and balances— 

Chairman SPECTER. But, Mr. Fein, you don’t know the scope of 

the disclosure. You don’t know what was told to the Gang of 8, do 

you? 

Mr. FEIN. I have made inquiries of some Senators and have 

asked specifically, have you been told the number of individual 

Americans who have been spied upon, have you been told this is 

the kind of intelligence we have gathered through these programs? 

And there has been silence. I don’t know whether you have been 

told that, but certainly no one else has yielded that. Perhaps Senator Hatch could explain whether he has been told the number of 

Americans who have been spied on and the nature of the intelligence and how effective it is. 

Chairman SPECTER. Well, Mr. Fein, with all due respect, you 

aren’t the last word in defining what has to be disclosed in order 

to have it not a secret. But you have it on the record; you have 

Senator Rockefeller’s letter that he was told about the program. 

There have been public statements by others of the Gang of 8 that 

they were told about the program. Now, maybe they weren’t told 

as much as you would like to have them told, but it seems to me 

that it is just wrong for you to continue to say it is secret. 

Mr. FEIN. I certainly am not a Member of Congress who can be 

definitive. I am a citizen of the United States who cares about a 

republic rather than a monarchy, and I have an interest in having 

Congress exercise its authority to check the Executive, even if Congress does not wish to go forward on that score. 

It is for that reason why, in my judgment, the kinds of limited 

disclosure that you have described are not sufficient for Congress 

to exercise the oversight and evaluation of a program whose scope 

and breadth and detail is not known to you and is required to be 

known to evaluate the Fourth Amendment’s reasonableness standard. 

Chairman SPECTER. Well, no one could say that I am not interested in having a check and balance and finding out what this program is, but I just disagree with you head-on when you say that 

it is still secret. 

Professor Turner, you raised your hand, but let me ask you a 

question before you respond focusing on the issues that I want to 

bring out in this hearing, and that is you are a very strong defender, and I appreciate your fervor defending Presidential authority. 

But what would be wrong with the President submitting to the 

FISA court the program that he has? If it is domestic spying under 

the FISA Act, he is obligated to make a disclosure to the FISA 

court on domestic surveillance, and it is in part domestic surveillance and it is in part foreign. And there are strong arguments 

which I have already advanced for inherent authority, but we can’t 

really gauge whether that inherent authority is being used constitutionally because that depends upon the standard of reasonVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
34

ableness which you can gauge only if you know what the program 

is. 

What would be wrong with the President disclosing to the FISA 

court his program and having them determine constitutionality? 

Mr. TURNER. Well, two comments, Senator. First of all, what we 

know about the program—that is to say what was reported in the 

New York Times on December 16th of last year and what has been 

said by General Hayden and what has been said by the Attorney 

General all say that one party to every one of these conversations 

was a foreign national outside this country believed to be tied to 

al Qaeda. 

Now, in this country, if we get a wiretap warrant against Al 

Capone and I call Al Capone to sell him something on eBay, the 

FBI or the police can listen to that whole conversation and use 

every word I say against me in court. In other words, it is the target that matters, and in these cases I gather the targets are foreigners. 

But there are two problems with FISA. I have been out of the 

oversight business now for more than 20 years, but I am told there 

is some new technology that I don’t understand and haven’t been 

briefed on that makes it hard to do FISA. Some of this also has 

to do with that we know cell phone numbers that have been used 

by al Qaeda, but we don’t know who is talking on that cell phone 

at any one time. We know e-mail accounts; we don’t know who is 

talking on that e-mail. 

There is another aspect of this that has to do with delay. Washington once wrote that if Congress—this was during the American 

Revolution—if Congress believes that constantly changing members 

of their committees can monitor the business of war which requires 

speed and secrecy and unity of design, they deceive themselves. 

Now, in a FISA warrant, you start off on the NSA side or an FBI 

analyst saying, hey, I would like to listen to this communication, 

I would like to intercept it. It is not really wiretapping, but we call 

it that. He goes to a lawyer at NSA. He may bring in some other 

lawyers and they say, OK, put together a packet. They then go to 

the Office of Intelligence Policy and Review over at Justice, where 

there are dozens of other lawyers, and they kick it around and they 

say, yes, this is probably a good idea. A few days may have passed. 

Then they go to the Attorney General. Well, maybe he is out of 

town giving a speech. He comes back, he focuses on it and he says, 

yes, I like it. Then they need to get the signature of a senior—either the National Security Adviser or a senior national security official. Then they go back and put together about, on the average, 

an inch-thick packet of information for each case, which then gets 

sent over to the court to get in line. 

Now, the court has been working weekends, nights. The judges 

deserve the highest praise for their work. But a system that says 

there are people over there trying to kill us, but before you can listen to what they are saying to people in this country who may well 

be foreign nationals and may well be totally dedicated to the enemy’s cause, but come under the protection of FISA—before you 

can listen, you have to go through this whole process. You know, 

it throws in that element of delay that is incompatible with protecting the lives of the American people. 

35

Now, in 99 percent of the cases I like FISA. I think it can work. 

I think it does provide a useful check, but when the President decides that the security of the Nation requires immediate action—

and when he is talking about intercepting foreign terrorists, the 

idea that Congress would censure him suggests to me that Congress does not have the safety of the American people as much in 

its mind as it does the next election and the possibility that they 

can weaken the President and further party interest. 

Chairman SPECTER. Professor Turner, I am not going to ask you 

another question because that last answer was two-and-a-half minutes. But I am going to come back to it in another round, so bear 

the question in mind. The delay response you just gave doesn’t deal 

with my question as to why not have the program submitted to 

FISA, but I will come back to you when I have some time. 

Senator Graham, you had stepped out of the room when your 

turn came, so we will recognize you now. 

Senator GRAHAM. Thank you very much, and I will not make 

that mistake again. I appreciate very much your having this hearing, Mr. Chairman. Let’s get to the good faith aspect of what is 

going on here. 

Mr. Fein, we have worked together in the past and I think you 

are a very talented man, and I share some of your concerns about 

an inherent authority argument without checks. I have sort of 

raised that a bit, too, but let’s see if we can agree on this. Whether 

you agree with them or not, this crowd in the White House really 

believes this stuff. They believed it before September 11, 2001, that 

the President has robust inherent authority. 

Would you give them credit for really believing what they believe? 

Mr. FEIN. I am not sure I would use the word ‘‘credit.’’ I will accept that they believe what they believe. 

Senator GRAHAM. Well, that is the way they feel about you. And 

the one thing I have gotten from this panel—you are all fine people 

and I am glad none of you are making policy because I think we 

would be in two real big ditches here. 

Mr. FEIN. But this is the one observation I would make— 

Senator GRAHAM. Do you doubt that Mr. Addington, who represents the Vice President, really believes this argument? 

Mr. FEIN. I don’t doubt that he believes what he says. 

Senator GRAHAM. Good, because they do believe it. Now, you believe something else, but to say they don’t believe it is a joke. 

These people really do believe the President has robust authority 

when it comes to fighting a war. 

Now, Mr. Dean, this is a little bit different than Watergate. Did 

you ever believe there was a legal basis for the President of the 

United States to break into the Democratic National Headquarters? 

Mr. DEAN. No. 

Senator GRAHAM. You knew you were committing a crime. That 

wasn’t the debate, whether or not it was legal or not. You just 

chose to break the law. 

Mr. DEAN. I couldn’t read the Commander in Chief Clause the 

way it is being read today. 

36

Senator GRAHAM. That is different, that is different. You read it 

differently, but nobody read the Constitution to say that Richard 

Nixon and you could break into somebody’s private office and steal. 

Mr. DEAN. I don’t think when we talk about Watergate— 

Senator GRAHAM. Isn’t that different? Isn’t there a big difference 

between knowingly breaking the law, burglarizing somebody’s office, and having a real debate about where authority begins and 

ends? 

Mr. DEAN. Nixon didn’t authorize the break-in. 

Senator GRAHAM. Oh, he didn’t, OK. Did you authorize it? 

Mr. DEAN. No, I did not. 

Senator GRAHAM. Did you know about it? 

Mr. DEAN. No, I did not. 

Senator GRAHAM. Did he ever know about it? 

Mr. DEAN. After it happened. 

Senator GRAHAM. OK, so then he covered up a crime that he 

knew to be a crime, right? 

Mr. DEAN. Senator, it might be important for you to know that— 

Senator GRAHAM. Did he cover up a crime that he knew to be a 

crime? 

Mr. DEAN. He covered it up for— 

Chairman SPECTER. Senator Graham, let him answer the question. 

Mr. DEAN. He covered it up for national security reasons. 

Senator GRAHAM. Give me a break. 

Mr. DEAN. I am serious. 

Senator GRAHAM. He covered it up to save his hide. 

Mr. DEAN. No, sir. You are showing you don’t know that subject 

very well. 

Senator GRAHAM. What is the national security reason to allow 

a President to break into a political opponent’s office? 

Mr. DEAN. The cover-up didn’t really concern itself with— 

Senator GRAHAM. What enemy are we fighting when you break 

into the other side’s office? 

Mr. DEAN. Senator, if you will let me answer, I will give you 

some information you might be able to use. 

Senator GRAHAM. Yes, please. 

Mr. DEAN. He covered it up not because of what had happened 

at the Watergate, where I think he would have cut the reelection 

Committee loose. He kept them covered up because of what had 

happened while they were at the White House, which was the 

break-in into Daniel Ellsberg’s psychiatrist’s office. And that, he believed, was a national security activity. 

Senator GRAHAM. So he had the view that you could plot a crime 

in the White House and that made it national security? That is absurd. That is why he got impeached. 

Mr. DEAN. That isn’t what I said. 

Senator GRAHAM. That is why I went to jail. 

Mr. DEAN. I did not go to—well— 

Senator GRAHAM. So let’s get to the reality. Let’s get to the— 

Senator LEAHY. Mr. Chairman, please. I hate to interrupt, but let 

him answer the question. 

Chairman SPECTER. Just a minute, Senator Leahy. I will rule on 

that. 

37

Senator GRAHAM. This is my 5 minutes. I would like to use it like 

I see fit. 

Chairman SPECTER. So far, I asked Senator Graham to desist 

once and after that I think Mr. Dean has been defending himself 

pretty well. 

Senator GRAHAM. Great, and my point is that this is— 

Chairman SPECTER. That is with respect to answering the question, not necessarily as to the substance. 

Senator GRAHAM. Thank you. 

Chairman SPECTER. Go ahead, Senator Graham. 

Senator GRAHAM. My point is this is apples and oranges. Anybody who believes that Richard Nixon was relying on some inherent authority argument to allow himself to break into a political 

opponent is recreating history. This debate is about when does the 

power of the President begin and end in a time of war. This is an 

honest, sincere debate. 

We have got a Supreme Court case that says the force resolution—the Hamdi case—allows the President to put someone in jail 

as an enemy combatant in spite of the fact that Section 4001 of the 

U.S. Code—18 U.S.C. 4001 says no citizen shall be imprisoned or 

otherwise detained by the United States except pursuant to an Act 

of Congress. Justice O’Connor said the force resolution authorizing 

force in Afghanistan met that requirement, and she also said inherent to fighting a war is putting people in prison who are part of 

the enemy. 

The problem here is that we have got a preexisting statute, Mr. 

Fein, and you are right. If you take this argument too far, what 

Mr. Addington is saying makes me wonder if you can have the 

UCMJ. Could the Congress ever do anything in a time of war to 

regulate the land and naval forces? The answer, to me, is, yes, the 

Congress can. Yes, the President can go after the enemy. The middle ground, to me, is the Congress and the President working together. They did act in good faith. I just disagree with them. 

Chairman SPECTER. Thank you, Senator Graham. 

Senator Leahy. 

Senator LEAHY. Can he respond to that? 

Chairman SPECTER. Do you care to respond? 

Mr. DEAN. I would only respond that the very opening premise 

of the Senator’s assumption that Nixon had somehow ordered a 

break-in, based on anything in the historical record, based on anything in my knowledge, is just dead wrong. 

Senator GRAHAM. He condoned it. 

Mr. DEAN. He did not know about it, Senator. It is hard to condone something you don’t know about. 

Senator GRAHAM. Once you know about it, he condoned it. 

Mr. DEAN. Then as I told you, he had a totally different agenda 

for covering it up. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. Thank you. I would note that Professor Turner 

says, and accurately so, there have been many, many changes in 

technology. I don’t think any of us are Luddites. We know that, and 

this White House and previous White Houses have come to this 

Congress and this Committee asking for changes in the FISA law 

38

to keep up with those differences in equipment, and so forth, and 

we have given it to them. They didn’t ask for anything here. 

You seem to believe that we are more concerned about the next 

election. I have got 5 years left on my term. I am not concerned 

about the next election. I am concerned about the Constitution 

being upheld and I am concerned about establishing the principle 

and reestablishing the principle and reaffirming the principle that 

nobody is above the law, not even this President. 

Now, Mr. Fein, there has been a lot of discussion here about the 

President’s inherent authority. Could you please explain the difference between inherent authority and plenary authority? 

Mr. FEIN. Yes. Inherent authority means that a power can be exercised without it being conferred by a coordinate branch. And I 

think this is where Senator Specter is correct that the President 

has acknowledged that if Congress is silent, the President can 

gather foreign intelligence. That is part of the function of operating 

in the foreign affairs realm. 

But Article I also endows Congress with authority to regulate inherent powers. It endows Congress with authority regulate every 

power of the U.S. Government, exercised by whatever agency is involved. And with regard to the collection of foreign intelligence, 

after exhaustive hearings showing a tendency to abuse, Congress 

decided not to eliminate the President’s inherent power to gather 

foreign intelligence, but to regulate it, and regulate it in a very 

narrow fashion. 

As I think Mr. Casey has pointed out, most foreign intelligence 

is gathered outside the scope of the Fourth Amendment or FISA 

because the target is an al Qaeda operative abroad. So this hypothetical that if you are targeting al Qaeda abroad and they called 

into the United States you would have to hang up the phone if 

FISA applied is simply wrong-headed. You have never had to have 

a warrant in those circumstances. 

But Congress decided to regulate a narrow portion of the inherent authority to gather foreign intelligence, namely when the target is an American citizen standing on American soil. It doesn’t say 

the President can’t gather foreign intelligence in those circumstances. It says we want an independent, neutral magistrate, 

as Senator Specter has said is important to safeguard the Fourth 

Amendment, to have some kind of check on the reasonableness of 

the executive branch’s interception, search or seizure. And going 

through that warrant requirement is simply a regulation, not an 

elimination, of the President’s gathering power in foreign intelligence realms. 

And with regard to speed and workability, all I can say with due 

respect to Mr. Turner is it was the Department of Justice itself, on 

July 31 of 2002, who said that FISA works beautifully; it is not a 

problem with going too slow. And I would trust their judgment, 

since they are operating on a day-to-day basis. And this was a 

statement made months and months after the warrantless surveillance program had begun. 

Senator LEAHY. Thank you. You anticipated my next comment. 

Of course, my concern and the concern of many of us here is we 

still don’t know, and with all due respect to the Gang of 8, they 

don’t know whether Americans’ e-mails are being opened, whether 

39

mail itself is being opened. We have asked that question and we 

don’t get an answer. It has been asked, certainly, in open session. 

I will let you draw your own conclusion whether it was asked in 

closed session, but I can tell you we don’t have the answer. 

Mr. Dean, you said something, and I was reading late last 

night—actually, I was reading two things. I was reading the statements of all of you that we had and I was also reading a biography 

of a former Senator from Vermont, Senator Flanders. You said at 

the end of your written statement that today it is very obvious that 

history is repeating itself. What did you mean by that? 

Mr. DEAN. I mean by that that we have entered a period where 

a President is pushing the envelope. He actually defying the Congress. Nixon writes in his memoir how he has thrown the gauntlet 

down after he has been reelected. I can recall well from my visits 

with people like Senator Sam Ervin, who were quite upset with his 

reorganization of the executive branch contrary to the desires of 

the Congress, he was testing, if you will, where he could take his 

policies and authorities. He found, however, that with a divided 

Government it was a little rougher road to hoe. The reason history 

is repeating itself is because there is no check, as there has been 

in the past. 

Senator LEAHY. Thank you very much. Mr. Chairman, thank you 

very much. As I explained to you earlier, at this point I am going 

to have to leave for other matters, but thank you. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator HATCH. 

Senator HATCH. Well, let me just say this, that Presidents may 

push the envelope because they believe they have certain powers 

to protect the American people. And in this particular case, 

wouldn’t he be tremendously criticized if he didn’t do everything he 

could to protect the American people? 

I don’t see any evidence at all that the President is defying Congress. My gosh, the President not only required certain procedural 

mechanisms and opinions of the Justice Department and others, 

but the President actually had them inform the FISA two chief 

judges, plus we have for years around here operating in intelligence ways by having the eight leaders in Congress in certain 

areas be the people who are informed. One reason for that is so 

that these very, very important, top secret matters do not get out 

and that they don’t, by getting out, undermine our country. 

Also, the quote that FISA works beautifully that was made predating the date that this program was started—all I can say is that 

it would be apparent to anybody that if we want a FISA approach, 

FISA would have to be amended. And the distinguished Chairman 

has been working very hard, and I think in an intelligent way to 

try and bring Congress and the executive together with an additional bit of legislation. 

Some of the statements here have been outrageous, but let me 

just say this. Mr. Casey, I didn’t get a chance to ask you a question. Do you agree with Mr. Dean’s assertion in a September 14, 

2001, article that counterterrorism is an executive function which 

the President does not need Congress to pursue? And do you agree 

with Mr. Dean’s assertion in his September 14, 2001, article that 

40

Article II, section 1, vests the President with power to respond to 

these terrorist attacks, whether or not Congress agrees with him? 

Mr. CASEY. Yes, Senator, I do. The President is vested by the 

Constitution with the whole executive authority of the United 

States and is Commander in Chief of the Armed Forces. He is entitled to deploy forces, repel attacks, and even to make attacks to defend the national interests of the United States. 

Senator HATCH. Well, the Feingold resolution makes certain 

statements about the President’s foreign intelligence surveillance 

program as grounds for the resolution’s conclusion that the President broke the law and therefore should be censured. In my opening statement, I said that many of these statements in the resolution are either highly debatable and some of them are absolutely 

false. 

I would like you to specifically address the following statement, 

in particular, quote, ‘‘Whereas the President’s inherent constitutional authority does not give him the power to violate the explicit 

statutory prohibition on warrantless wiretaps in the Federal Intelligence Surveillance Act of 1978,’’ unquote. 

Mr. CASEY. Well, Senator, I disagree with that. That gets us, of 

course, to the fundamental constitutional question that we so often 

face. At what point does the President’s exercise of authority run 

up against the Congress’s exercise of its authority? These things 

are often worked out in a political way. Many times, they are resolved by the courts. 

I don’t think either side here, if we were litigating this, has a 

slam-dunk. I think the President has very much the better of the 

argument, but I don’t think the other side’s argument is absurd. 

Senator HATCH. Mr. Turner, in the few minutes that I have, I 

expressed concern in my opening statement and in my statement 

to Mr. Casey that various statements in this censure resolution are 

either highly debatable or simply false. In your submitted testimony, you examined some of these statements. I think this is absolutely necessary, since these statements purport to be the premises 

for the conclusion that the President should be punished by censure for how he has conducted the war on terror. That is the whole 

point of this resolution. 

Could you please discuss your reaction to the statement that no 

Federal court has evaluated whether the President has inherent 

authority to authorize wiretaps without complying with the Foreign 

Intelligence Surveillance Act? What have the courts ruled in this 

area? What has the very court established by FISA ruled about the 

President’s inherent constitutional authority in this area? 

Mr. TURNER. This is the key and I mentioned it earlier. In 1978, 

in addition to creating the Foreign Intelligence Surveillance Court, 

Congress created the Foreign Intelligence Surveillance Court of Review that has three court of appeals judges who are appointed by 

the Chief Justice of the United States. And in their only decision 

in 2002, they noted that every Federal court that has considered 

this issue has held that the President has independent constitutional authority to engage in national security foreign intelligence 

wiretaps. And then the court went on to say we assume that is 

true, and if it is true, FISA could not take that power away, which 

41

is exactly the position that Griffin Bell, another former court of appeals judge, took during the Clinton administration. 

There are two themes I am hearing here today. One is that secrecy is evidence of duplicity, and the second one is that there can 

be no unchecked Executive powers. On the first one, on June 6, 

1944, the United States invaded Europe with our British allies on 

D-Day, and to conceal that operation from the American people the 

President and our military commanders put Lieutenant General 

George Patton in Dover, England, with a totally fictitious army, 

complete with inflatable tanks, to deceive the American people and 

the press and to keep them from knowing. 

Now, obviously, it had something to do with deceiving the German high command so more Americans would survive the attack 

at Omaha Beach and we might win the war. But the same logic 

that says the President did not announce this highly secret operation to the public, to the Congress, you know, seems to suggest 

that in wartime when you keep secrets, you know you are doing 

something evil. 

But more importantly, I just leave you—the most important Supreme Court case of all time was probably Marbury v. Madison. Just a brief quote: ‘‘By the Constitution of the United States, the 

President is invested with certain important political powers,’’ and 

one of those, I would argue—the core of that is controlling foreign 

intelligence—quote, ‘‘in the exercise of which he is to use his own 

discretion and is accountable’’—we keep hearing the word he has 

to be accountable—‘‘and is accountable only to his country and his 

political character’’—that is if he runs for reelection—‘‘and to his 

own conscience.’’ 

And Marshall went on to say these powers, quote, ‘‘being entrusted to the Executive, the decision of the Executive is conclusive;’’ that is to say Congress cannot check this power, nor can the 

courts. And the reason for that is because of the need for speed and 

dispatch and secrecy and unity of design. And that is why John Jay 

explained when the Constitution was being ratified that we have 

given the power of intelligence, you know, the protecting sources 

and methods—the President will be, quote, ‘‘able to manage the 

business of intelligence as prudence might suggest.’’ That is not 

ambiguous language. That was the original plan that comes from 

Article II, section 1, and when Congress usurps that power, Congress becomes the law-breaker. 

We heard Senator Leahy say nobody is above the law. Well, Congress is not above the law. We have a hierarchy. The Constitution 

comes first, and Congress could no more take the President’s intelligence power than it could pass a law telling the Supreme Court 

it must overrule Roe v. Wade. Even if it made funding contingent 

and said if the Court doesn’t strike Roe v. Wade or reverse it, no 

money could be made available, that would still be a breach of 

trust, a breach of duty and a violation of the Constitution. 

Senator HATCH. Mr. Chairman, I just want to compliment you for 

having this hearing, and Senator Feingold, whom I admire as a 

friend, but whom I violently disagree with on this issue, for always 

being as courteous and decent as he is. And I want to thank each 

of you. This has been an interesting hearing. It has been a worthwhile hearing. 

42

Mr. Chairman, I think you deserve a great deal of credit for 

doing this, and I also want to say the Chairman deserves a great 

deal of credit for how hard he is working to try and bring Congress 

and the executive together in a way that will resolve these difficulties, because the current FISA Act, I can tell you, doesn’t resolve 

them, and that is the problem. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

Before turning to Senator Feingold for the next round, let me ask 

you, Professor Turner, on the heels of your declaration that Congress has violated the law when you cite those legal issues that 

Congress has disagreed with, do you think Congress ought to be 

censured for violating the law as you articulate it? 

Mr. TURNER. Well, if you are going to— 

Chairman SPECTER. I want a yes or no answer. 

Mr. TURNER. Gee, that is hard. I stopped beating my wife. 

Chairman SPECTER. Well, then I withdraw the question. 

Mr. TURNER. I would say yes, yes, but not this Congress, the 

Congress that passed FISA in 1978. 

Chairman SPECTER. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. I want to thank 

Senator Hatch. Even when he violently disagrees, he is calm and 

I give him credit. 

I am very pleased that Mr. Dean finally had the chance to put 

on the record the history that he knows so well of what was going 

on with Watergate and the White House then and the fact that it 

did involve assertions of national security power. 

I wish Senator Graham were still here, not only because I have 

a lot of admiration for him, but I would like him to hear my feeling 

that if, in fact, this is an apples-and-oranges situation, which I 

think it is not, certainly the greater danger, the greater threat to 

our republic is with what is going on here. 

I mean, put this into context of the assertions of Executive power 

with regard to torture, the assertions of Executive power with regard to preemptive war, and put this together with it and what we 

have here, I think, is one of the greatest attempts to dismantle our 

system of Government that we have seen in the history of our 

country. That is exactly what is at stake here. Otherwise, I 

wouldn’t be talking about censure. 

The same thing goes for Senator Graham’s comments that we are 

having an honest and sincere debate about this. Again, I wish that 

had been true, but that is not the way the White House has conducted this. In fact, this assertion that was made that somehow the 

authorization of military force in Afghanistan was not a sincere argument—I don’t believe they believe it, not for 1 minute. And it 

was laughed out of this room, including by Senator Graham, because it is a bogus argument. 

That goes, Mr. Chairman, to the question of whether censure is 

appropriate. It has to do with whether or not, when this was revealed, there was a sincere attempt to come together by the President or whether there was conduct that was frankly, in my mind, 

inappropriate and disrespectful of the role of Congress and our system of Government. 

Mr. Fein, Mr. Casey’s testimony includes the following statement: ‘‘Few of the President’s critics have had the temerity to claim 

43

that he was required to obtain the FISA court’s permission to intercept and monitor al Qaeda communications outside of the United 

States,’’ unquote. Perhaps the reason they haven’t had the temerity 

to make that claim is because anyone familiar with FISA knows 

that the President doesn’t need to get a FISA warrant to conduct 

surveillance of terrorists overseas, foreign intelligence. He does 

need a warrant when he is targeting an American on American 

soil, which we believe is what the President’s program does. 

Why do you think supporters of the program persist almost everyday in suggesting to the public, which does not understand the 

law as well as some do here, that the administration had to violate 

FISA in order to do overseas surveillance? 

Mr. FEIN. I think they are trying to frighten the public into 

thinking that in the absence of this evasion of the Foreign Intelligence Surveillance Act, we couldn’t spy on al Qaeda abroad and 

intercept their communications. This is the signature hypothetical. 

If al Qaeda is calling into the United States, you expect us to stop 

listening if an American hangs up. That is insinuating that FISA 

would require that. The fact is it has never required it, it shouldn’t 

require it, and it never will require it. The Fourth Amendment 

does not apply outside the United States. 

Senator FEINGOLD. Precisely. This intentional distortion of what 

the law really is with regard to foreign intelligence is part of the 

reason why something like censure is necessary because there is a 

concerted effort to convince the American people that some of us 

here don’t believe that terrorists should be wiretapped. Every one 

of us does believe that. That is part of the misconduct that I see 

occurring here. 

Mr. Dean, you make an interesting point about the need for an 

institutional rather than a partisan response to the President’s actions, and I really do agree with you. I, of course, have been not 

surprised, but a little disappointed that my proposal has been characterized as partisan. My colleagues know on this Committee I am 

one of the least partisan Members of the Congress. Sometimes, I 

drive the Democrats crazy. 

Can you talk about the Watergate era and the importance of 

Members of Congress putting the good of the country before their 

partisan concerns in reacting to President Nixon’s wrongdoing? 

Mr. DEAN. Indeed. In fact, one of my points and one of my concerns and one of the reasons I traveled this distance to come and 

visit with you all and the Chairman is let’s say the Chairman’s bill 

does pass. Let’s say it passes the House as well. What concerns me 

will be the pattern that seems to be the prologue that if that law 

should be sent to the White House, while the signing ceremony is 

going on Dick Cheney is going to be drafting a signing statement 

that will indeed gut the law. 

This is a new development. We saw it with the torture amendments. We have seen it with other bills where the President says, 

yes, you can pass it, I haven’t exercised my veto because indeed I 

don’t have to, I am just going to ignore this law. That is not the 

sort of thing you can do with a censure. 

Senator FEINGOLD. Mr. Chairman, I will just ask one more question, if I could. 

Chairman SPECTER. Go ahead. 

44

Senator FEINGOLD. I want to read an excerpt for Mr. Schmidt 

from the now infamous Bybee torture memo. That is the 2002 Office of Legal Counsel memo that asserted such broad and extreme 

Executive power that once it was leaked, even the administration 

was basically forced to withdraw it. The memo says, quote, ‘‘In 

light of the President’s complete authority over the conduct of war, 

without a clear statement otherwise we will not read a criminal 

statute as infringing on the President’s ultimate authority in these 

areas,’’ unquote. 

Now, how is that legal argument which caused such outrage and 

led the Senate to vote 90 to 9 to prohibit our Government from engaging in torture any different than what the President is arguing 

now with regard to this NSA surveillance program? 

Mr. SCHMIDT. It is totally different. The argument that was made 

on torture, I thought, was a terrible argument. I thought so at the 

time. I think most lawyers thought so. I think part of the problem 

the administration has now, frankly, is that they made some terrible arguments in the past. That doesn’t mean they don’t have a 

good argument now. 

The argument over electronic surveillance is a very narrow argument. It comes down to the President’s authority to conduct surveillance on a foreign power which has attacked this country, is 

threatening to attack again, and comes down to the circumstances 

under which that surveillance can take place. It relies on established case law. It has nothing to do with the prior effort to defend 

torture under circumstances, or even redefine torture down somehow so it wouldn’t be real torture under circumstances where it 

was illegal. 

Senator FEINGOLD. If I could, Mr. Chairman, Mr. Fein? 

Mr. FEIN. I disagree. I think this is not a narrow argument or 

theory. Basically, the syllogism goes as follows: The President has 

inherent constitutional authority uncontrollable by Congress to 

gather foreign intelligence. One way to gather that is through electronic surveillance. Another way to gather that is through breaking 

and entering homes. Another way to gather that is through opening people’s mail. Another way to gather that is through torture. 

The theory that the President has advanced on electronic surveillance applies in spades to every one of those alternate methods. 

And when the President and his representatives have been asked, 

don’t you agree with that, they have not said no; they have simply 

said, well, we haven’t gotten that far yet. And they could get that 

far tomorrow. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. I will make a quick 

observation of what is my opinion about the whole issue. I think 

to say that there is a political or moral equivalent from a President 

breaking into one’s political opponent to find out what their political opponent may be up to or lying under oath in a private lawsuit—to say that that is a political or moral equivalent to this 

President’s decision to surveil the enemy, I think, is absurd. 

This is an honest debate where legitimate positions have been 

staked out about the role of a President in a time of war. I don’t 

think there has ever been an honest debate in this country that the 

45

President could lie under oath in a private lawsuit to help himself. 

I don’t think there has ever been an honest debate in this country 

that the President could authorize or condone, once he has found 

out about it, the breaking-in of one’s political opponent for national 

security reasons. Now, let’s have this honest debate. 

Mr. Turner, you seem to be advocating a position that to me goes 

too far. The inherent authority of the President, in my opinion, 

does have checks and balances, like Mr. Fein suggests. Let me ask 

you this question. Is there room for Congress to pass the Uniform 

Code of Military Justice in a time of war? 

Mr. TURNER. That is a wonderful question, Senator, because it 

really gets—there has been a lot of rhetoric about the President— 

Senator GRAHAM. Well, could you give me a wonderfully short 

answer? 

Mr. TURNER. It really is a key point about the President having 

unchecked power, but it is checked in certain areas. For example, 

in Article I, section 8, Congress has the power to define and punish 

offenses against the law of nations. That includes torture. It has 

the power to—the UCMJ is clearly authorized by Article I, section 

8. There is no question about it. 

Senator GRAHAM. Well, do you know the Attorney General would 

not concede that? 

Mr. TURNER. Well, I think that he is mistaken. 

Senator GRAHAM. And that goes to this whole debate. I asked the 

Attorney General of the United States, does the Congress have the 

legal authority under Article I powers, which I think is to regulate 

the land and naval forces—if you can’t regulate the discipline of 

your troops, what power do you have? So I disagree with the Attorney General. I believe, as you do, that the Uniform Code of Military Justice coexists with the inherent authority of the President 

and that we have the power to pass that statute and it is not an 

infringement of the President’s power. 

Mr. Fein— 

Mr. FEIN. Well, I certainly agree with your observation. 

Senator GRAHAM. No. I am going to ask you a question. I know 

you agree. Could the Congress require by statute that the President send over every target list before a military action is taken? 

Mr. FEIN. No. I think that gets into specific tactics. I don’t think 

that the Congress could tell the President to launch a rocket from 

one city to another. 

Senator GRAHAM. Could the Congress set troop strengths in 

terms of what is necessary to fight a war? 

Mr. FEIN. Yes, and I think the Congress did that in connection 

with the Vietnam War. 

Senator GRAHAM. OK. That, to me, illustrates this debate. There 

is a point in time where you would agree that the Congress steps 

too far, and approving targets interferes with the ability of the 

Commander in Chief to fight the war. Setting troop levels kind of 

goes to how much money we want to spend on a war and how long 

we want to be there. 

Now, let’s get to the FISA situation. Do you believe that the Supreme Court got it right when they said that the force resolution 

authorizing force in Afghanistan is authority to the President to detain someone as an enemy combatant? 

46

Mr. FEIN. Yes, and I think the distinction with FISA is very 

clear. 

Senator GRAHAM. OK. Now, I understand, but tell me how you 

get around this. 18 U.S.C. 4001 is a preexisting statute before the 

war. It says no citizen shall be imprisoned or otherwise detained 

by the United States except pursuant to an Act of Congress. That, 

to me, is similar to FISA in the area of detention. 

The Supreme Court said that the inherent authority of the President to detain a prisoner during war is really unquestioned. And 

if you have got any questions about it, the Congress gave him this 

authority when they said use all force necessary. So how were they 

able to get around 18 U.S.C. 4001? 

Mr. FEIN. Well, 4001, No. 1, does not specifically address what 

is to happen during wartime. FISA does. That is one distinction. 

Senator GRAHAM. Would you agree with me that there is case 

law out there questioning whether or not FISA would change if 

there was a war? 

Mr. FEIN. FISA addresses what is supposed to happen during 

war. 

Senator GRAHAM. Do you agree with me there is a court of appeals decision saying the question about how FISA applies in a declaration of war environment is different than 1978? 

Mr. FEIN. I can’t conceive how that argument can be made because there is explicit language in FISA that says when— 

Senator GRAHAM. I am not asking you if you could conceive of it. 

Didn’t the court raise that in their dicta in this opinion— 

Mr. FEIN. Hamdi? 

Senator GRAHAM [continuing]. That we are not addressing the 

issue of the inherent authority of the President to surveil the 

enemy in a time of war? 

Mr. FEIN. I am a not sure which opinion—is this the Hamdi v. 

Rumsfeld case you are referring to? 

Senator GRAHAM. No. I am talking about the FISA Court of Review. 

Mr. FEIN. The In re Sealed case? 

Senator GRAHAM. Yes. 

Mr. FEIN. That was dicta. It wasn’t seeking— 

Senator GRAHAM. But it was a legal thought thrown out suggesting—and I know my time is over—that we haven’t gotten to 

that question yet and it may have a different answer because FISA 

was passed in peacetime. Now, we are in war and the court is opining through dicta that that may be different. Do you just concede 

to me they are doing that? 

Mr. FEIN. They are suggesting that, but I would suggest this, Mr. 

Senator. At the time FISA was enacted, we were in a cold war 

where we could be destroyed instantly with Soviet missiles if we 

didn’t gather intelligence in advance—a danger far more momentous to the existence of the country than exists at present. 

Senator GRAHAM. I would end it with this. I understand, and 

really, actually, I share many of your concerns. But the whole idea 

that this is not an area where there is unsettled law, whether there 

is a legitimate debate—I come out where Mr. Schmidt said; I think 

this is a genuine, very narrow, focused question. I think the adminVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
47

istration has taken legal positions in the past that have gone too 

far. 

Chairman SPECTER. Senator Graham, may we continue this in 

the next round? 

Senator GRAHAM. Yes, sir. Thank you. 

Chairman SPECTER. We are going to have one more round. It has 

been a long hearing. We appreciate the patience and fortitude of 

the witnesses and, as I say, one more round and then we will bring 

the hearing to a close. We are now past the two-and-a-half-hour 

mark. 

Mr. Schmidt, I have legislation pending which would give to the 

FISA court jurisdiction to pass on the constitutionality of the President’s program, and it is structured because of the concerns about 

Congress leaking, just like the White House leaks, but the FISA 

court doesn’t leak. Courts, I think it is safe to say, don’t leak as 

a generalization. They have the expertise and experience to handle 

it. 

Do you think that legislation ought to be enacted? 

Mr. SCHMIDT. Yes, I do. I think it would be a good thing for the 

country. I think it would be a good thing for the President, although I don’t gather the President has yet come around to that 

point of view. Had that procedure been in place, it seems to me the 

President would have submitted this program to the court. Based 

on everything we know, everybody who has been fully briefed on 

it, the court would have said that is reasonable and we wouldn’t 

be having this hearing. 

Chairman SPECTER. Mr. Schmidt, the administration hasn’t said 

they don’t like it. They just haven’t said. 

Mr. SCHMIDT. Well, good. 

Chairman SPECTER. Mr. Casey, what do you think about the proposed legislation? 

Mr. CASEY. Well, Senator, I think it certainly has merit. I have 

looked at it. I think we all need to keep in mind that there have 

been a lot of constitutional issues through here in the last 30 years 

and I don’t remember FISA figuring in any of them. 

The executive branch has made clear it believes—and I think it 

is right—it continues to have inherent power. But it has used 

FISA. It used FISA right up until the point where it concluded that 

FISA no longer worked in a particular situation. To the extent, obviously, that Congress can now make it work, there is no reason 

to believe the executive branch won’t go back to using FISA. 

Chairman SPECTER. Mr. Schmidt, there has been other legislation introduced which would leave the administration free to conduct electronic surveillance without judicial approval for 45 days 

and, at the end of the 45 days, if there is sufficient evidence for 

probable cause, to go to the FISA court; if not, to go to the subcommittee on the Intelligence Committee. 

Do you think that is adequate to provide judicial review for executive authority on surveillance, search and seizure? 

Mr. SCHMIDT. No, I don’t. I think I get a lot more comfort having 

a court make an up-front decision that a program is constitutional. 

And it seems to me, as I say, it is in everyone’s interest, including 

the President and others in the executive branch, to get that determination made. 

48

Chairman SPECTER. Thank you, Mr. Schmidt. 

Mr. Casey, what do you think about legislation which would 

leave the surveillance to roam at large for 45 days and 45 days 

later, if there is insufficient evidence for securing a warrant, you 

go to the Subcommittee of Intelligence? 

Mr. CASEY. Well, Senator, that also would be another way to 

handle it. I mean, obviously, that doesn’t— 

Chairman SPECTER. Do you think it would be adequate? 

Mr. CASEY. I think it would be adequate to provide a check on 

the President to avoid potential abuses. The one thing it probably 

wouldn’t give you— 

Chairman SPECTER. Would it be sufficient under our tradition to 

have judicial review before you have a warrant where the legislation allows the administration to side-step the FISA court and go 

to the Intelligence Committee? We don’t know under the legislation 

what the Intelligence Committee is supposed to do. We know the 

Intelligence Committee is not a court. 

Mr. CASEY. Sure. Well, I don’t think we need to get the courts 

involved in every one of these decisions. If we do, though, we get 

a real advantage, and that is if you get an order from the FISA 

court, the evidence is admissible in a later criminal trial and that 

is real value. And so while I don’t think that the President needs 

to get an order in every case and I don’t think Congress should try 

to force him to do that, there is value in it. 

Chairman SPECTER. Professor Turner, let me put those two cases 

to you, if you can give me a brief answer. Do you think the legislation taking the administration program to the FISA court would be 

a good idea? 

Mr. TURNER. I think it is preferable to go to the FISA court than 

it is to go to the congressional committee. I think your legislation 

is quite good in many respects. The only thing I would add would 

be a recognition that the President does have some inherent constitutional power, and this is all the courts have said. That was 

Griffin Bell’s comment. There is nothing in this bill that recognizes 

that. 

Chairman SPECTER. Let me move on to one more question before 

my time expires. In a key ‘‘whereas’’ clause in Senator Feingold’s 

resolution, it says, quote, ‘‘Whereas the President’s inherent constitutional authority does not give him the power to violate the explicit statutory prohibition on warrantless surveillance in the Foreign Intelligence Surveillance Act of 1978.’’ Now, you have In re 

Sealed and you have Truong saying that the Constitution obviously 

trumps a statute. 

Do you think, Mr. Fein, that there are some circumstances 

where, depending on what the program is, the program would be 

within the President’s inherent constitutional authority, which 

would trump the FISA statute? 

Mr. FEIN. There is none that I can imagine. I think the President 

in times of war is given the 15-day window in which he can do 

what he thinks is necessary to save the Nation from exceptional 

danger. When Congress contemplated the wartime exigencies, initially they were giving him a 1-year period. They thought 15 days 

was sufficient to come to Congress. 

49

Congress certainly would be receptive to extending that period, 

if necessary. I think Congress showed in the aftermath of 9/11 they 

would do that, so that the kind of special emergency where Congress would be rigid against the President simply is unlikely to 

ever happen, although it is possible. 

Chairman SPECTER. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman, for your generosity in terms of the rounds, as well. 

First, on the point on Truong, of course, that case was based on 

facts that preceded the passage of the FISA law. I would like that 

on the record. Let me just point out that since we don’t have the 

contemporaneous Bybee memo, Mr. Fein, on this topic, we don’t 

know what the legal rationale for this program was when it was 

authorized originally. I think it is possible, if not likely, that the 

exact same argument was made in that memo that was made in 

the Bybee torture memo. 

Would you like to comment on that? 

Mr. FEIN. Yes. The Attorney General has stated that the administration’s reasoning with regard to the authority for the 

warrantless surveillance program has not been static. It has been 

dynamic, something like a living Constitution, which the administration has not applauded elsewhere. 

That assertion suggests that what was stated initially is not 

what is being stated now. We don’t know what was stated initially 

because as the Chairman has pointed out, there has been a resistance through the invocation of executive privilege even to talk; that 

is to say former Attorney General John Ashcroft, who was there at 

the time the program began. That leads to suspicion that this was 

something akin to the Bybee memo. 

Senator FEINGOLD. Not in the spirit of a living Constitution, but 

in the category of shifting justifications, I agree entirely with your 

conclusion that the argument for the legality of this program based 

on the authorization for use of military force is preposterous. I 

don’t know if the Chairman would use the same word, but he certainly agrees that it is not a basis for this program. 

Yet, many of the administration’s defenders persist in making 

this argument, including two of our witnesses here today, Mr. 

Casey and Professor Turner. The administration has refused to 

provide the contemporaneous legal memo, so I have no way of 

knowing. But I wonder whether this argument was even made at 

the time the program was first authorized. 

Can you talk for a minute about the significance of whether 

there is a statutory basis for this program, as opposed to relying 

solely on the notion of inherent authority under Article II? 

Mr. FEIN. Well, I think the reason why you would rely upon the 

statutory basis is a belief that your constitutional argument is 

very, very fragile. You ordinarily make your strongest argument 

first and secondary arguments follow. The administration has not 

made a primary argument that the President’s inherent constitutional power trumps and holds FISA unconstitutional. It is very 

striking. 

Some others in this Committee have made that argument, but 

the administration has not, and yet it is the executive branch. That 

50

is why I think they have reverted to this statutory because they 

fear they would lose clearly the Article II claim. 

One of the things that is somewhat glaring with regard to Senator Specter’s proposal is that everything that he is asking be 

done—judicial review of the legality of the warrantless surveillance 

program—could be done by the administration right now. They just 

need to go to the FISA court and say we are asking for a warrant 

and we are relying upon information we gathered under the 

warrantless surveillance program. That would then raise the question whether it could be admitted in seeking that kind of warrant. 

But the administration has evaded judicial review of its program, 

suggesting they are not confident of their theory. 

Senator FEINGOLD. Mr. Fein’s testimony here is critical to why 

censure is appropriate. This is exactly the pattern: first, a very 

brief effort to try to justify this under FISA, which nobody took seriously, then the resort to this idea, if you follow the press statements, that somehow this was authorized by the Afghanistan resolution. And then only when that failed were these rather extreme 

assertions of Executive power used. That, to me, suggests something inappropriate with regard to conduct concerning the role of 

Congress and the Executive. 

Mr. Dean, this morning a blogger named Glen Greenwald wrote 

about a 1969 article from Time magazine that quotes then-Attorney General John Mitchell giving reassurances about new surveillance powers. Here is what Mitchell said: ‘‘Any citizen of the 

United States who is not involved in some illegal activity has nothing to fear whatsoever.’’ Now, as Greenwald points out, those statements are remarkably similar to what the President and the Attorney General have said about the NSA program. 

People who actually don’t know anything about the program 

other than what has been reported publicly have repeated those assurances. I have heard it from some people back home: this program is very narrow; it only covers people who they have reason 

to believe are part of al Qaeda, et cetera. 

I have no reason to believe that the administration is not telling 

the truth in this case, but certainly our history has taught us, as 

Ronald Reagan famously said, trust, but verify. That is why, after 

the abuses of the Nixon era, Congress passed FISA so that a secret 

but independent court could evaluate Government wiretapping requests and make sure that these kinds of assurances are actually 

true. 

Would you say a bit, finally, to comment on the parallels here? 

Do you agree that testing these kinds of public assurances are exactly why we have the FISA law and why the administration must 

comply? 

Mr. DEAN. I believe the Attorney General, John Mitchell, made 

that statement shortly before the Keith case argument, in which 

the Justice Department relied on King George III, in which the 

court was very prompt to remind the Justice Department that one 

of the things we fought for in the Revolution was against 

warrantless surveillance. That message got through and they 

pulled back for a while. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Graham. 

51

Senator GRAHAM. Thank you, Mr. Chairman. We will talk about 

the DeWine-Graham bill in a moment and get some views on that 

because I want to explain it in terms of its entirety. We are debating about a solution between Senator Specter’s approach and our 

approach, and that is a healthy debate to have because I think we 

will be better off if we have constitutional checks and balances 

when it comes to administering this program. 

But let’s get back to the central point. I personally believe if you 

went the censure route, you would kill this program. Not only 

would you kill this program, which would hurt our National security interest, you would do a lot of damage to future Presidents because they could not go down a road of honest debate without facing extreme political consequences. As I said, the two other cases 

dealing with breaking into one’s political opponent and clearly 

lying under oath in a civil matter are not remotely similar to what 

we are talking about. 

Now, Mr. Fein, would you agree that the Supreme Court has 

used the force resolution passed to invade Afghanistan to justify 

the detaining of enemy combatants by the President? 

Mr. FEIN. Yes. They did that in the Hamdi case. 

Senator GRAHAM. The point I am trying to make is that it is 

clear that the force resolution was seen by the Supreme Court to 

be authorizing certain actions of the President. And I agree with 

the Chairman here that if you had asked me the day I voted in the 

House, did I intend for FISA to be repealed, I would have said no. 

But if you had asked me the day I voted in the House, did I intend 

for the President to be able to detain an enemy combatant or 

enemy prisoner, I would have said yes. 

If you had asked me the day I voted in the House, did I intend 

for the President to be able to surveil the enemy, I would have said 

yes. If you had asked me the day I voted in the House, did I mean 

for the President to be able to follow an American around, reading 

everything they write, listening to everything they say, without 

court supervision, believing they are cooperating with al Qaeda and 

no warrant is required, I would have said no. If you had asked me, 

did I want to impede the ability to surveil the enemy by having a 

bureaucratic nightmare called FISA, I would have said no. 

So here is what I am trying to say: I don’t believe you need a 

warrant to follow the enemy in a time of war. To me, that is inherent to fighting a war. But if the American Government believes 

that any Joe Doe out there is aiding and collaborating with the 

enemy, I think it is incumbent upon us to have that checked out 

by a court in a reasonable fashion. 

So my legislation says you don’t need a warrant when you are 

surveiling the enemy, but when a contact with an American citizen 

has been made, that would require a FISA warrant. You have to 

go get that FISA warrant. The problem here is that we don’t want 

to impede the ability to surveil the enemy, and I think an advisory 

opinion of the court alone is not a substitute. 

Congress needs to be involved here. Congress needs to set out in 

some reasonable fashion when you cross that line, and what we are 

proposing is that you have a statute that will allow the President 

to surveil the enemy without a warrant. And the only time you 

need a warrant is when there is a contact with an American citVerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC
52

izen, giving rise to a reasonable belief or probable cause that they 

may be helping the enemy. 

Here is an example of what I am trying to say. You could have 

a computer in Afghanistan that has 1,000 phone numbers in it, all 

American citizens. Do you need a warrant to monitor that phone 

number before a call is made, Mr. Fein? 

Mr. FEIN. Well, the standard that is set out by FISA which 

echoes the Fourth Amendment is the warrant is required when 

there is a reasonable expectation of privacy. If you are simply having a computer intercept certain things and a human being doesn’t 

understand the contents, I don’t think there is any case law that 

exists—that creates a reasonable expectation of privacy. 

It is the same way in which you can look at the outside of a letter, of an envelope and see who is it addressed to and what the return address is. That doesn’t mean you can look at the contents, 

so that I don’t think there is a problem— 

Senator GRAHAM. I agree with you totally. There is a conversation between someone in Kansas and someone in the Mideast, and 

that someone in the Mideast, unbeknownst to the person in Kansas, is a front person for al Qaeda trying to raise money, trying to 

finance the war. The deal is about wheat. The person in Kansas 

doesn’t know that the person in Afghanistan or some other Mideast 

country is actually a front person. 

Do you need a warrant to listen into that phone call as to whether or not it is about wheat? 

Mr. FEIN. If you are targeting the al Qaeda member abroad and 

you are making the interception of the transmission when it is outside the jurisdiction of the United States, you do not need a warrant. It is not covered by FISA, it is not covered by the Fourth 

Amendment. 

Chairman SPECTER. Senator Graham, would you care to take 2 

minutes to sum up? I am going to call on Senator Feingold for 2 

minutes to sum up. Do you care to use it? 

Senator GRAHAM. Thank you, Mr. Chairman. One, I want to compliment you for having this hearing, and if I have said anything 

that is rude to the witnesses, I apologize. This is an emotional 

area, but I feel really confident that by discussing this, we are 

stronger, not weaker. 

I think censure takes the discussion in the wrong area. It undermines the program, it sends the wrong signal to the enemy. But 

I stand ready, willing, and hopefully able to find some middle 

ground here where you allow a robust ability to surveil the enemy 

by the President as a wartime commander, but you never allow in 

this country the ability of the Government to follow an American 

citizen forever, unhindered, believing they are helping the enemy, 

because if you think I am helping the enemy if I am talking to 

somebody in the Mideast, you would be wrong. And I don’t think 

it is unfair to ask the Government to have their homework checked 

at some appropriate point when they are focusing on an American 

citizen on the other end of that call. You don’t have to do it right 

away, but you eventually have to do it. I don’t want any FBI agent 

to come to an American citizen’s door, after listening to them for 

a year and believing they are helping the enemy, without getting 

53

some third eye to look at this. I think that can happen and still 

save this program. 

Chairman SPECTER. Senator Feingold, you have two minutes if 

you would like to sum up. 

Senator FEINGOLD. I appreciate that, Mr. Chairman. Let me say 

if this were only an issue of the way the Chairman and Senator 

Lindsey Graham handle this issue, there wouldn’t be any need to 

talk about censure at all. Both of you address the issue and the arguments on the merits, and you say which ones you agree with and 

which ones you don’t. 

The problem here is that when this program was revealed, the 

White House took a different course. Had they said, look, this is 

a close case, we might have gone too far here, let’s work it out, that 

would be one thing. They chose the opposite. They chose to put forward an incredibly bogus argument about the authorization for 

military force, and then they tried an expanded doctrine of inherent power that frankly has no end that would essentially mean the 

Congress of the United States would not have much of a role in 

conducting its business. 

That is why, Mr. Chairman, I take the step of proposing censure. 

I don’t do it lightly. I do it with a sincere belief that if we do not 

assert ourselves as a Congress at this point, it will go down as one 

of the great losses for our system of Government. So I offer it in 

that spirit, I offer it looking for bipartisan support and I offer it 

in good faith. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Before taking my 2 minutes, without objection I want to put into the record a letter from Carl Llewellyn Professor from Chicago, Cass Sunstein, and to read briefly one paragraph which is his conclusion. He appears before this Committee 

a great deal. Quote, ‘‘There can be no doubt that the program has 

been subject to serious legal objections and that it is entirely legitimate for Congress to make a serious inquiry into those objections. 

But in the face of a legally controversial assertion of power by the 

President of the United States, the preferred course is to begin 

with a careful assessment of the underlying facts and the law, not 

to take the exceptionally rare course of censuring him,’’ close quote. 

Now, you can start my two minutes. 

The New York Times, which disclosed the program and has been 

very tough on the President, had this to say about Senator 

Feingold’s resolution, quote, ‘‘The censure proposal is a bad idea,’’ 

close quote. The San Diego Union Tribune called the censure resolution a, quote, ‘‘stunt that will accomplish nothing.’’ The Chicago 

Tribune commented, quote, ‘‘It is hardly the kind of act that would 

warrant censure,’’ close quote. The Boston Herald observed that, 

quote, ‘‘Democrats are ignoring the pointless effort to censure 

President Bush.’’ 

This hearing, I think, is important for the reason that it is a further exploration of the President’s inherent powers that we have to 

come to grips with, and with the authority of the Congress to legislate, which the Congress has constitutional authority to do on these 

subjects, but most of all the paramount authority of the courts to 

be the arbiter between the law enforcement official and the citizen. 

54

The Judiciary Committee can’t have any more hearings in March 

because March is over, but we may have set a record of a sort in 

having four of them. I was on the floor when Senator Feingold introduced his resolution because I wanted to utilize that as a forum 

to press the President to allow some judicial review. But as for the 

President’s conduct, you have this long resolution, but not a word 

about bad faith. And if you don’t assert bad faith, there is just no 

basis, it seems to me, for a censure resolution. 

I think this hearing has been very, very informative and constructive, and I thank all of you gentlemen for participating today. 

That concludes our hearing. 

[Whereupon, at 12:27 p.m., the Committee was adjourned.] 

[Submissions for the record follow.]

55


28341.001
56


28341.002
57


28341.003
58


28341.004
59


28341.005
60


28341.006
61


28341.007
62


28341.008
63


28341.009
64


28341.010
65


28341.011
66


28341.012
67


28341.013
68


28341.014
69


28341.015
70


28341.016
71


28341.017
72


28341.018
73


28341.019
74


28341.020
75


28341.021
76


28341.022
77


28341.023
78


28341.024
79


28341.025
80


28341.026
81


28341.027
82


28341.028
83


28341.029
84


28341.030
85


28341.031
86


28341.032
87


28341.033
88


28341.034
89


28341.035
90


28341.036
91


28341.037
92


28341.038
93


28341.039
94


28341.040
95


28341.041
96


28341.042
97


28341.043
98


28341.044
99


28341.045
100


28341.046
101


28341.047
102


28341.048
103


28341.049
104


28341.050
105


28341.051
106


28341.052
107


28341.053
108


28341.054
109


28341.055
110


28341.056
111


28341.057
112


28341.058
113


28341.059
114


28341.060
115


28341.061
116


28341.062
117


28341.063
118


28341.064
119


28341.065
120


28341.066
121


28341.067
122


28341.068
123


28341.069
124


28341.070
125


28341.071
126


28341.072
127


28341.073
128

Æ


28341.074