Date: 2006-06-20
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. Mr. Chairman. I move to strike the requisite number of words. Mr. Chairman. I rise in opposition to this amendment. There has been a lot of talk about following the law. People seem to ignore what Griffin Bell said at the time the Carter administration brought this bill before the Congress .to be passed into law. At that time he very carefully said that enactment of FISA did not exclude the authority the President has under the Constitution. We have heard on this floor about illegal acts. I would remind my colleagues that the supreme law of the land is the Constitution. and the President has inherent authority under Article 1I of the Constitution in this area. We may not like it. but the fact of the matter is that is one of the reasons you have elections for a President. to have the authority and the power that he has under the Constitution. The vesting clause of Article II of the Constitution which gives the President executive authority. coupled with his authority as Commander in Chief of the Armed Forces. forms the basis for the surveillance of al Qaeda members and those who are affiliated with al Qaeda. The Presidents actions are certainly consistent with the Founding Fathers. as expressed in John Jays observation in Federalist Paper No. 64: "The President . . . will be able to manage the business of intelligence in such manner as prudence may suggest." An examination of historical records makes clear that the Founding Fathers intended the President to have primary. if not exclusive. control over the business of intelligence. We may not like it. but that is what the Constitution establishes. We may have a FISA law. but that does not restrict the President if. in fact. he has inherent authority under the Constitution. The argument that the President has somehow violated the law misunderstands that the Constitution is the supreme law of the land. Congress has no more authority to intrude on the executive authority of the President than the President does on the enumerated authority of the Congress. As James Wilson argued during the ratification debate in his own home State of Pennsylvania: "The President of the United States can shield himself and refuse to carry into effect an act of Congress that violates the Constitution." In the same context. John Jay points out in Federalist 64 that "it surely does not follow that because they have given the power of making laws to the Legislature. that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected." The United States Supreme Court summed it up well in Ex parte Miligan: "Neither can the President in war more than in peace intrude upon the proper authority of Congress. nor Congress upon the proper authority of the President. Both are servants of the people. whose will is expressed in the fundamental law." It is interesting to note for those who have talked about historical record that the First Congress. which created the Department of Treasury and the Departments of War and Foreign Affairs. gave Congress access to the records and papers of the Treasury Department. but not to the Departments of Foreign Affairs and War. It is clear that the power of the President visavis Congress was broader with respect to foreign affairs than it was in the domestic realm of governance. We may not like it. but that is what the Constitution says. According to Madison. the ultimate check on Presidential power possessed by the Congress rests with the "first principle in free government." According to John Marshall in Marbury v. Madison. the limits on such Presidential authority must be found elsewhere in the Constitution itself. Look. we ought to look at what Justice White observed in his concurring opinion in the Katz decision. These are the words of Justice White: "Wiretapping to protect the security of the Nation has been authorized by successive Presidents." In other words. it did not start with this administration. He said. "The present administration would apparently save national security cases from restrictions against wiretapping." Again. Justice Whites words: "We should not require the warrant procedure and the magistrates judgment if the President of the United States or his chief legal officer. the Attorney General. has considered the requirements of national security and authorized electronic surveillance as reasonable." As explained publicly by the President. he followed the prescription of Justice White. He has personally had handson over this. He has had his Attorney General with handson authority over this. But then in addition. he did notify the Congress. He notified the leadership of the House and the Senate. He notified the leadership of the House and the Senate committees of jurisdiction. No. he did not notify all of us. but he comported with the law and the interpretation of the Constitution suggested by Justice White. I would suggest if one looks up the definition of the word "moderate" in Websters Dictionary. you would find the picture of Justice White. He started the middle ground on all of this. So I would suggest. as we look at this. we understand that we may have a debate about how the President has done it.but to suggest that what he has done is unlawful or illegal does not recognize either the Constitution or the comments of the Founding Fathers in support of the Constitution.