Russ Feingold - United States

"Exercising Congress's Constitutional Power to End a War"

Opening Statement of U.S. Senator Russ Feingold

Senate Judiciary Committee Hearing Exercising Congress's Constitutional Power to End a War, January 30, 2007

Good morning, and welcome to this hearing of the Senate Judiciary Committee entitled "Exercising Congress's Constitutional Power to End a War." We are honored to have with us this morning a distinguished panel of legal scholars to share their views on this very important and timely issue.

I thank Chairman Leahy for allowing me to chair this hearing. Let me start by making a few opening remarks, then I will recognize Senator Specter for an opening statement, and then we will turn to our witnesses.

It is often said in this era of ubiquitous public opinion polls that the only poll that really matters is the one held on election day. On November 7, 2006, we had such a poll, and all across this country, the American people expressed their opinion on the war in Iraq in the most significant and meaningful way possible -- they voted. And with those votes, they sent a clear message that they disagree with this war and they want our involvement in it to stop.

The President has chosen to ignore that message. So it is up to Congress to act.

The Constitution gives Congress the explicit power "[to] declare War," "[t]o raise and support Armies," "[t]o provide and maintain a Navy," and "[t]o make Rules for the Government and Regulation of the land and naval Forces." In addition, under Article I, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." These are direct quotes from the Constitution of the United States. Yet to hear some in the Administration talk, it is as if these provisions were written in invisible ink. They were not. These powers are a clear and direct statement from the founders of our republic that Congress has authority to declare, to define, and ultimately, to end a war.

Our founders wisely kept the power to fund a war separate from the power to conduct a war. In their brilliant design of our system of government, Congress got the power of the purse, and the President got the power of the sword. As James Madison wrote, "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded."

The President has made the wrong judgment about Iraq time and again, first by taking us into war on a fraudulent basis, then by keeping our brave troops in Iraq for nearly four years, and now by proceeding despite the opposition of the Congress and the American people to put 21,500 more American troops into harm's way.

If and when Congress acts on the will of the American people by ending our involvement in the Iraq war, Congress will be performing the role assigned it by the founding fathers - defining the nature of our military commitments and acting as a check on a President whose policies are weakening our nation.

There is little doubt that decisive action from the Congress is needed. Despite the results of the election, and two months of study and supposed consultation -- during which experts and members of Congress from across the political spectrum argued for a new policy -- the President has decided to escalate the war. When asked whether he would persist in this policy despite congressional opposition, he replied: "Frankly, that's not their responsibility."

Last week Vice President Cheney was asked whether the non-binding resolution passed by the Foreign Relations Committee that will soon be considered by the full Senate would deter the President from escalating the war. He replied: "It's not going to stop us."

In the United States of America, the people are sovereign, not the President. It is Congress' responsibility to challenge an administration that persists in a war that is misguided and that the country opposes. We cannot simply wring our hands and complain about the Administration's policy. We cannot just pass resolutions saying "your policy is mistaken." And we can't stand idly by and tell ourselves that it's the President's job to fix the mess he made. It's our job to fix the mess, and if we don't do so we are abdicating our responsibilities.

Tomorrow, I will introduce legislation that will prohibit the use of funds to continue the deployment of U.S. forces in Iraq six months after enactment. By prohibiting funds after a specific deadline, Congress can force the President to bring our forces out of Iraq and out of harm's way.

This legislation will allow the President adequate time to redeploy our troops safely from Iraq, and it will make specific exceptions for a limited number of U.S. troops who must remain in Iraq to conduct targeted counter-terrorism and training missions and protect U.S. personnel. It will not hurt our troops in any way - they will continue receiving their equipment, training and salaries. It will simply prevent the President from continuing to deploy them to Iraq. By passing this bill, we can finally focus on repairing our military and countering the full range of threats that we face around the world.

There is plenty of precedent for Congress exercising its constitutional authority to stop U.S. involvement in armed conflict.

In late December 1970, Congress prohibited the use of funds to finance the introduction of United States ground combat troops into Cambodia or to provide U.S. advisors to or for Cambodian military forces in Cambodia.

In late June 1973, Congress set a date to cut off funds for combat activities in South East Asia. The provision read, and I quote:

"None of the funds herein appropriated under this act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other act may be expended for such purpose."

More recently, President Clinton signed into law language that prohibited funding after March 31, 1994, for military operations in Somalia, with certain limited exceptions. And in 1998, Congress passed legislation including a provision that prohibited funding for Bosnia after June 30, 1998, unless the President made certain assurances.

Our witnesses today are well aware of this history, and I look forward to hearing their analysis of it as they discuss Congress's power in this area. They are legal scholars, not military or foreign policy experts. We are here to find out from them not what Congress should do, but what Congress can do. Ultimately, it rests with Congress to decide whether to use its constitutional powers to end the war.

The answer should be clear. Since the President is adamant about pursuing his failed policies in Iraq, Congress has the duty to stand up and use its power to stop him. If Congress doesn't stop this war, it's not because it doesn't have the power. It's because it doesn't have the will.

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Bush Censure Resolution
Senator Russ Feingold - March 13, 2006

Mr. President, when the President of the United States breaks the law, he must be held accountable. That is why today I am introducing a resolution to censure President George W. Bush.

The President authorized an illegal program to spy on American citizens on American soil, and then misled Congress and the public about the existence and legality of that program. It is up to this body to reaffirm the rule of law by condemning the President's actions.

All of us in this body took an oath to support and defend the Constitution of the United States and bear true allegiance to the same. Fulfilling that oath requires us to speak clearly and forcefully when the President violates the law. This resolution allows us to send a clear message that the President's conduct was wrong.

And we must do that. The President's actions demand a formal judgment from Congress.

At moments in our history like this, we are reminded why the founders balanced the powers of the different branches of government so carefully in the Constitution. At the very heart of our system of government lies the recognition that some leaders will do wrong, and that others in the government will then bear the responsibility to do right.

This President has done wrong. This body can do right by condemning his conduct and showing the people of this nation that his actions will not be allowed to stand unchallenged.

To date, members of Congress have responded in very different ways to the President's conduct. Some are responding by defending his conduct, ceding him the power he claims, and even seeking to grant him expanded statutory authorization powers to make his conduct legal. While we know he is breaking the law, we do not know the details of what the President has authorized or whether there is any need to change the law to allow it, yet some want to give him carte blanche to continue his illegal conduct. To approve the President's actions now, without demanding a full inquiry into this program, a detailed explanation for why the President authorized it, and accountability for his illegal actions, would be irresponsible. It would be to abandon the duty of the legislative branch under our constitutional system of separation of powers while the President recklessly grabs for power and ignores the rule of law.

Others in Congress have taken important steps to check the President. Senator Specter has held hearings on the wiretapping program in the Judiciary Committee. He has even suggested that Congress may need to use the power of the purse in order to get some answers out of the Administration. And Senator Byrd has proposed that Congress establish an independent commission to investigate this program.

As we move forward, Congress will need to consider a range of possible actions, including investigations, independent commissions, legislation, or even impeachment. But, at a minimum, Congress should censure a president who has so plainly broken the law.

Our founders anticipated that these kinds of abuses would occur. Federalist Number 51 speaks of the Constitution's system of checks and balances:

"It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Mr. President, we are faced with an executive branch that places itself above the law. The founders understood that the branches must check each other to control abuses of government power. The president's actions are such an abuse, Mr. President. His actions must be checked, and he should be censured.

This President exploited the climate of anxiety after September 11, 2001, both to push for overly intrusive powers in the Patriot Act, and to take us into a war in Iraq that has been a tragic diversion from the critical fight against al Qaeda and its affiliates. In both of those instances, however, Congress gave its approval to the President's actions, however mistaken that approval may have been.

That was not the case with the illegal domestic wiretapping program authorized by the President shortly after September 11th. The President violated the law, ignored the Constitution and the other two branches of government, and disregarded the rights and freedoms upon which our country was founded. No one questions whether the government should wiretap suspected terrorists. Of course we should, and we can under current law. If there were a demonstrated need to change that law, Congress could consider that step. But instead the President is refusing to follow that law while offering the flimsiest of arguments to justify his misconduct. He must be held accountable for his actions.

The facts are straightforward: Congress passed the Foreign Intelligence Surveillance Act, known as "FISA", nearly 30 years ago to ensure that as we wiretap suspected terrorists and spies, we also protect innocent Americans from unjustified government intrusion. FISA makes it a crime to wiretap Americans on U.S. soil without the requisite warrants, and the President has ordered warrantless wiretaps of Americans on U.S. soil. The President has broken that law, and that alone is unacceptable. But the President did much more than that.

Not only did the President break the law, he also actively misled Congress and the American people about his actions, and then, when the program was made public, about the legality of the NSA program.

He has fundamentally violated the trust of the American people.

The President's own words show just how seriously he has violated that trust.

We now know that the NSA wiretapping program began not long after September 11th. Before the existence of this program was revealed, the President went out of his way in several speeches to assure the public that the government was getting court orders to wiretap Americans in the United States - something that he now admits was not the case.

On April 20, 2004, for example, the President told an audience in Buffalo that: "Any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order. Nothing has changed, by the way."

In fact, a lot had changed, but the President wasn't being upfront with the American people.

Just months later, on July 14, 2004, in my own state of Wisconsin, the President said that: "Any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order."

Last summer, on June 9, 2005, the President spoke in Columbus, Ohio, and again insisted that his administration was abiding by the laws governing wiretaps. "Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S."

In all of these cases, the President knew he wasn't telling the complete story. But engaged in tough political battle during the presidential campaign, and later over Patriot Act reauthorization, he wanted to convince the public that a systems of checks and balances was in place to protect innocent people from government snooping. 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.

This conduct is unacceptable. The President had a duty to play it straight with the American people. But for political purposes, he ignored that duty.

After a New York Times story exposed the NSA program in December of last year, the White House launched an intensive effort to mislead the American people yet again. No one would come to testify before Congress until February, but the President's surrogates held press conferences and made speeches to try to convince the public that he had acted lawfully.

Most troubling of all, the President himself participated in this disinformation campaign. In the State of the Union address, he implied that the program was necessary because otherwise the government would be unable to wiretap terrorists at all. That is simply untrue. In fact, nothing could be further from the truth. You don't need a warrant to wiretap terrorists overseas - period. You do need a warrant to wiretap Americans on American soil and Congress passed FISA specifically to lay out the rules for these types of domestic wiretaps.

FISA created a secret court, made up of judges who develop national security expertise, to issue warrants for surveillance of suspected terrorists and spies. These are the judges from whom the Bush Administration has obtained thousands of warrants since 9/11. They are the judges who review applications for business records orders and wiretapping authority under the Patriot Act. The Administration has almost never had a warrant request rejected by those judges. It has used the FISA Court thousands of times, but at the same time it asserts that FISA is an "old law" or "out of date" in this age of terrorism and can't be complied with. Clearly, the Administration can and does comply with it - except when it doesn't. Then it just arbitrarily decides to go around these judges, and around the law.

The Administration has said that it ignored FISA because it takes too long to get a warrant under that law. But we know that in an emergency, where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits the wiretap to be executed immediately as long as the government goes to the court within 72 hours. The Attorney General has complained that the emergency provision does not give him enough flexibility, he has complained that getting a FISA application together or getting the necessary approvals takes too long. But the problems he has cited are bureaucratic barriers that the executive branch put in place, and could remove if it wanted.

FISA also permits the Attorney General to authorize unlimited warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA required by a wartime emergency. That is the time period that Congress specified. Yet the President thinks that he can do this indefinitely.

The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001. Mr. President, that is ridiculous. Members of Congress did not pass this resolution to give the President blanket authority to order warrantless wiretaps. We all know that. Anyone in this body who would tell you otherwise either wasn't here at the time or isn't telling the truth. We authorized the President to use military force in Afghanistan, a necessary and justified response to September 11. We did not authorize him to wiretap American citizens on American soil without going through the process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of terrorists - with the approval of a judge. That is why both Republicans and Democrats have questioned this theory.

This particular claim is further undermined by congressional approval of the Patriot Act just a few weeks after we passed the Authorization for the Use of Military Force. The Patriot Act made it easier for law enforcement to conduct surveillance on suspected terrorists and spies, while maintaining FISA's baseline requirement of judicial approval for wiretaps of Americans in the U.S. It is ridiculous to think that Congress would have negotiated and enacted all the changes to FISA in the Patriot Act if it thought it had just authorized the President to ignore FISA in the AUMF.

In addition, in the intelligence authorization bill passed in December 2001, we extended the emergency authority in FISA, at the Administration's request, from 24 to 72 hours. Why do that if the President has the power to ignore FISA? That makes no sense at all.

The President has also said that his inherent executive power gives him the power to approve this program. But here the President is acting in direct violation of a criminal statute. That means his power is, as Justice Jackson said in the steel seizure cases half a century ago, "at its lowest ebb." A letter from a group of law professors and former executive branch officials points out that "every time the Supreme Court has confronted a statute limiting the Commander-in-Chief's authority, it has upheld the statute." The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any pre-existing inherent authority of the President. As the 1978 Senate Judiciary Committee report stated, FISA "recognizes no inherent power of the president in this area." And "Congress has declared that this statute, not any claimed presidential power, controls." Contrary to what the President told the country in the State of the Union, no court has ever approved warrantless surveillance in violation of FISA.

The President's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless.

But it is one thing to make a legal argument that has no real support in the law. It is much worse to do what the President has done, which is to make misleading statements about what prior Presidents have done and what courts have approved, to try to make the public believe his legal arguments are much stronger than they are.

For example, in the State of the Union, the President argued that federal courts have approved the use of presidential authority that he was invoking. I asked the Attorney General about this when he came before the Judiciary Committee, and he could point me to no court - not the Supreme Court or any other court - that has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps. Not one court. The Administration's effort to find support for what it has done in snippets of other court decisions would be laughable if this issue were not so serious.

In the same speech, the President referred to other Presidents in American history who cited executive authority to order warrantless surveillance. But of course, those past presidents - like Wilson and Roosevelt - were acting before the Supreme Court decided in 1967 that our communications are protected by the Fourth Amendment, and before Congress decided in 1978 that the executive branch could no longer unilaterally decide which Americans to wiretap. I asked the Attorney General about this issue when he testified before the Judiciary Committee. And neither he nor anyone in the Administration has been able to come up with a single prior example of wiretapping inside the United States since 1978 that was conducted outside FISA's authorization.

So the President's arguments in the State of the Union were baseless, and it is unacceptable that the President of the United States would so obviously mislead the Congress and American public.

The President also has argued that periodic internal executive branch review provides an adequate check on the program. He has even characterized this periodic review as a safeguard for civil liberties. But we don't know what this check involves. And we do know that Congress explicitly rejected this idea of unilateral executive decision-making in this area when it passed FISA.

Finally, the President has tried to claim that informing a handful of congressional leaders, the so-called Gang of Eight, somehow excuses breaking the law. Of course, several of these members said they weren't given the full story. And all of them were prohibited from discussing what they were told. So the fact that they were informed under these extraordinary circumstances does not constitute congressional oversight, and it most certainly does not constitute congressional approval of the program.

Indeed, it doesn't even comply with the National Security Act, which requires the entire memberships of the House and Senate Intelligence Committee to be "fully and currently informed of the intelligence activities of the United States." Nor does the latest agreement to allow a seven-member subcommittee to review the program comply with the law. Granting a minority of the committee access to information is inadequate and still does not comply with the law requiring that the full committee be kept fully informed.

In addition, we now know that some of the Gang of Eight expressed concern about the program. The Administration ignored their protests. One of the eight members of Congress who has been briefed about the program, Congresswoman Jane Harman, ranking member of the House Intelligence Committee, has said she sees no reason why the Administration cannot accomplish its goals within the law as currently written.

None of the President's arguments explains or excuses his conduct, or the NSA's domestic spying program. Not one. It is hard to believe that the President has the audacity to claim that they do.

And perhaps that is what is most troubling here, Mr. President. Even more troubling than the arguments the President has made is what he relies on to make them convincing - the credibility of the office of the President itself. He essentially argues that the American people should trust him simply because of the office he holds.

But Presidents don't serve our country by just asking for trust, they must earn that trust, and they must tell the truth.

This President hides behind flawed legal arguments, and even behind the office he holds, but he cannot hide from what he has created: nothing short of a constitutional crisis. The President has violated the law, and Congress must respond. Congress must investigate and demand answers. Congress should also determine whether current law is inadequate and address that deficiency if it is demonstrated. But before doing so, Congress should ensure that there is accountability for authorizing illegal conduct.

A formal censure by Congress is an appropriate and responsible first step to assure the public that when the President thinks he can violate the law without consequences, Congress has the will to hold him accountable. If Congress does not reaffirm the rule of law, we will create another failure of leadership, and deal another blow to the public's trust.

The President's wrongdoing demands a response. And not just a response that prevents wrongdoing in the future, but a response that passes judgment on what has happened. We in the Congress bear the responsibility to check a President who has violated the law, who continues to violate the law, and who has not been held accountable for his actions.

Passing a resolution to censure the President is a way to hold this President accountable. A resolution of censure is a time-honored means for the Congress to express the most serious disapproval possible, short of impeachment, of the Executive's conduct. It is different than passing a law to make clear that certain conduct is impermissible or to cut off funding for certain activities. Both of those alternatives are ways for Congress to affect future action. But when the President acts illegally, he should be formally rebuked. He should be censured.

The founders anticipated abuses of executive power by creating a balance of powers in the Constitution. Supporting and defending the Constitution, as we have taken an oath to do, require us to preserve that balance, and to have the will to act. We must meet a serious transgression by the President with a serious response. We must work, as the founders urged us in Federalist Number 51, to control the abuses of government.

The Constitution looks to the Congress to right the balance of power. The American people look to us to take action, to speak out, with one clear voice, against wrongdoing by the President of the United States. In our system of government, no one, not even the President, is above the law.

Mr. President, I ask unanimous consent that the text of the resolution be printed in the Record following my remarks. I yield the floor.

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The Lone Patriot

Russ Feingold's courage needs to be honored, not by celebrating him as a brave loner, but by following his leadership.

by Robert Kuttner

The American Prospect magazine online, www.prospect.org/, February 21, 2006

The other day, editors of the American Prospect interviewed the Senate Democratic leader, Harry Reid. I pressed Reid about the difficulty that Democrats were having mounting a unified opposition to President Bush, even on issues like the badly bungled Medicare prescription drug program.

Reid did not respond directly on privatized Medicare drugs, where his caucus is divided. Instead, the Minority Leader invoked the bravery of Senator Russ Feingold of Wisconsin.

Reid said, "An example of how people really appreciate your standing for what you believe is Russ Feingold, the only person [in the Senate] to vote against the Patriot Act -- the only person. The Republicans in 2004 spent tons of money going after him on that one issue, and it didn't matter because people believed that Russ Feingold did it because he thought it was the right thing to do." Indeed, last year, when John Kerry carried Wisconsin by a bare 12,000 votes, Feingold sailed to re-election by over 330,000 votes. "I so admire Russ Feingold," Reid added.

The vote for the so-called Patriot Act, giving the executive branch unprecedented investigative powers to override traditional liberties, came in the hysterical wake of 9-11. Congress at least had the wit to insist that the act be reviewed after five years.

Now, the Patriot Act is about to be extended, with only the most trivial sops to civil liberties. And guess who is all alone, yet again?

Senator Russ Feingold.

When Democrats agreed to support an extension making only superficial changes, Feingold vowed to filibuster. On Thursday, the Senate voted to end debate. Exactly two other senators voted with Feingold. One was octogenarian Robert Byrd of West Virginia, who carries a copy of the Constitution around in his pocket. The other was the flinty former Republican Jim Jeffords of Vermont, the Senate's lone independent.

Harry Reid, who so admires Russ Feingold's courage, left Feingold all alone yet again.

The Patriot Act is a long-standing wish list on the part of prosecutors and spymasters who would sacrifice liberties to needless short-cuts: warrant-less wiretaps; "sneak and peak" searches where the target doesn't even learn of the search; gag-orders on recipients who are compelled to produce confidential medical and business records; fishing expeditions in libraries; and a great deal more mischief that violates the intent of the Fourth Amendment prohibition against unreasonable searches and seizures, making Americas less free but no more secure against terrorist attack.

But think of all we've learned since 9-11. For starters, we learned that 9-11 happened mainly because the Bush Administration was otherwise engaged. As the testimony of Richard Clarke and others made palpably clear, the administration was obsessed with Iraq, and spent Bush's first nine months ignoring escalating warnings of an imminent al-Qaeda attack. Having the Patriot Act on the books pre-9-11 wouldn't have helped, given the administration's failure to connect dots that were known under existing surveillance law.

Most pointedly, we've learned that Bush feels free to disregard what Congress permits. The original Foreign Intelligence Surveillance Act (FISA) of 1978 gave the government expansive surveillance powers for national security purposes, but retained higher standards of procedure and proof for intelligence data used in prosecutions. It was the product of lengthy hearings and careful compromise.

The Patriot Act blew a big hole in those protections. But even so, President Bush, in declaring that he can do whatever wishes as commander in chief, including secret and illegal taps of Americans, doesn't feel constrained by either Act. Presumably this war power could also include mass round-ups, permanent detentions, summary executions, anything at all.

What better moment to reign in Bush's extra-constitutional power-grab than at a moment when the Patriot Act is up for review? But, no. That might seem "un-Patriotic" (get it?) As Feingold recently declared, "If Democrats aren't going to stand up to an executive who disdains the other branches of government and doesn't worry about trampling on the rights of innocent Americans, what do we stand for?"

Good question. As Harry Reid correctly observes, Bush can wave the bloody shirt of 9-11 all he wants; voters don't punish legislators like Feingold who stand up for principle. One such principle, surely, is that this nation must remain a constitutional democracy. That notion is also good politics. It has been since 1789.

Feingold's courage needs to be honored, not by celebrating him as a brave loner, but by following his leadership. Legislators of both parties need to preserve our liberties, despite ominous claims of permanent war and unchecked power. If not, God save the Republic.

Robert Kuttner is co-editor of The American Prospect. This column originally appeared in The Boston Globe.

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