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http://www.afterdowningstreet.org/?q=node/7138Congresswoman Maxine Waters, Chair of Out of Iraq Caucus, Is Circulating This Letter to Her Colleagues: Help Her! Submitted by davidswanson on Wed, 2006-01-25 18:23. Congress Send this to your congress member. January 25, 2006 Oppose warrantless spying on innocent American citizens! Dear Colleague, I invite you to join me on a letter to President Bush opposing the National Security Administration (NSA) domestic surveillance program that he ordered without judicial warrant and disavowing his interpretation of prior Congressional authority to do so. The Department of Justice issued a white paper on January 19, 2006, enumerating the President’s legal justifications for the NSA program. The white paper states that Congress specifically gave the President unlimited authority when it passed the Authorization for Use of Military Force (AUMF), on September 14, 2001 and which became law on September 18, 2001. The NSA surveillance program remains largely secret due to its highly classified nature. Nevertheless, “officials familiar with it say the NSA eavesdrops without warrants on up to 500 people in the United States at any given time.” Some reports indicate that the total number of people monitored domestically has reached into the thousands, while others indicate that significantly more people have been spied upon. These acts have generated the concern of members of the Foreign Intelligence Surveillance Act (“FISA”) court as to the Administration’s apparent circumvention of the law. “Several judges on said they want to hear directly from administration officials why President Bush believed he had the authority to order, without the Court’s permission, wiretapping of some phone calls and e-mails after the Sept. 11, 2001, attacks.” After assessing the NSA program, judges on the 11-member panel have expressed disapproval and sentiments that it was “legally questionable and may have tainted the FISA Court’s work.”
This surveillance program contravenes the U.S. Constitution and prior Supreme Court decisions. The Steel Seizure Case and its progeny establish that “Congress has not lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution ‘in the Government of the United States, or any Department or Officer thereof.’” Furthermore, the Supreme Court in Katz v. United States held that the Fourth Amendment mandates use of the judicial process and that searches conducted outside this process, without prior approval by a judge or magistrate, are per se unreasonable, subject to very narrow exceptions irrelevant to this circumstance.
Despite the clear legal uncertainty that exists relative to whether this kind of domestic surveillance program violates the U.S. Constitution and the individual rights of the American people, there have been no congressional hearings to review the constitutionality or to determine whether this program should be authorized. Furthermore, in the context of discussing the legality of roving wiretaps under the USA PATRIOT Act, the President has already averred that “a wiretap requires a court order … constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”
Therefore, I ask that you join me in sending the following letter to President Bush that makes it clear that Congress has not, either expressly or implicitly, given authority to conduct electronic surveillance of the American people without issuance of a judicial warrant. Please contact me directly or Dana Thompson at (202) 225-2201 or Dana.Thompson@mail.house.gov by Monday, January 30, 2006, COB to sign this important letter.
Sincerely,
Maxine Waters
Member of Congress
__________
Pub. L. 107-40 (9/18/2001).
Eric Lichtblau & James Risen, Spy Agency Mined Vast Data Trove, Officials Report, N.Y. TIMES, Dec. 23, 2005, at 1.
Id.
Carol D. Leonnig & Dafna Linzer, Judges on Surveillance Court to be Briefed on Spy Program, WASH. POST, Dec. 22, 2005, at A1.
Carol D. Leonnig & Dafna Linzer, Spy Court Judge Quits in Protest, WASH. POST, Dec. 21, 2005, at A1.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Id. at 589.
389 U.S. 347 (1967).
President George W. Bush, Remarks (April 20, 2004) (emphasis added), available at http://www.whitehouse.gov/news/releases/2004/04/print/20040420 2.html.
__________
Dear Mr. President:
Seven days after our country was attacked on September 11, 2001, we, as Members of Congress, utilized our authority under the Constitution and granted the United States the authority to use military force against those who launched attacks against the United States. In recent weeks, this authorization, which is codified as Public Law 107-40 and hereinafter referred to as the AUMF, has been the subject of debate. The debate has centered around the legislative intent of this authorization and whether it authorized, implicitly or explicitly, the use of warrantless surveillance of American citizens on American soil.
During your press conference on December 19, 2005, you stated that you were granted the legal authority to authorize the interception of telephone calls and other communications without a warrant by Congress pursuant to the AUMF. Since that time, both you and the Vice President have repeated that justification. Moreover, in the document titled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” issued by the Department of Justice on January 19, 2006, the attorneys for the Department make a seven page argument that the “AUMF confirms and supplements the President’s inherent power to use warrantless surveillance against the enemy in the current armed conflict.” The document goes on to state that “he text of the AUMF demonstrates . . . that Congress authorized the President to conduct warrantless electronic surveillance against the enemy.” This argument suggests that the AUMF gave you unlimited authority to bypass existing laws and belies the effort that we took not to make any express statements that could be construed as expanding executive powers in excess of the U.S. Constitution and existing law.
The NSA Surveillance program remains largely secret due to its highly classified nature. However, officials familiar with it say that the NSA eavesdrops without warrants on up to 500 people in the United States at any given time and some reports indicate that the total number of people monitored domestically has reached into the thousands. This program has monitored American citizens in the exercise of their First Amendment rights, with the Fourth Amendment expectation of privacy, and who have not been identified as “the enemy.”
At no point during the floor debate of the AUMF Resolution was there any discussion that the authorization to use military force would extend to the use of warrantless searches and vest you with the broad authority to intercept telephone calls and other electronic communications of American citizens on American soil without first obtaining a warrant. To the contrary, it was stated during the debate that the authorization “provides no new or additional grants of power to the President.”
It is our duty to uphold the provisions of the U.S. Constitution, preserve the system of checks and balances between branches of our Government, and to protect the rights of the American people to the greatest extent possible. We stand firm on our commitment to protect the United States from terrorist attacks and will continue to exercise our legislative responsibility to support any lawful means of preventing any future terrorist activity. However, we feel that it is our duty to clarify the mischaracterization of our actions. We, the undersigned Members of Congress, did not intend for the AUMF to be used as justification for programs such as the one currently in use by the NSA. We therefore strongly oppose any statement indicating that our actions granted you the power to authorize warrantless electronic surveillance. Any statements made by you or other members of the Administration, including Department of Justice attorneys acting on your behalf, indicating that the AUMF that we enacted was done with the intent to authorize the use of warrantless surveillance is false and misleading to the American public.
Sincerely,
_____________
Cong. Rec. 14 September 2001: H5677
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