Senator Feingold's response to me about the NY Times Article

Thank you for contacting me regarding the President's
authorization of warrantless wiretaps inside the United States by
the National Security Agency (NSA). I appreciate hearing from
you.

On December 17, 2005, in response to a New York Times story
published the day before, President George W. Bush
acknowledged that for the past several years he has authorized the
National Security Agency to wiretap the international
communications of American citizens inside the United States
without first obtaining the court orders required by law. As you
know, on March 13, 2006, I introduced a resolution to censure the
President because of his actions. I believe that this is an
appropriate response to the President's illegal wiretapping
program. Congress must hold the President accountable for
authorizing a program that clearly violates the law and for
misleading the country about its existence and legality.

There is no question that the government should wiretap suspected
terrorists both inside and outside the United States to protect our
national security. But the President has not explained why the
government cannot comply with current law that already
authorizes this type of surveillance. In 1978, Congress passed the
Foreign Intelligence Surveillance Act (FISA). This law sets out
the procedures by which the government can obtain a warrant from
a secret court known as the FISA Court to authorize electronic
surveillance of individuals in the United States who are suspected
of terrorism or espionage. FISA recognizes the importance of
wiretapping suspected terrorists, while also putting in place
judicial oversight of this type of surveillance to ensure the
government has some evidence indicating that the people being
wiretapped might be terrorists. FISA further allows the
government to implement a wiretap immediately in an emergency,
so long as the government seeks a court order within 72 hours.
FISA explicitly makes it a crime to wiretap individuals in the
United States without complying with the statute.

The President has claimed that Congress granted him the power to
conduct surveillance without a warrant in the Authorization for
Use of Military Force (AUMF) that was signed into law on
September 18, 2001. The AUMF authorized the President to use
military force against those responsible for the attacks of
September 11, 2001. But the AUMF contains no provisions
regarding warrantless surveillance. In fact, around that same time,
Congress was considering the USA PATRIOT Act ("Patriot Act"),
which amended FISA and other surveillance laws to make it easier
to conduct surveillance of suspected terrorists and spies. In the
course of the Patriot Act negotiations, the Administration did not
ask for, nor did the Patriot Act include, any change to FISA's
requirement that there be judicial approval for wiretaps of
Americans in the United States.

The President has also argued that he has the inherent
constitutional authority to conduct this warrantless surveillance.
He has argued that courts have addressed this issue and held that
the President has the constitutional authority to authorize
warrantless wiretaps. However, the Supreme Court has never
addressed this issue, and the cases cited by the President involved
wiretapping conducted prior to the enactment of the FISA statute,
which for the first time made it a crime to wiretap individuals
without a warrant. The U.S. Supreme Court explained more than
50 years ago that once Congress has specifically prohibited certain
actions by the executive branch, the President's inherent
constitutional authority is at its "lowest ebb."

I believe, as do many constitutional scholars and other experts, that
the President's authorization of the NSA to wiretap individuals
without getting a court order under FISA violates the law. Not
only does the President not have the authority to violate the laws
that Congress passes, but also there are serious Fourth Amendment
issues raised by the President's authorization of warrantless
wiretaps inside the United States. As I'm sure you know, the
Fourth Amendment provides the right to be free from unreasonable
searches and seizures. In a 1967 decision, Katz v. United States,
the U.S. Supreme Court held that the protections of the Fourth
Amendment extend to communications.

As a member of the Senate Judiciary Committee and the Senate
Select Committee on Intelligence, I will continue to push for a full
congressional investigation and for full accountability. If you
would like to read the text of the censure resolution please go to
<http://feingold.senate.gov/censureresolution.pdf>. To view the
statement I delivered on the Senate floor just prior to introducing
the resolution, please go to
<http://feingold.senate.gov/~feingold/statements/06/03/2006313.ht
ml>. You can also find a fact sheet about the domestic
surveillance program and the Administration's shifting
justifications for it at
<http://www.feingold.senate.gov/issues_patriotdwt.html>.

On March 31, 2006, the Senate Judiciary Committee held a hearing
entitled "An Examination of the Call to Censure the President." I
am pleased that Senator Arlen Specter (R-PA), Chairman of the
Judiciary Committee, called the hearing and is encouraging debate
on this issue. I look forward to continued debate in the Committee
and the full Senate. For additional information on the March 31
hearing, I encourage you to visit my website. Video clips of my
opening statement and questioning of the witnesses can be found at
<http://feingold.senate.gov/033106_feingold1.rm> and
<http://feingold.senate.gov/033106_feingold2.rm>. The text of my
opening statement is available at
<http://feingold.senate.gov/~feingold/statements/06/03/2006331.ht
ml>.

Thank you again for contacting me regarding the President's
authorization of warrantless surveillance within the United States.
I look forward to hearing from you in the future.


Sincerely,

Russell D. Feingold
United States Senator

congrats! What a thoughtful and thorough response.