Prepared Remarks of U.S.

Senator Russ Feingold

The American Constitution Society
Milwaukee, Wisconsin
April 5, 2007

Thank you, Tom. You are a great friend, and a wonderful mayor

for this city. We miss you in Congress, but as everyone here knows,

you are doing a tremendous job leading Milwaukee, so I thank you.

I also want to thank all of you for inviting me tonight. In just a

short period of time, the American Constitution Society has become a

real force for change. There really was a need for an organization to

step in and challenge the Federalist Society perspective in the legal

community, and that is exactly what ACS has done so well.

I will tell you that I hope I never see the day when membership

in ACS is a prerequisite for serving as a judge or in the Justice

Department, as seems to be the case for the Federalist Society, but I

do look forward to the day when many public servants proudly list ACS

membership on their resumes.

I’m here tonight just three months into the new Congress,

where we are actually getting the chance to challenge some of the

prevailing perspectives ourselves. Unfortunately, since I was elected in

1992, I have spent a lot of time in the minority. I’m here to tell you

that the change in control after the 2006 elections makes a big

difference.

As people know, I believe strongly in bipartisanship no matter

what, from my work with Senator McCain to clean up our campaign

finance system, to my efforts with Senator Susan Collins of Maine to

address rural health needs, to teaming up with Senator Sununu of New

Hampshire to protect civil liberties. I have every intention of

continuing those partnerships.

Unfortunately, some Republicans in Congress have been more

interested in protecting the White House than in conducting oversight

of an administration that has undermined the rule of law. That’s what

Democrats were up against when we were in the minority, and it made

it incredibly difficult to hold the Administration accountable when it did

something it shouldn’t have, which, unfortunately, happened pretty

frequently. It wasn’t just that Republican leaders supported the

policies of the President. It was that they were perfectly comfortable

with abdicating the institutional responsibilities of Congress in order to

protect the President from scrutiny and accountability that was so very

much needed.

Tough congressional oversight is critically important to

checking any executive branch, and especially this executive branch.

So now we finally have the ability to engage in tough oversight, and

already, in three short months, you can see the results. For example,

there is simply no way that we could have uncovered what we now

know about the firing of the eight U.S. Attorneys without the power to

force the Administration to turn over documents and evidence to the

Judiciary Committee. What we have found, now that we have that

power, is extremely troubling. And I’m sure there are more revelations

to come.

Firing of U.S. Attorneys

Attorney General Gonzales testified in January that he would “never,

ever make a change in the United States attorney position for political

reasons.” Yet there is increasingly disturbing evidence that political

motivations played a significant role in what happened and that the

Department of Justice did its best to obscure that fact.

Initially, the Department of Justice told this Committee that the

dismissals were all performance-related. Then, Deputy Attorney

General Paul McNulty conceded at a Judiciary Committee hearing that

Bud Cummins in Arkansas was not dismissed due to his performance.

Then we learned that most of the ousted U.S. Attorneys had received
stellar performance reviews right up until their dismissal. Former

Deputy Attorney General James P. Comey even declared that David

Iglesias, one of the U.S. Attorneys who was fired, was [quote] “one of

our finest.” Others were similarly commended for their work before

they were fired.

I was also deeply concerned to learn that members of Congress may

have tried to influence an ongoing federal criminal investigation that

Mr. Iglesias was conducting. The intrusion of partisan politics into the

prosecutorial discretion of our U.S. Attorneys and the way they

conduct their investigations and pursue their indictments is absolutely

unacceptable. I think that the Ethics Committee should take these

allegations very seriously and should fully explore what investigation

and action is warranted.

Whatever role political motivations played in the dismissals of these

U.S. Attorneys, I think it is clear that the Administration has not acted

in a manner that upholds the best interests of law enforcement and

the reputation of our judicial system.

As everyone knows, this issue has raised the question of whether Mr.

Gonzales, who authorized these firings, should continue as Attorney

General. My response to that is that he shouldn’t have been our

Attorney General in the first place. I voted against his confirmation in

the Judiciary Committee, and again when his nomination came before

the full Senate.

This is someone who, as White House Counsel, probably prevented

improvements to the original Patriot Act, and who requested the

infamous Bybee “torture memo,” which so narrowly interpreted

domestic and international prohibitions against torture that it

permitted coercive interrogation techniques as long as they didn’t rise

to the level of causing organ failure, impairment of bodily functions, or

death. This is someone who described the Geneva Conventions as

[quote] “quaint” in the post-September 11th world.

Then, when he came before the Judiciary Committee for his

confirmation hearing, he gave very misleading information to a

question I asked concerning whether the position the Administration

had taken with respect to torture might also allow it to authorize

warrantless wiretaps. He called my question [quote] “hypothetical.”

Just less than a year later, we found out that the Administration had in

fact taken precisely that position for years.

Back in January 2005, long before the NSA wiretapping story broke, I

believed that Alberto Gonzales did not have the proper respect for the

rule of law to serve as Attorney General. He wasn’t, in my mind, the

right person for that job in the first place.

We still don’t know the whole story behind the U.S. Attorney firings.

We know enough, though, to merit a full investigation. And we also

know, fortunately, that Democrats in charge of the Judiciary

Committees of the House and Senate will pursue that investigation

wherever it leads.

While the U.S. Attorney firings have grabbed a lot of headlines in

recent weeks, and rightly so, I think in some ways even more

troubling is the recently revealed widespread abuse of national

security letters by the FBI. Here again, Democratic control of the

Congress means that Congress can explore these abuses and take

action.

National Security Letters

National security letters, known as NSLs, are issued by the FBI to

businesses to demand certain types of private records, including

information about phone and internet usage, and even detailed credit

reports. To issue NSLs, the government does not need to get any court

approval whatsoever, not from the Foreign Intelligence Surveillance

Court or any other court.

The Patriot Act, which, as you know, I opposed, dramatically expanded

the NSL authorities, essentially granting the FBI a blank check to

obtain some very sensitive records about Americans, including people

not under any suspicion of wrong-doing, without judicial approval.

Congress gave the FBI very few rules to follow, and accordingly shares

some responsibility for the FBI’s troubling implementation of these

broad authorities.

It’s bad enough that the law expanded the reach of these NSLs and

watered down the privacy protections applicable to them, but now it

turns out that the FBI wasn’t even following those rules. Instead, they

basically made up their own rules, and the result is that they trampled

on some basic privacy rights.

In a report issued last month, the Justice Department’s own Inspector

General said that he found, [quote] “the widespread and serious

misuse of the FBI’s national security letter authorities.”

The report revealed that the FBI took a shockingly cavalier attitude

toward the privacy of innocent Americans in its implementation of the

Patriot Act NSL authorities.

The Inspector General found, based on FBI records, that the FBI’s use

of NSLs expanded exponentially after the Patriot Act, moving from

approximately 8,500 requests in 2000, to 39,000 requests in 2003,

56,000 requests in 2004, and 47,000 requests in 2005.

But the Inspector General also found that even those numbers are

inaccurate because the FBI had no policies in place with respect to the

retention or tracking of NSLs. In many cases, agents did not even

keep copies of signed NSLs. As a result, the FBI significantly

undercounted its NSL requests. It also resulted in inaccurate

information being reported to Congress about the use of NSLs.

But perhaps the most disturbing revelation in this report, among many

disturbing revelations, is that on more than 700 occasions, the FBI

obtained telephone billing records or subscriber information from three

telephone companies without first issuing NSLs or grand jury

subpoenas. Instead, it relied on what it called [quote] “exigent letters”

signed by personnel not authorized by statute to sign NSLs.

Although there is a statutory emergency provision permitting the FBI

to obtain certain communications records in emergencies where there

is an immediate threat to a person’s physical safety, the FBI admitted

that many of these exigent letters were issued in non-emergency

situations. Indeed, they were used as a matter of course by one

headquarters unit. This violated both the statute and internal FBI

policy.

There were earlier indicators that NSLs were being abused by the FBI

than this Inspector General’s report. In November 2005, a Washington

Post story described the mountain of National Security Letters that had

been issued by the FBI in recent years. But the Department of Justice

sent a letter strongly implying that the number was inaccurate, and

stating that it had robust internal controls in place to constrain the use

of NSLs. Of course, we now know that wasn’t the case at all.

It’s an understatement to say that the Inspector General’s report

uncovered serious flaws in the use of National Security Letters. But

these were flaws waiting to happen. It should not have taken this type

of highly critical report to convince Congress to do something about

such wide-ranging government power.

Had it not been for this independent audit, Congress and the public

might never have known how the NSL authorities were being abused

by the FBI. The FBI uses these NSL authorities in secret. And when,

during the Patriot Act reauthorization process last year, Congress

asked questions about how these authorities were being used, we got

empty assurances and platitudes that have turned out to be

completely false.

The Inspector General report proves that “trust us” doesn’t cut it when

it comes to the government’s power to obtain Americans’ sensitive

business without a court order and any suspicion that they are tied to

terrorism and espionage.

It was a big mistake for Congress to grant the government broad

authorities and just keep its fingers crossed that they wouldn’t be

misused. Congress should have known better.

Unfortunately, when Congress reauthorized the Patriot Act last year-

again over my opposition- it did nothing to address the standard of

issuing a NSL. It left in place the breathtakingly broad standards for

issuing NSLs. Not only that, but it left in place the automatic,

permanent gag rule imposed on NSL recipients.

Congress needs to put appropriate limits on this kind of government

authority-limits that allow agents to actively pursue criminals and

terrorists, but that also protect the privacy of innocent Americans.

Already, there have been two hearings on the report in the Judiciary

Committee, but I think we need to do more. I plan to hold a hearing

next week in the Constitution Subcommittee, which I chair, on the

types of sensible reforms that will help prevent future abuses of

National Security Letters. Legislation is clearly needed to fix this

problem.

The Justice Department’s credibility concerning the powers contained

in the Patriot Act is in shreds. Congress needs to exercise extensive

and searching oversight of those powers, and it must take corrective

action. The Inspector General report has shown both that current

safeguards are inadequate and that the government cannot be trusted

to exercise those powers lawfully. Congress must address these

problems and fix the mistakes it made in passing and reauthorizing the

flawed Patriot Act.

Wiretapping/OPR Investigation
Of course, any discussion of the Administration flouting the law

wouldn’t be complete if I didn’t at least touch on what has to be the

worst abuse of all- the President’s illegal wiretapping program. As you

may know, I introduced a resolution last year to censure the President

for approving and misleading the public about this program. My

resolution caused some controversy, and it got a lot of support- a little

of that support came from my colleagues in the Senate, and a lot of it

came from Americans who were outraged by the President’s actions.

By asserting to override the clear language of the Foreign Intelligence

Surveillance Act, the President ran roughshod over both of the other

branches of government: Congress, which wrote FISA, and the

judiciary, which is responsible under FISA for approving and issuing

wiretap orders.

The President’s unprecedented assertion of executive power with that

program was a real threat to the principles on which our country is

founded, and his decision to end the program was, I think, a

significant moment in our constitutional history.

But, historical significance aside, there are still a lot of outstanding

questions that Congress needs answered.

For one thing, the Congress still needs to understand fully how and

why the illegal program went forward in the first place. One way we

could have learned more would have been if the Office of Personal

Responsibility of the Justice Department had been able to complete its

internal investigation into the conduct of the attorneys who worked on

and approved the program. But that investigation was blocked when

lawyers who were to conduct it were denied security clearances.

And Attorney General Gonzales testified last summer that the

President himself made the decision to deny the clearances.

Now, obviously, with all the public outcry about this program after it

was revealed in the New York Times, the idea that the President

blocked this investigation was outrageous. A number of members of

Congress complained, but, of course, nothing more happened.

A few weeks ago, however, there was a press report that the Attorney

General may have known that his own actions would be looked at as

part of this internal investigation when he discussed it with the

President. This raised serious questions. And now, with control of the

Senate, we can get some answers.

Along with several Senators on the Judiciary Committee, I wrote to the

Attorney General and asked him about this report. The Department of

Justice responded that the Attorney General did not know he was a

target of this investigation, and that he actually advised the President

to grant the security clearances, but the President disagreed. Already

that is more information we were given at the time of the initial

decision.

Congress must now get to the bottom of this. The American people

deserve to know whether the Attorney General of the United States

acted ethically and appropriately. We have renewed our request for

documents that discuss this matter.

In addition, the President should immediately issue the clearances

needed for the internal investigation to proceed, regardless of whether

the Attorney General himself is a target. That investigation should also

consider whether the Attorney General conducted himself properly in

making his recommendation to the President. Obviously, the Attorney

General should recuse himself from any further involvement in this.

Of course, what went on with this fairly narrow investigation, and

whether the Attorney General acted appropriately, isn’t nearly the

whole story. It’s just one question that remains unanswered more than

five years after the illegal NSA program started. Congress still has to

investigate how and why the Administration conducted illegal

wiretapping of Americans rather than following the law that Congress

passed to permit such surveillance.

And that gets back to my larger point- with control of the Congress,

Democrats are finally able to make sure that Congress fulfills its

constitutional duty as a co-equal branch of government. For six long

years, the Administration acted without oversight and without

accountability. The list of damaging episodes for which there was a

wholly inadequate congressional response is long, and sad – WMD,

Abu Ghraib, Guantanamo Bay, NSA spying, CIA detention facilities,

Katrina, Valerie Plame, Jack Abramoff, and the list goes on and on.

The lack of oversight and accountability not only kept the public from

knowing what really happened in many of these episodes, it also, in

my view, encouraged the Administration to act even more

irresponsibly in the mistaken view that the Congress would never hold

it to account.

In just three months, there are already unmistakable signs that things

have changed. Does anyone have any doubt that the U.S. Attorney
scandal would have been swept under the rug long ago if the results of

the November election had been different? Does anyone think that the

DOJ Inspector General report would have been much more than a one-

day story if Republicans still were in charge?

I am excited about the possibilities for the next two years, not because

I long to settle political scores with the President, or score partisan

points for the next election, but because Congress’ fulfillment of its

historic role and responsibility in our system of government has been

sorely lacking in recent years. As the people’s representatives, it is our

job not only to make laws, but to keep a close eye on the branch of

government that is charged with enforcing those laws. Only when we

meet that responsibility, can the people be confident that their

government is acting with the proper respect for the rule of law. And

that, in the end, is why the Constitution provides for checks and

balances in government, not an all-powerful executive.

I know that this organization is dedicated to these principles as well,

which is why I am proud to be here with you today. Thank you very

much.