Dear [NAME]:
Thank you for contacting me regarding Senate Resolution 398, the resolution introduced by Senator Russ Feingold that would censure the President for authorizing the National Security Agency (NSA) to conduct a warrantless wiretapping program of American citizens. I appreciate hearing from you on this important issue.
Protecting both the security and the freedom of the American people is among my greatest concerns. I share an obligation with my fellow Senators to ensure that the federal government protects and defends the people of the United States while preserving the civil liberties that have helped make our country the greatest and most enduring democracy in the world.
President Bush has stated that he authorized the NSA to conduct warrantless wiretapping of communications made by American citizens living within the United States. Current federal law provides that electronic surveillance and interception of domestic oral, wire and electronic communications may be conducted only according to the procedures established in the federal criminal wiretap statute and the Foreign Intelligence Surveillance Act(FISA). Under FISA, the government must seek a warrant from a special court in order to conduct electronic surveillance of communications between American citizens and persons outside of the country. FISA requires that these court proceedings be conducted as expeditiously as possible, and FISA permits the government in emergency situations to begin conducting surveillance immediately and obtain a warrant up to 72 hours later. FISA also places safeguards on the ways in which the intercepted information can be used and disseminated.
When the President and the Administration order actions such as the surveillance of American citizens, these actions must be conducted in a manner consistent with the rule of law and the Constitution's commitment to civil liberties. Even President Bush himself has apparently recognized that it is improper to subject Americans in the United States to wiretapping without court approval. In a speech on April 20, 2004, the President said:
Now, by the way, 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. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.
The current Congress has failed to conduct the kind of oversight that should be applied to the actions of any President who has been accused of breaking the law. Because this Congress has not adequately investigated the fact that the President's domestic wiretapping program does not appear to follow the procedures outlined in FISA, Senator Feingold introduced his resolution seeking to censure the President. Senator Feingold's resolution could serve as a catalyst for that scrutiny. The Chairman of the Senate Judiciary Committee, Arlen Specter, has indicated that he does not believe there is a constitutional basis for the program and that, despite the Administration's claims to the contrary, he did not think that the Authorization for the Use of Military Force in Iraq that Congress passed in 2001 empowered the Executive Branch to conduct this warrantless wiretapping program. Senator Specter also agreed that the operational details and legal underpinnings for this program are not clear and need to be investigated further in order for Congress to exercise appropriate oversight.
Senator Feingold's resolution has helped draw more attention to the warrantless wiretapping program and the legal rationales the Administration has put forth to justify it. What is needed now is the full investigation that will clarify the nature of this surveillance. That investigation should guide us to the appropriate response as well as to efforts to ensure that any future government surveillance is conducted in a manner consistent with our Constitution and laws.
Thanks again for your message. Feel free to keep in touch.
Sincerely,
Richard J. Durbin
United States Senator
RJD/ds
P.S. If you are ever visiting Washington, please feel free to join Senator Obama and me at our weekly constituent coffee. When the Senate is in session, we provide coffee and donuts every Thursday at 8:30 a.m. as we hear what is on the minds of Illinoisans and respond to your questions. We would welcome your participation. Please call my D.C. office for more details.