Madam Chair, today I offer an amendment with my Republican colleague Jeff Flake from Arizona that would respond to the President's unilateral assertion of power with regard to the electronic surveillance of Americans on U.S. soil and reassert that our existing statutes govern the operation of such surveillance.
Madam Chair, the Federal Government has a duty to pursue al Qaeda and other enemies of the United States with all available tools, including the use of electronic surveillance, to thwart future attacks on the United States and to destroy the enemy.
While the President possesses the inherent authority to engage in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate such surveillance within the United States.
When Congress passed the Foreign Intelligence Surveillance Act, it intended for this statute to provide the sole authority for surveillance of Americans on American soil for the purpose of gathering foreign intelligence information. Our amendment reiterates this important principle.
The President has argued that the authorization for the use of military force provided him with the authority to engage in warrantless electronic surveillance of Americans.
It is hard to believe that any of us contemplated, when we voted to authorize the use of force to root out the terrorists who attacked us on September 11, that we were also voting to nullify FISA. Our amendment makes clear that in the absence of explicit statutory authority, FISA is the exclusive authority for the conduct of domestic electronic surveillance of Americans. While the administration appears to have finally agreed that electronic surveillance occurring as part of the Terrorist Surveillance Program, or TSP, should cease to operate without the approval of the FISA court, the administration has not conceded that it cannot conduct such electronic surveillance of Americans unilaterally outside of FISA with no judicial oversight either now or in the future.
While we have been told that surveillance in this program was limited to phone calls where one of the parties is outside of the United States, there appears to be no limiting principle to the Executive's claim of authority provided by the military force resolution. In fact, when we questioned the Attorney General on this point in the last session, he would not rule out the proposition that the Executive has the authority to wiretap purely domestic calls between two Americans without seeking a warrant.
No one in Congress would deny the need to tap certain calls under court order, but if the government can tap purely domestic phone calls between Americans without court approval, there is no limit to executive power. Congress cannot be silent in the face of this assertion of authority.
In working to meet the real national security needs of the country, we must also ensure that Congress does not abdicate its responsibility to ensure that fundamental liberties are not compromised. Absent congressional action, law-abiding U.S. citizens may continue to have reasonable fear of being the subject of extra-judicial surveillance.
Madam Chairman, I reserve the balance of my time.