Conservative and Republican Voices Against President Bush’s NSA Spying Program

Conservative and Republican Voices Against President Bush’s
Warrantless NSA Domestic Wiretap Program

Last updated: March 9, 2006

Bruce Fein, former general counsel to the FCC in the Reagan administration (Senate Judiciary Committee hearing on NSA and domestic spying, 2/28/06)

“The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA would equally justify mail-openings, burglaries, torture, or internment camps – all in the name of gathering foreign intelligence. Unless rebuked, it will lie around like a loaded weapon, ready to be used by an incumbent who claims an urgent need.”

“The burden of persuasion ought to be on the president to explain why FISA is unworkable, not on us to explain why a secret program we know nothing about is unnecessary.”

Robert Levy, senior fellow in constitutional studies at the CATO Institute, a conservative think tank (Senate Judiciary Committee hearing on NSA and domestic spying, 2/28/06)

“What about the FISA statute – doesn’t the NSA program violate its expressed terms? My answer to that question is: Yes. The text is unambiguous. A person is guilty of offense if he intentionally engages in electronic surveillance except as authorized by statute.”

“Do the president’s inherent wartime powers allow him to ignore FISA? My answer is: No… warrantless wiretapping of Americans inside the United States who may have nothing to do with Al Qaida does not qualify as incidental wartime authority.”

“When FISA forbids electronic surveillance without a court order, except for 15 days, while the AUMF permits necessary and appropriate force, it seems to me quite simply bizarre to argue that electronic surveillance is thereby authorized without a warrant.”

Sen. Arlen Specter (R-PA), Chairman of the Senate Judiciary Committee (Senate Judiciary Committee hearing on NSA and domestic spying, 2/28/06)

“One would involve congressional approval of the program, which seems difficult – really impossible – to me, unless we know what the program is. And we do not know what the program is. But the Foreign Intelligence Surveillance Court has the standing, the expertise, and the record for secrecy to make that kind of a determination.”

Jim Harper, director of information policy studies at the CATO Institute, a conservative think tank, (ACLU National Town Hall on NSA Spying, 2/20/06)

“The premise of the legal arguments about the President’s inherent authority, the scope of FISA, the authorization of military force, and the Fourth Amendment question is that we are in a state of war.  This is obviously a very different war than any we’ve encountered before.  It’s not objectively verifiable at any given time.  There’s no space where shooting is happening regularly.  We need more information and a better conversation about what is actually happening in order to address the reality.”

“It’s true that we all recognize there are certain cases where certain details – location of the troops, the precise technology used – shouldn’t be revealed.  But we’re not children; we’re not so stupid as to think Osama bin Laden is shocked to learn we’re trying to overhear what he’s saying.  The secrets that this administration thinks must be kept are ridiculous.  They also believe in selectively releasing secrets.”

“Giving the Vice President power to declassify information selectively and not for security reasons, is an example of the kind of porous transparency that we do not need.  We need some meaningful accountability so that we can measure the threat.” 

John Dean, former counsel in the Nixon administration, (ACLU National Town Hall on NSA Spying, 2/20/06)

“In a parallel situation today, I would tell this President that he has a very serious problem.  I’m not sure if there’s a cancer yet, I’m not sure if it’s metastasizing, but the diagnosis is not healthy. He has made such a radical reading of his powers, not unlike Nixon.  And those operating on his behalf have pursued that policy that it could well end up where we did with the Nixon White House.”

“There’s no question in my mind that this President has already committed one or more technically impeachable offenses.”

Sen. Pat Roberts (R-KS), Chairman of the Senate Intelligence Committee (“Senate Chairman Splits with Bush on Spy Program,” New York Times, 2/18/06)

"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."

"I think it's the function and the oversight responsibility of the committee," he said, adding, "That might sound strange coming from me."

“It's the Republicans on the committee, my staff and myself, who have been really — I don't want to say pressuring, but trying to come up with a reasonable compromise that will settle this issue. It was our activity that brought them along to this point, plus the possibility of an investigation."

"We would be much more in concert with the Congress and everybody else and the FISA court judges" if the court oversaw the program."

Sen. Olympia Snowe (R-ME), member of the Senate Select Committee on Intelligence (“Senate Chairman Splits with Bush on Spy Program,” New York Times, 2/18/06)

"I think we do have to have judicial review," she said, adding, "Whether it's the FISA approach or not I think remains in question, but it can't go on in perpetuity, and it can't be unfettered warrantless surveillance."

George Will, conservative columnist (“No Checks, Many Imbalances,” Washington Post, 2/16/06)

“This monarchial doctrine emerges from the administration’s stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president’s inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.”

“Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance – and that if the administration had asked, Congress would have refused to authorize it. The first assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it…Equally implausible is the idea that in the months after Sept. 11, Congress would have refused to revise the 1978 law in ways that would authorize, with some supervision, the NSA surveillance that, even in today’s more contentious climate, most serious people consider conducive to national security.”

“…the Constitution’s plain language, which empowers congress to ratify treaties, declare war, fund and regulate military forces, and make laws “necessary and proper” for the execution of all presidential powers. Those powers do not include deciding that a law – FISA, for example – is somehow exempted from the presidential duty to “take care that the laws be faithfully executed.”

Rep. Heather Wilson (R-NM), Chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence (Republican speaks Up, Leading Others to Challenge Wiretaps,” New York Times, 2/14/06)

"I think the argument that somehow, in passing the use-of-force resolution, that that was authorizing the president and the administration free rein to do whatever they wanted to do, so long as they tied it to the war on terror, was a bit of a stretch. And I don’t think that’s what most members of Congress felt they were doing.”

Sen. Lindsey Graham (R-SC), member of the Judiciary Committee and the Armed Services Committee (“Republican Speaks Up, Leading Others to Challenge Wiretaps,” New York Times, 2/14/06)

“I think there’s two things going on. There’s an abandonment of you-broke-the-law rhetoric by the Democrats and a more questioning attitude about what the law should be by the Republicans. And that merges for a very healthy debate.”

Sen. Susan Collins (R-ME), former member of Senate Subcommittee on Oversight Government Management (“Republican Speaks Up, Leading Other to Challenge Wiretaps,” New York Times, 2/14/06)

“There is considerable concern about the administration’s just citing the president’s inherent authority or the authorization to go to war with Iraq as grounds for conducting this program. It’s a stretch.”

Rep. Heather Wilson (R-NM), Chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence (“Republican Who Oversees N.S.A. Calls for Wiretap Inquiry,” New York Times, 2/08/06)

The lawmaker…said she had ‘serious concerns’ about the surveillance program. By withholding information about its operations from lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.

Ms. Wilson said… that she considered the limited Congressional briefings to be ‘increasingly untenable’ because they left most lawmakers knowing little about the program. She said the House Intelligence Committee needed to conduct a ‘painstaking’ review, including not only classified briefings but also access to internal documents and staff interviews with N.S.A. aides and intelligence officials.

Sen. Lindsey Graham (R-SC), member of the Judiciary Committee and the Armed Services Committee (“Privacy Concerns, Terror Fight at Odds,” Washington Post, 2/07/05)

“This ‘statutory force resolution’ argument that you’re making is very dangerous in terms of its application for the future,” Graham told Gonzales. “When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”

Timothy Lynch, director of project on criminal justice at CATO, a libertarian think tank (“Privacy Concerns, Terror Fight at Odds,” Washington Post, 2/07/06)

“The overriding issue that’s at stake in these hearings is the stance of the administration that they’re going to decide in secrecy which laws they’re going to follow and which laws they can bypass.”

Sen. Arlen Specter (R-PA), Chairman of the Senate Judiciary Committee (“Privacy Concerns, Terror Fight at Odds,” Washington Post, 2/07/06)

“The whole history of America is a history of balance,” Specter said, referring to security and civil liberties. “I think there’s a chance the administration might take up the idea of putting this whole issue before the Foreign Intelligence Surveillance Court… I think they are seeing concerns in a lot of directions from all segments: Democrats and Republicans in all shades of the political spectrum.”

(Senate hearing on NSA and Domestic Spying, 2/06/06)

“The Foreign Intelligence Surveillance Act was passed in 1978, and has a forceful and blanket prohibition against any electronic surveillance without a court order. That law was signed by President Carter with a signing statement that that was the exclusive way for electronic surveillance. There is beyond, a constitutional issue as to whether the president has inherent powers under Article 2 of the Constitution to undertake a program of this sort. If the president has constitutional authority, that trumps and supersedes the statute. The Constitution is the fundamental law of the county, and a statute cannot be inconsistent with a constitutional provision.”

Sen. Michael DeWine (R-OH), member of Senate Select Committee on Intelligence (Senate hearing on NSA and Domestic Spying, 2/06/06)

“It is clear that there are serious legal and constitutional questions concerning whether the Fourth Amendment’s reasonable requirement for searches requires the president, after a period of time, after a program has been in place for a period of time, to come to the Congress for statutory authorization to continue such actions. But what is not debatable is that both from a constitutional as well as from a policy point of view, the president and the American people would be stronger – this country would be stronger and the president would be stronger – if he did so, if he did come to the Congress for such specific statutory authorization.”

“I just really believe it’s in the country’s best interest, the president’s best interest, the war on terrorism’s best interest, which is what we’re all concerned about, some four years or so after this program has been initiated for the president to come to Congress and to get – for us – the Intelligence Committee, which is the committee that has jurisdiction, to take a look at this program, to get the briefing on the program, and then to see whatever changes in the law have to be made and to deal with it.”

Sen. Lindsey Graham (R-SC), member of the Judiciary Committee and the Armed Services Committee (Senate hearing on NSA and Domestic Spying, 2/06/06)

“The FISA statute – if you look at the legislative language, they made a conscious decision back in 1978 to resolve this two-lane debate. There’s two lanes you can go down as commander in chief. You can act with the Congress and you can have inherent authority as commander in chief…”

“All I’m saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executives decisions in a time of war. It deals the Congress out, it deals the courts out. And…there is a better way.”

Sen. Samuel Brownback (R-KS), member of Senate Judiciary Committee (Senate hearing on NSA and Domestic Spying, 2/06/06)

“It strikes me that we’re going to be in this war on terrorism possibly for decades; maybe not. But this could be the Cold War of our generation. Maybe it doesn’t go that period of time, but it has the possibilities of going for some extended period of time. And I share Senator DeWine’s concern that we should look, then, at the FISA law, and make sure that as we move forward on this, that we’re not just depending upon these authorizations of war to say that that puts us in a superior position under the Article II powers…”

Richard Epstein, University of Chicago law professor and member of Federalist Society (“Specialists Doubt Legality of Wiretaps, Boston Globe, 2/02/06)

“I find every big of this legal document disingenuous. The president’s position is essentially that [Congress] is not doing the right thing, so I’m going to act on my own.”

John Samples, director of the Center for Representative Government at the CATO Institute, a libertarian think tank (“Senate target: Bush’s war powers,” Christian Science Monitor, 2/01/06)

“The presidency, whoever is in it, has real advantages in the struggle, but we may see that the Congress finally believes that the Bush administration has gone too far.”

Sen. John McCain (R-AZ), Senate Co-Chair of the National Security Caucus (FOX News, 1/22/06)

Asked if the president has the legal authority to engage in warrantless wiretaps, McCain replied:

“You know, I don’t think so, but why not come to Congress?  We can sort this all out. …  I think they will get that authority, whatever is reasonable and needed, and increased abilities to monitor communications are clearly in order.”

Alan Gottlieb, founder of the Second Amendment Foundation (“Conservatives and Liberals Want Action on Surveillance Controversy,” The Nation, 1/18/06)

“If the law is not reformed, ordinary Americans’ personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives.”

Bob Barr, former Republican member of Congress and Chairman of Patriots to Restore Checks and Balances (U.S. Newswire, 1/17/06)

“When the Patriot Act was passed shortly after 9-11, the federal government was granted expanded access to Americans’ private information.  However, federal law still clearly states that intelligence agents must have a court order to conduct electronic surveillance of Americans on these shores.  Yet the federal government overstepped the protections of the Constitution and the plain language of FISA to eavesdrop on Americans’ private communication without any judicial checks and without proof that they are involved in terrorism.”

David Keene, Chairman of the American Conservative Union (U.S. Newswire, 1/17/06)

“The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever.  No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts.  This is not a partisan issue, it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that post constitutional concerns.”

Grover Norquist, President of Americans for Tax Reform (U.S. Newswire, 1/17/06)

“Public hearings on this issue are essential to addressing the serious concerns raised by alarming revelations of NSA electronic eavesdropping.”

Paul Weyrich, Chairman and CEO, Free Congress Foundation (U.S. Newswire, 1/17/06)

“I believe that our executive branch cannot continue to operate without the checks of other branches.  However, I stand behind the President in encouraging Congress to operate cautiously during the hearings so that sensitive government intelligence is not given to our enemies.”

Alan Gottlieb, founder, Second Amendment Foundation (U.S. Newswire, 1/17/06)

“If the law is not reformed, ordinary Americans’ personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives.  This is of particular concern to gun owners, whose rights guaranteed under the Second Amendment are currently being infringed upon under the Patriot Act’s controversial record search provisions.”

Paul Craig Roberts, former Assistant Secretary of the Treasury in the Reagan Administration (“Against Truth-Tellers,” Civil Watch, 1/12/06)

“Compared to Spygate, Watergate was a kindergarten picnic.  The Bush administration’s lies, felonies, and illegalities have revealed it to be a criminal administration with a police state mentality and police state methods.  Now Bush and his attorney general have gone with the final step and declared Bush to be above the law.  Bush aggressively mimics Hitler’s claim that defense of the realm entitles him to ignore the rule of the law…”

“These possible reasons for bypassing the law and the court need to be fully investigated and debated.  No administration in my lifetime has given so many strong reasons to oppose and condemn it as has the Bush administration.  Nixon was driven from office because of a minor burglary of no consequence in itself.  Clinton was impeached because he did not want the embarrassment of publicly acknowledging that he engaged in adulterous sex acts in the Oval Office.  In contrast, Bush has deceived the public and Congress in order to invade Iraq, illegally detained Americans, illegally tortured detainees, and illegally spied on Americans.  Bush has upheld neither the Constitution nor the law of the land.”

Sen. Richard Lugar (R-IN), Chairman of the Senate Foreign Relations Committee  (CNN’s Late Edition with Wolf Blitzer, 01/01/06)

Asked if comfortable with the president’s acknowledgement that he authorized secret wiretap surveillance of American citizens, among others, involved in overseas phone calls, emails, or faxes, without getting a formal court order, Lugar replied:

“Well, I can understand in the context of 9-11 that there may have been, in a common sense way, a reason why calls coming from the Middle East of Afghanistan might be intercepted, but I think the Congress quite rightly is trying to take a look at now the fact that we’re past 9-11, we’re going to have to live with the war on terror for a long while.  And whether it’s the treatment of prisoners that we’ve been discussing, for example, or elements of the Patriot Act, likewise intercepts are going to have to be given, I think, a pretty good hearing.”

Asked if he wanted a hearing, Lugar replied:

“I do.  I think this is an appropriate time, without going back, and should the president ever have tried to listen to a call coming from Afghanistan, probably of course.  And in the first few weeks we made many concessions in the Congress because we were at war and we were under attack.  We still have the possibility of that going on, so we don’t want to obviate all of this, but I think we want to see what in the course of time really works best, and the FISA act has worked pretty well from the time of President Carter’s day to the current time.” 

William Safire, former speechwriter for President Nixon (NBC’s Meet the Press, 01/01/06)

“During wartime, we have this excess of security, and afterwards we apologize.  And that’s why I offended a lot of my conservative and hard-line friends right after September 11th, when they started putting these captured combatants in jail, and said the president can’t seize dictatorial power.  And a lot of my friends looked at me like I was going batty.  But now we see this argument over excessive security, and I’m with the critics on that.”

Steve Chapman, a columnist who has identified himself as “a small-government, pro-life libertarian,” (Chicago Tribune, 12/25/05)

“The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raised the question: Why?”

“The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists.  The court that handles such requests hardly ever refuses.  But Bush bridles at the notion that the president should ever have to ask permission of anyone.”

Sen. Larry Craig (R-ID), Chairman of the Veterans’ Affairs committee (Associated Press, 12/24/05)

“I’m particularly concerned about the long-term effect of the line we may be crossing.  When we flipped the FISA over from just foreign governments and known spies and blended it into a gray area of the Patriot Act, we’re now talking about somebody who we have reason to believe is connected to a foreign government, but they are a U.S. citizen.”

Rep. C.L. “Butch” Otter, (R- ID), Assistant Majority Whip in House of Representatives (Associated Press, 12/23/05)

“The Founders envisioned a nation where people’s privacy was respected and the government’s business was open…  These actions turn that vision on its head.  If the government is willing to bend the rules on this issue, how are we supposed to believe it won’t abuse the powers granted by the Patriot Act?”

Sen. Chuck Hagel (R- NE), member of the Intelligence and Rules Committee (“Hagel: no president above the law,” Lincoln Journal-Star, 12/22/05)

“Americans can be protected against terrorism without violating the law or ignoring civil rights…No president is ever above the law.  We are a nation of laws and no president, majority leader or chief justice of the Supreme Court can unilaterally or arbitrarily avoid a law or dismiss a law. …  We need wiretaps … but there’s a right way and a wrong way to do that.”

Sen. Olympia Snowe (R-ME), member of the Senate Select Committee on Intelligence (Snowe Release, 12/21/05)

“Revelations that the U.S. government has conducted domestic electronic surveillance without express legal authority indeed warrants Congressional examination.  I believe the Congress – as a coequal branch of government – must immediately and expeditiously review the use of this practice.”

Sen. Snowe (R-ME), member of the Senate Select Committee on Intelligence, and Sen. Hagel (R-NE), member of the Intelligence and Rules Committee (Senators’ Letter to Judiciary Committee, 12/21/05)

“We write to express our profound concern about recent revelations that the United States Government may have engaged in domestic electronic surveillance without appropriate legal authority.  These allegations, which the President, at least in part, confirmed this weekend, require immediate inquiry and action by the Senate.”

George Will, conservative columnist (“Why Didn’t He Ask Congress?”  The Washington Post, 12/20/05)

“On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation’s enemies, the president’s decision to authorize NSA’s surveillance without the complicity of a court or Congress was a mistake.  Perhaps one caused by this administration’s almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.”

Norm Ornstein, resident scholar of the American Enterprise Institute (AEI), a conservative Washington think tank (Diane Rehm Show, 12/19/05)

“I think if we’re going to be intellectually honest here, this really is the kind of think that Alexander Hamilton was referring to when impeachment was discussed.”

Sen. John Sununu (R-NH), Chairman of the Committee on Foreign Relations Subcommittee on International Operations and Terrorism (National Public Radio, “All Things Considered,” 12/19/05)

Asked if the NSA wiretapping was legal, Sununu replied:

“I don’t know.  It’s really difficult to say without having all the information in front of you, and that could probably only be presented in some sort of classified briefing.  I think it does underscore, though, the importance of looking carefully at whether or not civil liberties are being protected, whether it’s work being done by the National Security Administration, the NSA, or work being done by law enforcement under the Patriot Act.  We want to make sure that there are appropriate protections in place; that objections can be heard in front of a judge; and that people have, you know, the right to appeal their case if they think they’ve been prosecuted wrongly.”

Asked if he agreed that the Iraq war resolution granted authority for spying, Sununu replied:

“I don’t believe that that resolution, the use of force resolution, was carte blanche authorization for any new and significant expansion of domestic spying or even intelligence activity on the foreign front.  I think that the authorization for those powers would have to be existing law, and I think there were significant curtailments of different kinds of domestic surveillance.  So I don’t believe that the use of force resolution changed the status quo insofar as surveillance or civil liberties is concerned.”

Sen. Lindsey Graham (R-SC), member of the Judiciary Committee and the Armed Services Committee (Face the Nation, 12/18/05)

“If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don’t know of any legal basis to go around that. There may be some, but I’m not aware of it. And here is the concern I have. We can’t become an outcome-based democracy. Even in a time of war, you have to follow the process, because that’s what a democracy is all about: a process.”

Sen. Susan Collins (R-ME), member of the Committee on Homeland Security and Governmental Affairs (Portland Press Herald, 12/17/05)

Sen. Collins called the allegations of surveillance abuses “extremely troubling.” She further stated that the report “warrants further inquiry by Congress” and that she has asked the NSA for a full briefing.

Sen. Arlen Specter (R-PA), Chairman of the Senate Judiciary Committee  (“President ordered domestic spying program,” Associated Press, 12/17/05)

“There is no doubt that this is inappropriate,” said Sen. Arlen Specter. … He said there would be hearings early next year and that they would have “a very, very high priority.”

Robert Levy, Constitutional Scholar and Federalist Society Board Member (http://www.fed-soc.org/pdf/domesticsurveillance.pdf)

“The text of FISA … is unambiguous: ‘A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statue.’… I know of no court case that has denied there is a reasonable expectation of privacy by U.S. citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA’s electronic surveillance program.”