As soon as Congress reconvenes, Senator Feingold should introduce this resolution and find someone in the House to introduce the same. Explanation following:
SENATE CONCURRENT RESOLUTION__
Expressing the sense of Congress that a Congressional resolution granting authorization for the use of the United States Armed Forces to combat international terrorism does not give the President, his cabinet, or any official of any government agency authorization to supercede the Foreign Intelligence Surveillance Act, nor were votes in favor of the resolution intended to allow such.
IN THE SENATE OF THE UNITED STATES January__, 2006
Whereas the Foreign Intelligence Surveillance Act (FISA), having been duly passed by both chambers of the United States Congress, became Public Law on Oct. 25, 1978, and codified as amended at 50 U.S.C. § 1801 et seq.;
Whereas FISA was passed to protect the Civil Liberties afforded to American citizens by the Constitution of the United States from encroachment by officials of the government of the United States, after such encroachment occurred;
Whereas FISA, not withstanding any other law, allows for the President of the United States to order electronic surveillance for foreign intelligence purposes for the period of one year as long as the surveillance will not acquire the contents of any communication to which a United States person is a party;
Whereas, in times of war, FISA allows the president to authorize surveillance and physical searches without a court order to acquire foreign intelligence information for a period not to exceed fifteen calendar days;
Whereas S.J. Res. 23, duly passed by both chambers of the United States Congress was to be cited as Authorization for Use of Military Force, and Section 2 of that resolution was titled Authorization for Use of United States Armed Forces and provided authorization for use of the United States Military consistent with the War Powers Resolution, and that the Congress declared that this section was intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution; and,
Whereas the Attorney General, on multiple occassions, has asserted that the Authorization for Use of Military Force allows for the President take actions inconsistent with FISA by conducting surveillence that may acquire the contents of communication to which a United States person is a party without a warrant issued under FISA,
Resolved by the Senate (the House of Representatives concurring):
That it is the sense of Congress that the joint resolution authorizing use of the United States Armed Forces to combat international terrorism did not constitute authorization for the President of the United States, his cabinet, or any official of any government agencies acting on his behalf to bypass the legal process and requirements commanded by the Foreign Intelligence Surveillance Act, nor were any votes in favor of the joint resolution intended to supercede the Act.
So why must this resolution must be introduced? Two simple reasons.
First, while the Administration has publicly given up their argument that the war resolution allowed for the President to bypass FISA in ordering eavesdropping, it is in no way clear that they would not try this line of reasoning in any legal proceeding. Thusfar, while individual members of Congress are on the record as saying the Administration is crazy on this point, nowhere is Congress on the record. They must immediately pass a resolution making clear what the intent of the resolution authorizing use of force was, for use in any legal proceedings.
Second, let the Republicans try to stop this one and refuse to go on the official record to tell their constituents that they didnt mean to authorize unrestrained wiretaps and eavesdropping. There is no language in the resolution above that is controversial, theres nothing extreme. So let Republicans explain why they are afraid to affirm, for the record, the language above.
Finally, not working on Capitol Hill anymore, I dont have access to the good people at CRS and Leg Counsel to let me know if the language above is exactly right, but you get the point. Im not a lawyer (but I play one on a blog!).
Let me know if you have any additions or changes to the resolution in the thread below.