Senator Robert Byrd: No President Is Above the Law
Monday 19 December 2005
Americans have been stunned at the recent news of the abuses of power by an overzealous President. It has become
apparent that this Administration has engaged in a consistent and unrelenting pattern of abuse against our Country's
law-abiding citizens, and against our Constitution.
We have been stunned to hear reports about the Pentagon gathering information and creating databases to spy on ordinary
Americans whose only sin is choosing to exercise their First Amendment right to peaceably assemble. Those Americans who
choose to question the Administration's flawed policy in Iraq are labeled by this Administration as "domestic
We now know that the F.B.I.'s use of National Security Letters on American citizens has increased one hundred fold,
requiring tens of thousands of individuals to turn over personal information and records. These letters are issued
without prior judicial review, and provide no real means for an individual to challenge a permanent gag order.
Through news reports, we have been shocked to learn of the CIA's practice of rendition, and the so-called "black
sites," secret locations in foreign countries where abuse and interrogation have been exported to escape the reach of
U.S. laws protecting against human rights abuses.
We know that Vice President Dick Cheney has asked for exemptions for the CIA from the language contained in the McCain
torture amendment banning cruel, inhumane, and degrading treatment. Thank God his pleas have been rejected by this
Now comes the stomach-churning revelation that through an executive order, President Bush has circumvented both the
Congress and the courts. He has usurped the Third Branch of government - the branch charged with protecting the civil
liberties of our people - by directing the National Security Agency to intercept and eavesdrop on the phone
conversations and e-mails of American citizens without a warrant, which is a clear violation of the Fourth Amendment. He
has stiff-armed the People's Branch of government. He has rationalized the use of domestic, civilian surveillance with a
flimsy claim that he has such authority because we are at war. The executive order, which has been acknowledged by the
President, is an end-run around the Foreign Intelligence Surveillance Act, which makes it unlawful for any official to
monitor the communications of an individual on American soil without the approval of the Foreign Intelligence
What is the President thinking? Congress has provided for the very situations which the President is blatantly
exploiting. The Foreign Intelligence Surveillance Court, housed in the Department of Justice, reviews requests for
warrants for domestic surveillance. The Court can review these requests expeditiously and in times of great emergency.
In extreme cases, where time is of the essence and national security is at stake, surveillance can be conducted before
the warrant is even applied for.
This secret court was established so that sensitive surveillance could be conducted, and information could be gathered
without compromising the security of the investigation. The purpose of the FISA Court is to balance the government's
role in fighting the war on terror with the Fourth Amendment rights afforded to each and every American.
The American public is given vague and empty assurances by the President that amount to little more than "trust me."
But, we are a nation of laws and not of men. Where is the source of that authority he claims? I defy the Administration
to show me where in the Foreign Intelligence Surveillance Act, or the U.S. Constitution, they are allowed to steal into
the lives of innocent America citizens and spy.
When asked yesterday what the source of this authority was, Secretary of State Condoleezza Rice had no answer.
Secretary Rice seemed to insinuate that eavesdropping on Americans was acceptable because FISA was an outdated law, and
could not address the needs of the government in combating the new war on terror. This is a patent falsehood. The USA
Patriot Act expanded FISA significantly, equipping the government with the tools it needed to fight terrorism. Further
amendments to FISA were granted under the Intelligence Authorization Act of 2002 and the Homeland Security Act of 2002.
In fact, in its final report, the 9/11 Commission noted that the removal of the pre-9/11 "wall" between intelligence
officials and law enforcement was significant in that it "opened up new opportunities for cooperative action."
The President claims that these powers are within his role as Commander in Chief. Make no mistake, the powers granted
to the Commander in Chief are specifically those as head of the Armed Forces. These warrantless searches are conducted
not against a foreign power, but against unsuspecting and unknowing American citizens. They are conducted against
individuals living on American soil, not in Iraq or Afghanistan. There is nothing within the powers granted in the
Commander in Chief clause that grants the President the ability to conduct clandestine surveillance of American
civilians. We must not allow such groundless, foolish claims to stand.
The President claims a boundless authority through the resolution that authorized the war on those who perpetrated the
September 11th attacks. But that resolution does not give the President unchecked power to spy on our own people. That
resolution does not give the Administration the power to create covert prisons for secret prisoners. That resolution
does not authorize the torture of prisoners to extract information from them. That resolution does not authorize running
black-hole secret prisons in foreign countries to get around U.S. law. That resolution does not give the President the
powers reserved only for kings and potentates.
I continue to be shocked and astounded by the breadth with which the Administration undermines the constitutional
protections afforded to the people, and the arrogance with which it rebukes the powers held by the Legislative and
Judicial Branches. The President has cast off federal law, enacted by Congress, often bearing his own signature, as mere
formality. He has rebuffed the rule of law, and he has trivialized and trampled upon the prohibitions against
unreasonable search and seizure guaranteed to Americans by the United States Constitution.
We are supposed to accept these dirty little secrets. We are told that it is irresponsible to draw attention to
President Bush's gross abuse of power and Constitutional violations. But what is truly irresponsible is to neglect to
uphold the rule of law. We listened to the President speak last night on the potential for democracy in Iraq. He claims
to want to instill in the Iraqi people a tangible freedom and a working democracy, at the same time he violates our own
U.S. laws and checks and balances? President Bush called the recent Iraqi election "a landmark day in the history of
liberty." I dare say in this country we may have reached our own sort of landmark. Never have the promises and
protections of Liberty seemed so illusory. Never have the freedoms we cherish seemed so imperiled.
These renegade assaults on the Constitution and our system of laws strike at the very core of our values, and foster a
sense of mistrust and apprehension about the reach of government.
I am reminded of Thomas Payne's famous words, "These are the times that try men's souls."
These astounding revelations about the bending and contorting of the Constitution to justify a grasping, irresponsible
Administration under the banner of "national security" are an outrage. Congress can no longer sit on the sidelines. It
is time to ask hard questions of the Attorney General, the Secretary of State, the Secretary of Defense, and the
Director of the CIA. The White House should not be allowed to exempt itself from answering the same questions simply
because it might assert some kind of "executive privilege" in order to avoid further embarrassment.
The practice of domestic spying on citizens should halt immediately. Oversight hearings need to be conducted. Judicial
action may be in order. We need to finally be given answers to our questions: where is the constitutional and statutory
authority for spying on American citizens, what is the content of these classified legal opinions asserting there is a
legality in this criminal usurpation of rights, who is responsible for this dangerous and unconstitutional policy, and
how many American citizens' lives have been unknowingly affected?