[国会记录：2007年12月7日（参议院）] [Page S15011-S15012]怀特豪斯先生。总统先生，让我首先说出在纪念这一天的夏威夷参议员的言论之后，我是如何在参议院落伍的。但是我开始讨论一个不同的问题，一个涉及《外国情报监视法》的问题。我们将很快考虑将所谓的《美国保护法》法案错误的事情做正确，这是八月份在布什政府的要求下在踩踏事件中通过的一项二级立法。考虑到为什么制定权力如此重要，这是值得的。布什总统不仅敦促这项立法，以确定我们的政府如何监视外国特工，而且还建立了他的政府如何监视美国人。毫无疑问，我们八月份通过的立法是关于监视美国人的重要事业 - 除非在最接近的监督下，因此不应允许这种政府进入。我们有一个经过测试的设备，可以保留美国人的标签。这是我们的宪法。我们的宪法是将政府权力分为三个单独的分支机构的最基本条款。 When the Government feels it is necessary to spy on its own citizens, each branch has a role. The executive branch executes the laws and conducts surveillance. The legislative branch sets the boundaries that protect Americans from improper Government surveillance. The judicial branch oversees whether the Government has followed the Constitution and the laws that protect U.S. citizens from violations of their privacy and their civil rights. It sounds basic, but even an elementary understanding of this balance of powers eludes the Bush administration. So now we have to repair this flawed and shoddy Protect America Act. Why are we in Congress so concerned about this legislation? Why is it so vital that we energetically insert the role of Congress and the courts when the Bush administration seeks to determine the rules under which it will spy on Americans? Because look what the Bush administration does behind our backs when they think no one is looking. For years, under the Bush administration, the Office of Legal Counsel within the Department of Justice has issued highly classified, secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own exams, and OLC is the inside place the administration goes to get legal support for its spying program. As a member of the Senate Intelligence Committee, I was given access to those secret opinions and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. attorney, legal counsel to Rhode Island's Governor, and State attorney general, I was increasingly dismayed and amazed as I read on. To give an example of what I read, I have gotten three legal propositions from these secret OLC opinions declassified. Here they are, as accurately as my note-taking could reproduce them from the classified documents. Listen for yourself, Mr. President; I will read all three and then discuss each one. One: An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it. No. 2: The President, exercising his constitutional authority under article II, can determine whether an action is a lawful exercise of the President's authority under article II. And 3: The Department of Justice is bound by the President's legal determinations. Let's start with No. 1. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no--zero--statutory protections for Americans traveling abroad from Government wiretapping--none if you are a businesswoman traveling on business overseas; none if you are a father taking the kids on vacation to the Caribbean; none if you are visiting your aunts or uncles in Italy or Ireland; none even if you are a soldier of the United States of America in uniform serving overseas. The Bush administration provided in that hastily passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail--whatever--once you are outside the borders of the United States. The only restriction is an Executive order called 12333 which limits executive branch surveillance to Americans whom the Attorney General determines to be agents of a foreign power. That is what the Executive order says. But what does this administration say about Executive orders? An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it. ``Whenever [the President] wishes to depart from the terms of a previous Executive order,'' he may do so because ``an Executive order cannot limit a President.'' And he does not even have to change the Executive order or give notice that he is violating it because by ``depart[ing] from the Executive order,'' the President ``has instead modified or waived it.'' So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing. That was among the most egregious flaws in the bill passed during the August stampede orchestrated by the Bush administration, and this OLC opinion shows why we need to correct it. Here is No. 2: The President, exercising his constitutional authority under article II, can determine whether an action is a lawful exercise of the President's authority under article II. That is right, the President, according to the George W. Bush Office of Legal Counsel, has article II power to determine the scope of his article II power. Never mind a little decision called Marbury v. Madison written by Chief Justice John Marshall in 1803 establishing the proposition that it is emphatically the province and the duty [[Page S15012]] of the judicial department to say what the law is. Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President's authority is under article II of the Constitution? No. It is the President, according to this Office of Legal Counsel, who decides the limits of his own article II power. The question ``whether an action is a lawful exercise of the President's authority under article II'' is to be determined by the President's own minions ``exercising his constitutional authority under article II.'' It really makes one wonder: Where do they get these people? You have to be smart, you have to be really bright to get a job within the Office of Legal Counsel. How can people who are so smart be so misguided? And then it gets worse. Remember point 3: The Department of Justice is bound by the President's legal determinations. Let that sink in a minute. ``The Department of Justice is bound by the President's legal determinations.'' We are a nation of laws, not of men. This Nation was founded in rejection of the royalist principle that ``the king can do no wrong.'' Our Attorney General swears an oath to defend the Constitution and the laws of the United States. We are not some banana republic in which the officials all have to kowtow to a supreme leader. Imagine this in another context. Imagine a general counsel to a major U.S. corporation telling his board of directors: In this company, the counsel's office is bound by the legal determinations of the CEO. The board ought to throw that lawyer out. That is malpractice and probably even unethical. Wherever you are, if you are watching this, do me a favor: The next time you are in Washington, DC, take a taxi some evening to the U.S. Department of Justice. Stand outside. Look up at that building shining against the starry night. Look at the sign outside: The United States Department of Justice. Think of the heroes who have served there. Think of the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how all that makes you feel. Then think about this statement: The Department of Justice is bound by the President's legal determinations. If you don't feel a difference from what you were feeling a moment ago, well, I guess congratulations because there is probably a job for you somewhere in the Bush administration. Consider the sad irony that this theory was crafted in that very building by the George W. Bush Office of Legal Counsel. In a nutshell, these three Bush administration legal propositions boil down to this: One, I don't have to follow my own rules, and if I break them, I don't have to tell you that I am breaking them; two, I get to determine what my own powers are; and three, the Department of Justice doesn't tell me what the law is, I tell the Department of Justice what the law is. When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion, but here we are. I implore my colleagues on both sides of the aisle: Reject these feverish legal theories. I understand political loyalty; trust me, I do. But let's also be loyal to this great institution we serve in the legislative branch of Government. Let us also be loyal to the Constitution we took an oath to defend from enemies foreign and domestic. And let us be loyal to the American people who live each day under that Constitution's principles and protections. We simply cannot put the authority to wiretap Americans whenever they step outside America's boundaries under the exclusive control and supervision of the executive branch. We do not allow it when Americans are at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight and of judicial approval and review are simple and longstanding, and Americans deserve their protection wherever on God's green Earth they may travel. I yield the floor. The ACTING PRESIDENT pro tempore. The Senator from Ohio is recognized. ____________________