So we go a step further in exclusivity. We cover what Yoo was trying to argue and what others might argue on behalf of a Chief Executive in the future, by closing the loophole and saying: You need specific statutory authority by the Congress of the United States to go outside the law and the Constitution.
The final argument the President has made is that even if FISA was intended to apply, and even if the AUMF didn't override FISA's procedures, he still had the authority as Commander in Chief to disregard the law.
Now, I have spoken on the floor before about how the President believes he is above the law and the Youngstown Sheet and Tube Company v. Sawyer case. In that case, Justice Jackson described how the President's power is at the ''lowest ebb'' when he is acting in contravention to the will of the Congress.
This bill, again, makes it clear that the will of Congress is that there will be no electronic surveillance inside the United States without a warrant, and it makes clear that any electronic surveillance that is conducted outside of FISA or outside of another express statutory authorization for surveillance is a criminal act. It is criminalized. This is the strongest statement of exclusivity in history.
The reason I am describing all this is to build a case of legislative intent in case this is ever litigated, and I suspect it may well be.
So, finally, I wish to read into the Record the comments on exclusivity from a June 19, 2008, letter that Attorney General Mukasey and Director of National Intelligence McConnell wrote to the Congress. The letter recognizes that the exclusivity provision in this bill "goes beyond the exclusive means provision that was passed as part of FISA [in 1978]."
So they essentially admit we are taking exclusivity to a new high. Nevertheless, they acknowledge that the provision in this bill "would not restrict the authority of the government to conduct necessary surveillance for intelligence and law enforcement purposes in a way that would harm national security."
I said in February I could not support a bill without exclusivity. This is what keeps history from repeating itself and another President from going outside the law. I believe that with this language we will prevent it from ever happening again.
Now, a comment on title II of the bill, which is the telecom immunity section. This bill also creates a legal process that may--and, in fact, is likely to--result in immunity for telecommunications companies that are alleged to have provided assistance to the Government.
I have spent a great deal of time reviewing this matter. I have read the legal opinions written by the Office of Legal Counsel at the Department of Justice. I have read the written requests to telecommunications companies. I have spoken to officials inside and outside the Government, including several meetings with the companies alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed to protect against further terrorist acts. This actually happened within weeks of 9/11. I think we can all understand and remember what the situation was in the 3 weeks following 9/11.
The companies were told the surveillance program was authorized and that it was legal, and they were prevented from doing their due diligence in reviewing the Government's request. In fact, very few people in these companies--these big telecoms--are actually cleared to receive this information and discuss it. So that creates a very limited universe of people who can do their due diligence within the confines of a given telecommunications company.
For the record, let me also address what I have heard some of my colleagues say. At the beginning of the Terrorist Surveillance Program, only four Senators were briefed. The Intelligence Committee was not, other than the Chairman and Vice Chairman.
I am one who believes it is right for the public and the private sector to support the Government at a time of need. When it is a matter of national security, it is all the more important.
I think the lion's share of the fault rests with the administration, not with the companies.
It was the administration who refused to go to the FISA Court to seek warrants. They could have gone to the FISA Court to seek these warrants on a program basis, and they have done so subsequently.
