Useful Remarks from Rep. Van Hollen

I share your opposition to this bill. Electronic surveillance is a vital tool in the war on terror. We all want to know when Osama bin Laden is calling – when he’s calling, who he’s calling, what he’s saying. Existing law, FISA, gives the President the authority to do that. And if the President wants greater flexibility in using that authority, he should come to Congress and tell us exactly what additional authority he needs.

This Congress amended FISA, the electronic surveillance law, more than 25 times since 9/11 to accommodate changing technologies. That’s why it was so troubling to learn that what we as a Congress did in the Patriot Act with respect to electronic surveillance was essentially a meaningless exercise. We gave the President expanded authorities, but the President has since argued that he can go beyond the expanded authorities that we gave him. And the Administration totally ignored the work of the Judiciary Committee and this Congress.

On what basis did they do that? The President claims that when it comes to conducting electronic surveillance, he is, in the final analysis, not constrained by the laws passed by this Congress. He claims that his constitutional authority as Commander-in-Chief under Article 2 in this area ultimately allows him to ignore the will of Congress. That is the conclusion of the Administration’s legal memorandum of January 19, 2006. Essentially, they say we don’t have the power to regulate in this area.

I find it incredibly curious that the bill passed by the House removed language adopted by the Judiciary Committee on a bipartisan basis that affirmed Congress’ power to regulate in this area. Mr. Flake, a Republican colleague from Arizona, proposed an amendment that simply said, “Congress finds that Article 1, Section 8, Clause 18 of the Constitution known as the Necessary and Proper Clause grants Congress clear authority to regulate the President’s inherent power to gather foreign intelligence.” That was passed on a bipartisan basis. It was stripped from the bill in the Rules Committee.

So although Congress claimed to pass a law to regulate the President’s authority in domestic surveillance – albeit giving him additional authorities – the bill did not include a provision that says that Congress finds that we have the power to regulate in this area. Congress should not be abdicating its responsibilities and ceding the President’s argument that Congress doesn’t matter in this area. This bill was a dangerous power grab on behalf of the Administration. I argued and voted against it. Unfortunately, the House of Representatives passed H.R. 5825 by a vote of 232-191. Now the bill will move to the Senate for consideration.

The President and the Congress have a duty to protect the country. We also have a sworn duty to uphold the Constitution. We can do both. The Executive, Legislative, and Judiciary branches must work in concert to ensure that the efforts we take to strengthen our defenses do not infringe on the very freedoms we seek to protect.

Again, thank you for taking the time to share your thoughts on this very important matter. Please know that I will continue to work to preserve our civil liberties and system of checks and balances. Do not hesitate to let me know whenever I may be of service to you.

Sincerely,