Sen. Sheldon Whitehouse, D-R.I., made the comments on the Senate floor during debate on an upcoming vote to amend the Foreign Intelligence Surveillance Act (or FISA).
The primary focus of the legislation is to clarify by what means wiretaps can be initiated against Americans and non-Americans. The bill was written in response to reports that the Bush administration has for years engaged in wiretaps of citizens without acquiring warrants, as is required under FISA law and the Fourth Amendment.
The administration has argued that obtaining warrants can hamstring its surveillance of terrorists.
Critics have cited instances where the administration has used warrantless wiretaps to obtain phone conversations, E-mails and other communications.
Whitehouse said that the Bush administration's actions have been "misguided," by usurping the balance of powers among the executive, legislative and judicial branches in order to exercise unquestioned authority by the office of the president.
Whitehouse said that as a member of the Intelligence Committee, he had examined "highly classified secret legal opinions" issued by the Department of Justice's Office of Legal Counsel, which the administration used to get legal support of its surveillance program.
Whitehouse recounted that, "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."
Whitehouse related three OLC legal opinions which he got declassified:
"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."Currently, executive order 12333 limits executive branch surveillance to Americans whom the Attorney General has determined to be agents of a foreign power. But under this legal opinion, Whitehouse says, "an executive order cannot limit a President."
"So unless Congress acts," Whitehouse said, "Here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing."
"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."Despite the 1803 decision Marbury v. Madison, in which Chief Justice John Marshall established that it is "emphatically the province and duty of the judicial department to say what the law is," Whitehouse said the legal opinion declares that it is the President who decides.
"The Department of Justice is bound by the President's legal determinations.""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 CEO's legal determinations,'" Whitehouse said. "The board ought to throw that lawyer out - it's malpractice, probably even unethical."
"We are a nation of laws, not of men," the senator said. "This nation was founded in rejection of the royalist principles that 'l'etat c'est moi' and 'The King can do no wrong'."