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In August, at the behest of the Bush administration, Congress hastily passed the so-called “Protect America Act,” which significantly expanded the president’s powers to spy on Americans. It did this by removing from the definition of “electronic surveillance,” the key determinant for Foreign Intelligence Surveillance Act protections, wiretapping of any person “reasonably believed to be outside the United States.” When the Senate takes up this legislation again, we need to correct this and other mistakes made in August � above all, by reasserting the role of Congress and the courts in the conduct of surveillance on American citizens. Why is this so vital? Because of what this administration does when it thinks no one is looking. For years, the Office of Legal Counsel (OLC) in the U.S. Department of Justice has been issuing highly classified legal opinions related to surveillance. As a member of the Senate Intelligence Committee, I was given access to those opinions, and I have spent hours poring over them. Sitting in that secure room, I was dismayed and amazed. I was able to have my notes quoting three legal propositions from those memos declassified. They are: • “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.” • “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.” • “The Department of Justice is bound by the President’s legal determinations.” These propositions signal an astoundingly broad assertion of executive authority, and a staggering disregard for basic principles of separation of powers, and the structure of our government. Let’s start with theory No. 1. The “Protect America Act” provides zero statutory restrictions on the president’s ability to wiretap, at will, Americans abroad � even soldiers in Iraq. The only restriction on this power is Section 2.5 of Executive Order 12333, of Dec. 4, 1981, on U.S. Intelligence Activities, as amended, which limits surveillance of U.S. persons to those the attorney general determines to be foreign powers or agents of a foreign power. If the first theory stands, the only thing standing between Americans traveling overseas and a government wiretap is an executive order that this president believes he is under no obligation to obey, and may secretly disregard. If executive orders are our only protection, it matters a lot when this administration says the president doesn’t have to follow them, or tell anyone when he’s breaking them. That is why Congress’ role is so important now. Unless Congress acts, nothing legally prevents this president from wiretapping Americans traveling abroad. Legal theory No. 2: The president, according to the Bush OLC, has Article II power to determine what the scope of his Article II powers are. This bald statement runs up against the Supreme Court’s 200-year-old decision in Marbury v. Madison, which states it is “emphatically the province and duty of the judicial department to say what the law is.” According to this president, he decides what the law is. There is an eerie parallel here to the “signing statements” the Bush administration has so prolifically issued, which assert executive power to rewrite legislation, without going to a court for a determination of the statute’s validity. Duty is to the Constitution Finally, remember theory No. 3: “The Department of Justice is bound by the President’s legal determinations.” We are a nation of laws, not of men. Our attorney general swears an oath to defend the Constitution and the laws of the United States, not to obey the president. That oath is not compatible with a president who tells the Department of Justice what the law is. At least in my opinion, the presidential authority to appoint the attorney general does not strip the attorney general of the duties that are the product of his office, and which may fall into conflict with doing the president’s bidding. The overheated view of executive power revealed by these secret opinions shows why Congress cannot put the authority to wiretap Americans, whenever they step outside America’s borders, under the exclusive control and supervision of this president. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The protections afforded Americans by our country’s checks and balances, by congressional legislation and oversight, and by judicial approval and review, are simple and longstanding. Americans deserve these protections wherever on God’s green earth they may travel. U.S. Senator Sheldon Whitehouse, D-R.I., is a member of the Senate Intelligence and Judiciary committees.

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