Working to Protect the Constitution and the Rule of Law

Foreign Intelligence Surveillance Act (FISA).  Shortly after 9/11, under intense pressure from the Bush Administration, Congress amended the Foreign Intelligence Surveillance Act to give the authorities broad powers in finding and fighting terrorists.  While Senator Leahy supported and still supports giving law enforcement the tools it needs, he fought the Bush administration when he saw a disregard for the Constitution and the potential for unnecessary violations of the civil rights of ordinary Americans.  He objected to the warrantless wiretapping of Americans and proposed a nonpartisan commission of inquiry to investigate abuses of power by the Bush Administration.  Under his leadership, the Judiciary Committee has tried to further amend the FISA to add key protections for the rights of the American people while maintaining the government’s ability to conduct needed foreign intelligence surveillance.  A pivotal provision of this legislation would prohibit the use and dissemination of intelligence collected on U.S. citizens in error.  In addition, Senator Leahy offered legislation to narrow the “state secrets” privilege, which allows the government to withhold materials under the cloak of national security. 

USA PATRIOT Act. When Congress first passed the USA PATRIOT Act in the wake of 9/11, Senator Leahy insisted on vigorous oversight to ensure that the new government powers would be implemented appropriately.  In 2006, when the USA PATRIOT Act was reauthorized, Senator Leahy continued to push for increased oversight, including new sunsets in the bill, and was one of only ten Senators to vote against its reauthorization.  Last September, Senator Leahy introduced legislation that would, along with  reauthorizing several expiring provisions of the USA PATRIOT Act; increase and improve judicial and congressional review of the use of surveillance authorities covering U.S. citizens; expand public reporting to ensure that Americans can monitor the use of these authorities; and impose new restrictions on the use of National Security Letters (NSLs), a form of administrative subpoena whose issue requires no probable cause or judicial oversight and, until overturned in court, included a gag order prohibiting disclosure that one was even issued.

Detainee Treatment/Guantanamo.  Senator Leahy has been supportive of the Administration’s efforts to close the Guantanamo detention facility and the Justice Department’s decision to pursue justice in federal criminal court against five of those responsible for terrorist acts against Americans – including 9/11 “mastermind” Khalid Sheikh Mohammed.  Last year he was one of only six Senators to vote to close the Guantanamo prison.  He knows that the American judicial system is perfectly capable of trying and convicting such individuals, as it has done time and time again.  He also held a Judiciary Committee hearing on the subject with Attorney General Holder.  

Habeas Corpus Restoration.  In September 2006, Congress passed the Military Commissions Act (“MCA”), which was opposed by Senator Leahy because it greatly reduced the rights of current and potential detainees and undermined the country’s commitment to human rights in several significant ways.  One of the most egregious was a provision permanently blocking non-citizens labeled as enemy combatants from filing a writ of habeas corpus—the so called “great writ” which guarantees a prisoner the right to challenge the legitimacy of their detention in court. 

Senator Leahy led an effort to strip this provision from the bill, contending that eliminating habeas rights not only applied to the detainees held at Guantanamo Bay, but would place the 12 million legal permanent residents in this country at risk of being picked up on any kind of suspicion and held forever without any ability to challenge that detention.  Opponents argued that restoring those rights would endanger national security.  Senator Leahy emphatically opposed such scare tactics, and pointed out that eliminating basic legal rights not only goes against our values, but also undermines our security and places American soldiers and citizens abroad at risk.  On June 12^th, 2008, in the case of Boumediene v. Bush, the Supreme Court ruled that prisoners detained as enemy combatants had the right to habeas corpus under the Constitution and that the Bush Administration’s law was an unconstitutional suspension of that right.

Office of Legal Counsel Torture memos.  Senator Leahy is deeply troubled by the detention polices and interrogation practices of the last administration, and in an effort to better understand the sequence of events that led us down that path, he has requested information and documents concerning advice from the Department of Justice's Office of Legal Counsel (OLC) related to those policies multiple times.

After being stonewalled on initial requests from the Bush administration, Senator Leahy issued a subpoena on October 21, 2008, for documents that constitute OLC's legal analyses starting from September 11, 2001. The subpoena issued seeks specific documents as well as any lists, logs or indices of any and all OLC memoranda, opinions, or legal advice created during that time period in connection with national security and terrorism polices.  The current administration has declassified some documents, but many remain to be seen.

Firing of U.S. Attorneys.  Senator Leahy chaired a series of hearings to investigate the mass firing of U.S. Attorneys by the Bush Administration.  These oversight hearings revealed how politics had been injected into law enforcement decisions and resulted in the resignation of Attorney General Alberto Gonzales and other high level officials at the Department of Justice. 

Independent Judiciary.  Senator Leahy is a strong defender of the independence of the federal judiciary.  As Chairman of the Senate Judiciary Committee, he has presided over hundreds of judicial confirmation hearings, including that of Sonia Sotomayor as the first Hispanic-American, and just the third woman, appointed to be a Justice of the Supreme Court.  Last year, Senator Leahy recommended to President Obama that Judge Christina Reiss be the first female federal district court judge in Vermont’s history.  After Senator Leahy presided over her hearing, she was confirmed unanimously by the Senate shortly after her nomination.   

While nominations to the Supreme Court are the most high profile appointments the Judiciary Committee is charged with, in order for the American justice system to remain effective the Committee must ensure that vacancies at all levels are filled as quickly as possible.  In his time as chairman during Bush Administration, Senator Leahy worked extremely hard to fill vacancies on the federal bench—100 nominees were confirmed during President Bush’s first two years in office and vacancies were reduced in nearly every circuit.  When President Bush left office, vacancies had been reduced in nine of the 13 Federal circuits.

Currently, the Senate is far behind where it should be in helping to fill judicial vacancies—vacancies have skyrocketed to over 100, and more have been announced.  Although Senator Leahy has worked efficiently reporting many of President Obama’s federal circuit and district court nominees from the Judiciary Committee to the Senate for final consideration, Republican obstruction has meant that the Senate has confirmed only a small percentage of Federal circuit and district court nominees, increasing the workload on all federal judges.  Often judges have been confirmed by unanimous votes after months-long anonymous Republican “holds.”

Fighting Financial Fraud.  Senator Leahy authored the Fraud Enforcement and Recovery Act of 2009, which was signed into law by President Obama on May 20, 2009. This law provides resources to restore our nation’s capacity to combat and prosecute mortgage and other financial frauds by authorizing the hiring hundreds of new Federal investigators, prosecutors, and forensic analysts.  It increases accountability for the corporate and mortgage frauds that have contributed to the recent economic collapse, and protects homeowners, retirees and taxpayers from future frauds.   

Wall Street Accountability.  Senator Leahy was a strong supporter of the financial system reform bill. He served on the conference committee that crafted the final bill, which was signed into law in July.  He knows that more transparency and oversight are vital to end the manipulation, speculation, and outright fraud that precipitated the near-collapse of our entire economy and cost Vermonters hundreds of millions of hard-earned dollars.
Senator Leahy worked to protect American taxpayers by including provisions to protect those who report fraud from retaliation and adding new tools to deter and punish fraud in our markets, which can cause so much harm to hard-working Americans.  Senator Leahy’s anti-fraud provisions will help to expose and deter the kinds of fraud that contributed to the current financial crisis and harmed so many hard-working Americans.  Because people who commit fraud often dismiss fines as merely a cost of doing business, these provisions also seek to ensure that those who commit serious fraud actually go to jail.