Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to speak briefly in opposition to the motion to invoke cloture. The amendment which I have filed goes to the heart of the issue on removing liability from the telephone companies to impose retroactive immunity. The amendment which I have filed and has been discussed on the floor of the Senate would substitute the Government for the party defendant, where the Government would have the same defenses--no more, no less. For example, the telephone companies do not have the defense of governmental immunity; and the Government, when substituted, would not have the defense of governmental immunity. The telephone companies can plead state secrets to foreclose the litigation; and when the Government would be substituted, for example, the Government could assert the doctrine of state secrets in order to foreclose the litigation. If the motion to invoke cloture is granted, I am advised by the Parliamentarian my amendment would not be germane and, therefore, would be stricken. We went through a long session last year where the argument was made, repeatedly and persuasively, not to invoke cloture-- the argument advanced on this side of the aisle--in order to give Members on this side of the aisle an opportunity to propose their amendments. Now we have the first situation sought to be applied, and it is my hope this body will reject the cloture motion. There has been very little time spent on this very important subject in this body, and when you have a matter of the importance of retroactive immunity, where you are going to shut off the courts of the United States from hearing cases that are already pending, there ought to be time for consideration of an amendment such as the one Senator Whitehouse and I have offered to substitute the U.S. Government. The purpose of our amendment is to comport with the basic constitutional provision of separation of powers, which is the cornerstone of the Constitution, and we have found, regrettably, it has been inadequate to have congressional supervision, congressional oversight, because of its ineffectiveness. For example, when the Judiciary Committee seeks to obtain records on the destruction of CIA tapes, you find the administration resisting and the inevitable argument of politics. When the court issues an order, as the Federal Court did last week for a report on the destruction of documents, seeking to find out what happened on the destruction of the CIA documents, the court can't be charged with politics. We find in Rasul, and in other litigation matters, the judicial branch has been effective in maintaining the separation of power. One further comment. It is a surprise to me that the amendment which I have offered with Senator Whitehouse has been ruled nongermane. I took a look at Webster's International Dictionary and germane is defined as: closely or significantly related; relevant; pertinent; closely akin. I consulted with a Parliamentarian and asked why our amendment was ruled as nongermane, and the answer given was because there was no specific statement of the underlying bill on governmental liability. In pursuing the issue with the Parliamentarian, I then said: I am going to seek to change the rules. It seems to me peculiar, if not absurd, that my amendment, the Specter-Whitehouse amendment, would not be germane under the common meaning of the English language. I said: Suppose we change the rules to provide that it was relevant? And the answer I got, and I don't want to misquote anybody, was that: Yes, that would stand the test of relevancy. As he put it, a more permissive standard. So then I checked the definition of relevant in Webster's International Dictionary, and it says: Bearing upon or connected with the matter in hand; to the purpose; pertinent, raise, lift up, syn applicable, germane, appropriate, suitable, fitting. Well, the key part about the definition of relevant is that one of the synonyms is germane, just as one of the synonyms of germane is relevant. Now, it is a loss to me. I have been here a while, and I have had a hard time understanding the ruling of what is germane, and I have never seen one as close to the core point as putting the Government as a substitute for the telephone companies, but somehow it is not germane. So I wish to put my colleagues on notice that I intend to try to change the rules. I can't see why one is necessary when Webster's has germane as a substitute for relevant and relevant as a substitute for germane. If the Parliamentarian thinks that relevant is OK, it is, again, hard for me to see why germane is not. A little surprising.

Mr. SPECTER. I will.

Mr. SPECTER. Less than a minute.

Mr. SPECTER. I thank the distinguished Senator from North Dakota. Well, I have made my argument. I think it is important to have a ruling, a vote by this body on whether we are going to apply retroactive immunity to the telephone companies. I said on the floor last week that if my amendment is not adopted, I will support retroactive immunity. I think it is a bad practice, but I think, as bad as that practice is, it would be worse to cut off the information which our intelligence community thinks we need. I think it is not advisable. And when we have a method of having both objectives, that is to have the Government have access to the information and at the same time not impose the cutting off of the judicial system for checks and balances, I think that ought to be adopted. And further, a final comment on the hard-to-understand definition of germane. The dictionary defines it as being relevant, and the dictionary defines relevant as being germane, with the Parliamentarian giving a supplemental opinion that if the standard was relevance, it would be appropriate to have the amendment. I thank the Chair, and I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment about the pending legislation on the Foreign Intelligence Surveillance Act and the so-called Leahy substitute. We are engaged here in the continuation of a historic debate. Confronted by terrorism on 9/11, the response has been made to legislate on the PATRIOT Act and the Protect America Act, in order to deal effectively with the terrorists. At the same time, there is great concern that there be an appropriate balance. While it is indisputable that our first duty is to protect America, it is also equally fundamental that the constitutional protections have to be kept in mind at all times, and it requires a balance. The beauty of the Constitution is the doctrine of separation of powers, so that no one branch has too much. This has been a classic confrontation of the executive asserting its authority under article II, and disregarding statutes, such as the Foreign Intelligence Surveillance Act, disregarding the statutory requirement that the Members of the House and Senate Intelligence Committees be informed of activities like electronic surveillance, with the President asserting that authority under article II, saying that it supercedes a statute. Congress has been ineffective on congressional oversight. The courts have filled the void, undertaking very significant action. A key part of what we are considering here today is whether there will be jurisdiction stricken on the pendency of many cases in the Federal courts challenging what the telephone companies have allegedly done or whether there will be continued access to the courts. It is my view, for reasons which I will amplify in the course of this floor statement, that there can be an accommodation to keep the courts open and to allow the electronic surveillance to continue. That can be accomplished by an amendment Senator Whitehouse and I intend to offer later today or perhaps tomorrow--at the first opportunity we have--where the litigation against the telephone companies would proceed, but the U.S. Government would be substituted as the party defendant. There is no doubt that the telephone companies have been good citizens in whatever it is they have done. Yet there is nothing on the record as to what really happened. Whatever it is they have done, the indicators are that they have been good citizens, although, in the course of having the Federal Government substituted for the telephone companies, there will have to be evidence of compliance with the governmental request, a compliance in good faith. The likelihood of verdicts being rendered, I think, in my legal judgment, is very remote. But that doesn't eliminate the requirement and the practice of keeping the courts open to make that determination. The Specter-Whitehouse substitution amendment will place the Government in the shoes of the telephone companies to have the same defenses--no more and no less. For example, the doctrine of governmental immunity would not be available to the Government. There have been those who have criticized the Specter-Whitehouse amendment, who have ignored the very basic proposition that the suits cannot be dismissed because of governmental immunity. On the other hand, by the same token, the state secrets defense will be available. In the lawsuits that are being prosecuted now against the telephone companies, the government has intervened to assert the state secrets doctrine. In fact, the Government has precluded the telephone companies from saying very much under that doctrine. When the Government is substituted for the telephone companies, the Government will retain the defense of the state secrets doctrine. Before going into the body of the argument in support of the Specter- Whitehouse substitute approach, I wish to comment briefly on the substitute offered by the Judiciary Committee and by our distinguished chairman, Senator Leahy, as the pending business. I begin by commending Senator Leahy for his work on the committee. For many years, we have worked together. His work as chairman has been exemplary, and there have been improvements that have been made by the modified Leahy substitute. Improvements have been made in that it clarifies that when surveillance occurs overseas, the FISA Court's role is limited to assessing probable cause and not the means of collection. It has further been improved by extending the length of emergency surveillance to conform to the Intelligence Committee bill's 7 days instead of 3 days. It has been improved by eliminating certain language criticized by the administration--and I think justifiably--as being overly broad. But it does retain the basic concept that the Foreign Intelligence Surveillance Act is the exclusive statutory procedure. So you preempt the Government argument that the Authorization for the Use of Military Force preempts and supersedes FISA. That argument has been made by the administration. I think it is a vacuous argument. In any event, this legislation would restate the proposition that the AUMF, or legislation like that, would not supersede FISA. The substitute offered by the distinguished chairman also has a change which allows the continuation of surveillance pending en banc review by the Foreign Intelligence Surveillance Court. It also improves a provision calling for an inspector general review of the terrorist surveillance program. I think, in essence, the substitute provision Senator Leahy has offered is an improvement over the prior bill. I regret that I cannot support it because it leaves out the provision with respect to immunity. While I do not like the provision with respect to immunity and think we can improve upon it, as I have said, by the approach of substituting the Federal Government for the telephone companies, I believe it is important to keep protecting the telephone companies in the picture and to benefit from the activities which they are undertaking. Therefore, I will not be able to support the substitute offered by Senator Leahy. It is my hope that the Specter-Whitehouse amendment will be adopted, substituting the Government. If that fails, then with reluctance I will support retroactive immunity. To repeat, I think that is not the preferable course. In dealing with the fundamental proposition of keeping the courts open, we have had an extended history in the past 2 or 3 years of the ineffectiveness of dealing with the expanded executive authority with congressional oversight. The PATRIOT Act reauthorization came out of the Judiciary Committee in 2005. I chaired it and was managing the bill on the floor of the Senate back in mid-December of 2005. I was very surprised that morning to read in the New York Times that the Federal Government had been undertaking the terrorist surveillance program without notifying the Intelligence Committees, as required by the National Security Act of 1947, and without notifying the chairman or ranking member of the Judiciary Committee. That was more than a surprise; it was a shock. We were nearing the end of the consideration of the PATRIOT Act reauthorization, and all of the indicators were that we would get it passed. Some appeared on the floor of the Senate that day to say that they had intended to support the PATRIOT Act reauthorization, but no longer, in light of the fact that there had been the terrorist surveillance program, unknown to Congress, in violation of the Foreign Intelligence Surveillance Act and in violation of the National Security Act of 1947. Now, it may be that the President was correct in asserting that he had article II power under the Constitution. If the President did have power under article II as Commander in Chief, then such power could not be reduced by legislation. That is a basic constitutional principle. But the determination of that really doesn't reside with the President alone. I then introduced legislation to bring the terrorist surveillance program under the Foreign Intelligence Surveillance Court. I will not take the time now to go through the lengthy efforts made in that regard. Suffice it to say that congressional oversight was not satisfactory. Where there has been a conflict between the Congress and the White House, the tools available to the White House have rendered the congressional oversight ineffective. When the Judiciary Committee has issued subpoenas, the subpoenas have been ignored by the White House, and the enforcement procedures are insufficient, really nugatory. In the first place, if litigated, they take at least 2 years to have a judicial decision. The law requires the U.S. attorney for the District of Columbia to bring the action. The U.S. attorney for the District of Columbia is part of the executive branch, and some in the Department of Justice have said forget about having the action brought. It is theoretically possible to have a contempt citation on the floor of the Senate, but it is a practical impossibility. So the efforts at enforcement of congressional oversight through the subpoena process has been to no avail. On the other hand, the courts have been effective. When the issue has arisen as to the detention at Guantanamo, the Supreme Court of the United States said in Hamdan that the Geneva Conventions applied, and in Rasul that habeas corpus was in effect, notwithstanding the fact Guantanamo was outside the territorial limit of the United States because the U.S. Government controlled Guantanamo. Where the Congress has responded with legislation, the issue is now before the Supreme Court of the United States again in the Boumediene case. The courts have been effective in asserting a balance, in asserting constitutional governance. A whole series of court cases have shown the effectiveness of the courts. For instance, in the Hepting case that is pending on the terrorist surveillance program, the district court rejected a blanket application of the state secrets doctrine. In the Padilla case, the Supreme Court's decision to take up the case led the government to file criminal charges. A New York case involving the national security letters, Doe v. Gonzalez, found that certain NSL gag orders were unconstitutional in light of the First Amendment. The Hamdan case involved a detainee by the U.S. Government. There the Supreme Court held that the President does not have a blank check to deal with detainees and that Congress had a role to play. In the Al-Haramain case, the Terrorist Surveillance Program was litigated by an Islamic charity that allegedly had a TSP derived transcript. The case Ninth Circuit decision upheld the government's assertion of the state secrets doctrine in that case. I do not go into great length on these judicial decisions but to note that when the court issues a order and insists on witnesses being presented on pain of having the case dismissed or on pain of having adverse action taken against the party who doesn't follow the court order, the courts have been effective. That is why, on a constitutional balance, I think it is very important not to foreclose action by the courts, not to, in effect, strip the Federal courts of jurisdiction of the many pending cases which have been brought against the telephone companies, and it can be done in a practical way, preserving the importance of law enforcement activities for whatever it is the telephone companies are doing by substituting the Federal Government as the party defendant. I am especially concerned about this issue in the context of what occurred back in June of 2006, when the Judiciary Committee, while I was chairing it, was trying to exercise congressional oversight, assert a constitutional balance with the executive branch, and we were unsuccessful for a variety of reasons. Where the Federal Government had the defense of executive privilege, it was impossible to move effectively on congressional oversight. But when it became known about the alleged activities of the telephone companies, I sought, as chairman, to have subpoenas issued. The Vice President then contacted Republican members of the Judiciary Committee, in effect, behind my back--the protocol is to call the chairman first; if not to call the chairman first, to call the chairman sometime--leading me to write a letter, dated June 7, 2006. I ask unanimous consent to have printed in the Record at the conclusion of my remarks this letter, dated June 7, 2006.

Mr. SPECTER. Mr. President, I did not like sending the Vice President a lawyer's letter, three pages, single spaced. It starts off--and I will read a short paragraph: Dear Mr. Vice President, I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the administration of my own party, but I do so because of their importance. And then I go into the issues of the expansion of executive authority in many directions, the refusal of the executive branch to accommodate legitimate congressional oversight, and complain about the Vice President's activities in contacting Republican members of the Judiciary Committee. To have the record complete, Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks the Vice President's response to me, dated June 8, 2006.

Mr. SPECTER. Mr. President, with that background, there is a particular sensitivity on my part to having retroactive immunity which I think would be an open invitation in the future for the executive branch to continue to ignore the statutes as the executive branch apparently ignored the Foreign Intelligence Surveillance Act that sets the exclusive way of getting wiretapping, a statement of probable cause to a judge, to ignore the National Security Act of 1947 in failing to notify the Intelligence Committees of the House and Senate as mandated, positively required, under that statute, to ignore that under the assertion of article II power. But the judicial branch of Government is the ultimate arbiter. To move to close the courts is a very serious and unwise step, especially when the objective can be retained of the law enforcement tools and having the litigation continue, of having the U.S. Government as the party defendant. I don't believe there will be verdicts against the Government, but if there are, it is part of the cost of doing business, part of the cost of fighting terrorism, and it ought to be borne by the U.S. Government, as opposed to being borne by the telephone companies which presumably have been good citizens, something they have to establish under the Specter-Whitehouse amendment to have the Government step in as a substitute. Where we stand at the present time is on the substitute offered by the distinguished chairman. Again, I compliment him for the work he is doing generally and specifically about our Judiciary Committee activities on the Foreign Intelligence Surveillance Act. I have noted a number of particulars where I think Senator Leahy's revised substitute has made improvements. To repeat, I regret I cannot support it because it leaves out the immunity provision. Again, I do not like the immunity provision and think we can improve it with the Specter-Whitehouse amendment. But if I am unsuccessful on that, then I will have to, at least speaking for myself, swallow the retroactive immunity provision on a balance of my own judgment as to the importance of having that kind of electronic surveillance, whatever it is, go forward, even with the retroactive immunity. It is my hope, when we consider the ramifications, that we can command the majority in this body, work through the legislation with the House of Representatives, and find a way to allow the Government to have the advantages of the electronic surveillance but not foreclose the courts by the remedy of having the Government substituted as the party defendant. I yield the floor. Exhibit 1 U.S. Senate, Committee on the Judiciary, Washington, DC, June 7, 2006. Hon. Richard B. Cheney, The Vice President, Washington, DC. Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance. No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration's continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues. On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration's electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in- controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration's position on this legislation, I have been unable to get any response, including a ``no''. The Administration's obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees. On that subject, it should be noted that this Administration, as well as previous Administrations, has failed to comply with the requirements of the National Security Act of 1947 to keep the House and Senate Intelligence Committees fully informed. That statute has been ignored for decades when Presidents have only informed the so-called ``Gang of Eight,'' the Leaders of both Houses and the Chairmen and Ranking Members on the Intelligence Committees. From my experience as a member of the ``Gang of Eight'' when I chaired the Intelligence Committee of the 104th Congress, even that group gets very little information. It was only in the face of pressure from the Senate Judiciary Committee that the Administration reluctantly informed subcommittees of the House and Senate Intelligence Committees and then agreed to inform the full Intelligence Committee members in order to get General Hayden confirmed. When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need subpoenas. I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval. I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information. I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table. At the request of Republican Committee members, I scheduled a Republican members meeting at 2:00 P.M. yesterday in advance of the 2:30 P.M. full Committee meeting. At that time, I announced my plan to proceed with the hearing and to invite the chief executive officers of the telephone companies who would not be subject to the embarrassment of being subpoenaed because that was no longer needed. I emphasized my preference to have a closed hearing providing a majority of the Committee agreed. Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch's proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration's approval of the bill which he thought could be done. When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record. It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes. If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance. We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson's office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes. All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to try to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President. Sincerely, Arlen Specter.

Mr. SPECTER. Younger prosecutors.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to discuss the State Secrets Protection Act of 2008. Senator Kennedy and I are introducing this bipartisan bill in order to harmonize the law applicable in cases involving the executive branch's invocation of the privilege. This bill is timely for several reasons. First, the use of the privilege appears to be on the rise in the post-September 11, 2001, era, which has generated new public attention and concern about its legitimacy. Second, there is some disparity among the district and appellate court opinions analyzing the privilege, particularly as to the question of whether courts must independently review the allegedly privileged evidence. Finally, a codified test for evaluating state secrets that requires courts to review the evidence in camera--a Latin phrase meaning ``in the judge's private chambers''--will help to reassure the public that the claims are neither spurious nor intended to cover up alleged Government misconduct. With greater checks and balances and greater accountability, there is a commensurate increase in public confidence in our institutions of Government. In view of its increasing use, inconsistent application, and public criticism, we think the time is ripe to pass legislation codifying standards on the state secrets privilege. Our bill builds upon proposals by the American Bar Association and legal scholars who have called upon Congress to legislate in this area. Mr. President, I begin my remarks by discussing some of the historical and more recent applications of the state secrets doctrine-- which have run the gamut from cases involving military aviation technology to CIA sources and methods, to extraordinary rendition and the terrorist surveillance program, or TSP. In the 1876 case Totten v. United States, 92 U.S. 105, 1876, the Supreme Court acknowledged a privilege that barred claims between the Government and its covert agents ``in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent.'' The Totten case involved a purported Civil War spy who sought to sue President Lincoln to enforce an alleged espionage agreement. In 2005, the Court reaffirmed the holding in Totten that ``lawsuits premised on alleged espionage agreements are altogether forbidden.'' Tenet v. Doe, 544 U.S. 1, 2005. Notwithstanding Totten, the modern state secrets privilege was first recognized by the Supreme Court in the 1953 case of United States v. Reynolds, 345 U.S. 1, 1953. Reynolds involved the Government's assertion of the military secrets privilege for an accident report discussing the crash of a B-29 bomber, which killed three civilian engineers along with six military personnel. In Reynolds, the Supreme Court set out several rules pertinent to the assertion and consideration of the state secrets privilege. For example, the Court said the privilege belongs to the Government. It can be neither claimed nor waived by a third party. The Court also held that the privilege must be asserted ``in a formal claim of privilege lodged by the head of the department which has control over the matter, after actual consideration by that officer.'' Further, ``the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.'' Significantly, however, the Supreme Court held that the material in question need not necessarily be disclosed to the reviewing judge. On this point, the Reynolds Court said: Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. Unfortunately, this limitation on judicial review ultimately led to further litigation and public skepticism when the accident report from the Reynolds case was later declassified--a result the State Secrets Protection Act seeks to avoid in future cases. In 2003, after the documents at issue in Reynolds were declassified, one of the original plaintiffs and heirs of the others brought suit alleging that the Government had committed a ``fraud upon the court.'' I cite Herring v. United States, 424 F.3d 384 (3d Cir. 2005), cert. denied by Herring v. United States, 547 U.S. 1123, May 1, 2006. They claimed the Government had asserted the military secrets privilege for documents that did not reveal anything sensitive simply to conceal the Government's own negligence. Nevertheless, both the district court and the Third Circuit declined to reopen the case after finding that the plaintiffs could not meet the high burden for proving a claim of fraud on the court. The Third Circuit wrote: We further conclude that a determination of fraud on the court may be justified only by ``the most egregious misconduct directed to the court itself,'' and that it ``must be supported by clear, unequivocal and convincing evidence.'' The claim of privilege by the United States Air Force in this case can reasonably be interpreted to include within its scope information about the workings of the B-29, and therefore does not meet the demanding standard for fraud upon the court. I cite Herring, 386-387. This ruling, however, did not end public debate on the matter. As recently as last October, the New York Times editorialized: ``[T]he Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. . . . When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.'' Upon learning of the Herring case, which was filed in Philadelphia, it became clear to me that codifying provisions for a court to use in ruling on state secrets cases was desirable for a number of reasons-- including the added legitimacy of having a judge evaluate the validity of the claim. I think that by requiring in camera court review, we will ultimately provide parties with greater trust in the integrity of the claim and, importantly, appropriate closure. The benefits of court review are illustrated by recent events in the Ninth Circuit. On November 16, 2007, the Ninth Circuit decided Al- Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. (Ca.) 2007), a case in which the plaintiffs challenged alleged surveillance of their organization under the terrorist surveillance program, TSP. The case stands out in TSP jurisprudence because the plaintiff alleged the Government had unwittingly provided proof that it was surveilling the plaintiff by inadvertently disclosing a partial transcript of phone conversations. The district court denied the Government's motion to dismiss on grounds of the state secrets privilege, but the Ninth Circuit reversed. Citing Totten and Reynolds, the Al-Haramain court acknowledged that when the very subject matter of the lawsuit is a state secret, dismissal without evaluating the claim might be appropriate. However, given all of the public disclosures concerning the TSP, the Al-Haramain court held that the subject matter of the lawsuit was not itself a state secret. Instead, the court concluded that it ``must make an independent determination whether the information is privileged.'' This is 507 F.3d at 1202. It did so by undertaking a full review of the privileged documents in camera. The Al-Haramain court described its review of the sealed document at issue and the balancing test it imposed: Having reviewed it in camera, we conclude that the Sealed Document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at face value the government's claim or justification of privilege. Simply saying ``military secret,'' ``national security'' or ``terrorist threat'' or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be--and has been--provided for us to make a meaningful examination. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system. That said, we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena. I cite 507 F.3d at 1203 The State Secrets Protection Act essentially codifies the Al-Haramain test by requiring courts to evaluate the assertion of a state secrets privilege in light of an in camera review of the allegedly privileged documents. I think it is highly advisable to codify both the means of asserting the privilege and the method for reviewing courts to go about resolving claims of privilege because the state secrets privilege is being asserted more frequently and the resulting decisions will benefit from more consistent procedures. Indeed, one recent study indicates that, of the approximately 89 state secrets cases adjudicated since the Supreme Court's decision in Reynolds, courts have declined to review any evidence in at least 16 cases. It is unclear whether the courts reviewed any evidence in another 16 cases, so the number could be as high as 32, or more than a third of the total. The current bill would end this practice. Reliable statistics on the use of the state secrets privilege are somewhat difficult to come by because not all cases are reported. The Reporters' Committee for Freedom of the Press claims that, ``while the government asserted the privilege approximately 55 times in total between 1954 . . . and 2001, [the government] asserted it 23 times in the four years after Sept. 11.'' With the use of the privilege apparently on the rise, the risk of abuse also grows. As I have noted, critics argue that the Government has abused the privilege to cover up cases of malfeasance and illegal activity. They point to the aftermath of Reynolds and more recently to the case of Khaled El-Masri, whose claim that the was subject to extraordinary rendition was dismissed following the Government's successful assertion of the state secrets privilege at the district and appellate court levels. This is El-Masri v. United States, 479 F.3d 296 (4th Cir. (Va.) March 2, 2007), cert. denied, 128 S.Ct. 373 (October 9, 2007). Although the Supreme Court declined to revisit the state secrets doctrine in the El-Masri case, there is ample cause for congressional action--both to protect legitimate secrets and ensure public confidence in the process for adjudicating such privilege claims. The State Secrets Protection Act establishes a clear standard for application of the state secrets privilege and creates procedures for reviewing courts to follow in evaluating privilege claims. Specifically, the Kennedy-Specter State Secrets Protection Act: Defines state secrets and codifies the standard for evaluating privilege claims: The bill defines ``state secret'' as ``any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.'' It requires Federal courts to decide cases after ``consideration of the interests of justice and national security.'' Requires court examination of evidence subject to privilege claims: The legislation requires courts to evaluate the privilege by reviewing pertinent evidence in camera. By statutorily empowering courts to review the evidence, the bill will substantially mitigate the risk of future allegations that the Government committed ``fraud upon the court,'' as asserted by the Reynolds plaintiffs 50 years after the landmark decision. Closes hearings on the privilege--except those involving mere legal questions: Under the legislation, hearings are presumptively held in camera but only ex parte if the court so orders. Requires attorney security clearances: Under the bill, courts must limit participation in hearings to evaluate state secrets to attorneys with appropriate clearances. Moreover, it allows for appointment of guardians ad litem with clearances to represent parties who are absent from proceedings. Permits the Government to produce a nonprivileged substitute: Consistent with the Classified Information Procedures Act, the bill allows for the use of nonprivileged substitutes, where possible. If the court orders the Government to provide a nonprivileged substitute and the Government declines to provide it, the court resolves fact questions involving the evidence at issue against the Government. Protects evidence: The proposed bill incorporates the security procedures established in the Classified Information Procedures Act and permits the Chief Justice to create additional rules to safeguard state secrets evidence. I commend the bill to all of my Senate colleagues.

Mr. SPECTER

Mr. SPECTER. I ask unanimous consent that the attached letter to the Honorable Ban Ki-Moon, Secretary-General of the United Nations, dated January 17, 2008, be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise to comment about a trip which I made over the recess during the period from December 22 of last year to January 4 of this year on travels which I undertook with visits to the United Kingdom, Israel, Pakistan, Jordan, Syria, Austria, and Belgium. The stop which Congressman Patrick Kennedy and I made in Pakistan was an extraordinary visit, a shocking visit, and a visit at a time of great tragedy. On Thursday, December 27, Congressman Kennedy and I were scheduled to meet with Benazir Bhutto in Islamabad. She had set the meeting for 9 p.m., at the end of a busy day of campaigning. While we were preparing to go that night to an earlier dinner with the President of Pakistan, President Musharraf, and then plans to go on to meet with Benazir Bhutto, we were informed, within 2 hours of our planned meeting with Ms. Bhutto, that she had been brutally assassinated. It was obviously a great shock, a great loss to Pakistan, obviously, a great loss to her family, and really a loss to the world because she had the unique potential to unite Pakistan and to provide leadership in a very troubled country. Pakistan has nuclear weapons, and it is an ongoing matter of concern as to whether those nuclear weapons are being adequately protected. President Musharraf assured us that they were. So did the Chairman of the Joint Chiefs of Staff. And we accept those assurances. But with Pakistan in a condition with militants there, there is always the worry and concern, and it would be reassuring, comforting, if there can be political stability in Pakistan. It is our hope that will occur with the oncoming elections. But whether Benazir Bhutto would have emerged as Prime Minister, as the leader, remained to be seen. But certainly she had extraordinary potential. Those who have seen her on television know she was a movie star, beautiful, charismatic, and beyond those features, a great intellect, educated in the United States, at Radcliffe, of course, at Harvard, Oxford--a real intellectual and a real leader in the political sphere. Her father had been Prime Minister. She had been Prime Minister. I had the opportunity to meet her some 20 years ago when my wife and I visited her at her family home in Karachi. She was a very disarming young woman. When I took some pictures of her, she asked if I would send her copies. She said nobody ever sent her copies of pictures which were taken. I was surprised, really sort of amused, because she was on the cover of People magazine at that time. You only had to pick up most any magazine on the stands and find a picture of a glamorous, beautiful, talented Benazir Bhutto. I visited her when she was Prime Minister in Islamabad in 1995. I discussed with her the possibility at that time of having the subcontinent nuclear free. Senator Hank Brown and I carried a message from the Prime Minister of India, Prime Minister Singh at that time, to have the subcontinent nuclear free. Then I had seen her from time to time in Washington. Beyond any doubt, she had the power to and the potential to be a great leader in Pakistan and the great potential to be a stabilizing force. I learned after she was assassinated, according to members of her own party, that she had planned to give Congressman Kennedy and me some documentation about the likelihood of vote fraud. I have sought information on those matters. I ask unanimous consent that at the conclusion of my statement, the full text of a lengthy 40-page report be printed in the Record, together with copies of the letters which I have sent to her family and to her political allies making inquiries about the information on vote fraud which reportedly she was interested in turning over to Congressman Kennedy and me.

Mr. SPECTER. With the assassination of Ms. Bhutto, it seems to me there is a need for an international investigation. By letter dated January 2, before returning to the United States, I wrote a letter to the Secretary General of the United Nations urging that there be an international investigation because of the obvious concerns as to whether security was involved or the kinds of conspiratorial theories which arise, whether there is any basis for them. President Musharraf of Pakistan had asked for assistance from Scotland Yard. My own view is that was insufficient because Pakistan would retain control of the investigation, but that would certainly be a step in the right direction. I supplemented that letter to the Secretary General on January 17, 2008, with a suggestion that the United Nations put into operation a standing commission to investigate international assassinations. The importance of immediate action and investigation is well known--to get to the scene, to preserve the evidence to the maximum extent possible, and to question witnesses while their memories are fresh and before they are potentially intimidated. Some of the doctors who attended Benazir Bhutto reported they had been told not to talk to the media. I think these ideas are ideas which are worth pursuing. The composition of the standing commission would have to be very carefully thought through. There would obviously be exemptions for nations which are capable of carrying on an investigation with the technical expertise and which would have the confidence of the public, but I think this is an issue which ought to be undertaken. The Wiesenthal Institute has published the idea, full-page ads in the New York Times, that assassination ought to be classified as a crime against humanity. That, too, is an idea, in my opinion, which ought to be pursued. But the lessons learned and the pain and suffering which comes from the assassination of a great leader such as Ms. Bhutto ought to be studied. We ought to look to the future to be sure that where there are recurrences--and regrettably, it is highly likely there will be recurrences--that we profit by that experience. In addition to traveling to Pakistan, Congressman Kennedy and I visited in Israel and in Syria. We talked to Prime Minister Olmert in Israel. We talked to President Bashar al-Asad in Syria. Both are national leaders and both expressed a desire to have a peace treaty. It is very difficult to assess the possibilities by talking, even with the probing questions, because it depends so much on a matter of trust. But I think it is worth noting that back-channel negotiations have been undertaken. A report has appeared in the Arabic press and specified in my written statement but has not appeared, to my knowledge, in the American press. We do know Israel and Syria came very close to an agreement in 1995, until Prime Minister Rabin was assassinated, and then again brokered by President Clinton near the end of his term in 2000. They came very close to an agreement, when it was reported that Syrian President Hafez al-Asad was more concerned with the succession of his son than in completing the treaty. Only Israel can decide whether it is in Israel's interest to give up the Golan, which is the central issue. But warfare is very different now than it was in 1967, when Israel took the Golan Heights. The rockets are impervious to elevated spots such as the Golan, and it is a very different strategic concern. But as Prime Minister Olmert commented--and I quoted him in the written statement--there are very material advantages which could come if Syria would stop supporting Hamas. It would promote the possibilities of a treaty between Palestinian President Abbas and Israel. If Syria would stop supporting Hezbollah and destabilizing Lebanon, there could be a great advantage. Such a treaty would have the potential of driving a wedge between Syria and Iran which would be of value. That is a very brief statement of the extensive written report which I have filed, and I appreciate it being printed in the Record, at the conclusion of my statement. I thank the managers of the pending bill for yielding this time, and I conclude my statement by yielding the floor. Exhibit 1 Statement of Senator Arlen Specter report on foreign travel to the united kingdom, israel, pakistan, jordan, syria, austria and belgium Mr. President, as is my custom from returning abroad, I have sought recognition to report on the recent trip I made overseas from December 22, 2007 to January 4, 2008. united kingdom On the morning of December 23, the delegation which included my wife Joan, Representative Patrick Kennedy, Christopher Bradish, a member of my staff, Colonel Gregg Olson, our escort officer and Captain Ron Smith, our doctor and me, departed from Washington Dulles International Airport for London, England. After a flight of just over 7 hours, we arrived at London Heathrow Airport. The following morning we departed for Tel Aviv, Israel. israel We arrived in Tel Aviv on the evening of December 24. We were greeted at the airport by Rachel Smith our control officer from the embassy. The following morning, I was briefed by DCM Luis Moreno and Political Counsel Marc Sievers on the latest developments in the region. The country team stressed that, prior to the Annapolis conference, tension in the region was high. The team informed us that Prime Minister Olmert and President Mahmoud Abbas have good chemistry and that the leaders remain optimistic that an agreement can be reached in 2008. We discussed some of the prevalent matters in the region including the situation in the Gaza strip, the dynamic between Fatah and Hamas, the Paris conference, the security situation in Israel and the political outlook for the region. Following the briefing, we departed for a meeting with Israeli President Shimon Peres. Having traveled to Israel 25 times during my tenure, I had come to know many of Israel's leaders including President Shimon Peres. I asked the President for his thoughts on how to break the cycle of violence and hate that reigns in the region. He provided his candid assessment of the prospects for peace but stressed that nothing can be solved without cooperation, a strong commitment to economic improvement which entails the creation of jobs in addition to aid money and the tangible benefits of changing the economic situation and the impact that has on changing people's lives. President Peres stated it was critical to support Abu Mazen and develop the West Bank. I asked Peres on the prospects for future dealings with Syria. The President said Syria should make a choice: Lebanon or the Golan. If they meddle in Lebanon, the Israeli's will not discuss Golan and that all other issues are secondary. I pressed President Peres on Iran and what he thought should be done. He stated that the U.S. needs a united, coherent policy to combat President Ahmadinejad's policy of enriching uranium. He complimented President Bush in showing courage, but that the capacity to build a coalition was absent. Peres did not express great alarm about Iran as he believes that the world will not allow the Islamic Republic to acquire nuclear weapons. I asked if there were any lessons from our diplomatic engagement with North Korea to which he responded by highlighting the benefits of diplomatic and economic efforts. I mentioned to Peres that we would be traveling to Pakistan and solicited his thoughts. He believes that religious fanatics in the region are a massive problem for the government and that the U.S. should not force Pakistan and its leaders to be an American democracy--a theme that would continue in our meetings in Pakistan. He did not believe that the situation between Pakistan and India would lead to war but that it is imperative that Pakistan secure its nuclear arsenal--something with which I strongly agree. President Peres suggested that oil is our great enemy: It finances terror, makes a mockery of democracy, negatively impacts the environment, and undercuts ideological foundations. He called for increased efforts to pursue alternatives to fossil fuels. When asked about his view on our engagement in Iraq and Afghanistan, Peres stated that we have no choice but to combat radical extremism and those who think modernity will end. He elevated the struggle to one of those in the modern world versus those who are not able to deal with the fact that science has replaced them. He pointed to the fact that you cannot find an Israeli hospital without an Arab doctor. And even an Israeli who will not hire an Arab has no problem with one operating on him with a knife. When discussing our bilateral relationship, Peres said: ``The less we need America, the more friendly our relations will become.'' President Peres ended the meeting by extending an invitation for us to come back to Israel for the sixtieth anniversary of Israel. We left the President's office for our next meeting at the Knesset with former Prime Minister and Likud party leader, Benjamin Netanyahu. The focus of our discussion with Netanyahu and Zarman Shoval centered on Iran. He expressed his support for continued economic pressure in the form of sanctions and pension fund divestment. He reported that U.S. states divesting from companies, mostly European, doing business with Iran is having an impact. Netanyahu concluded that Iran's building of long range weapon platforms and its increased centrifuge activities leaves it with very little left to do to obtain a nuclear weapon. A theme in my discussions with Israeli officials, in Washington, DC and Israel, is that our Nations don't differ on the facts but we do differ on the interpretation. He was not convinced that Iran halted its program and more importantly that we do not know if Iran restarted its efforts. In addition to talking about unilateral actions, Netanyahu recommended that we work with the Europeans and form a unified front with Russia. He stressed the importance of ``turning back the momentum'' domestically and internationally to combat Iran. I asked Netanyahu what can be done to break the cycle of violence and hatred. He said this is a battle between modernity/globalization and militant Islam and that this ``culture of death'' with nuclear weapons could lead to catastrophe. Militant Islam, according to Netanyahu, works by brainwashing individuals. The information and economic revolution could be the best weapon against this ideology as a form of combating brainwashing. Following our meeting with Netanyahu, we departed for a meeting with Former Prime Minister and current Defense Minister, Ehud Barak. I had met with Barak when he was in Washington, DC attending the Annapolis conference. He provided me an update on Israeli security service actions and intelligence gained since we last spoke. I asked the Defense Minister to provide his views on breaking the cycle of violence and hatred and his outlook for the region. Barak believes that we cannot reshape but can guide and offer a path of more opportunity. He expressed his support for strengthening moderates like Abu Mazen and Salaam Fayyad and that he is more optimistic dealing with these leaders than he was when serving as Prime Minister dealing with Yasser Arafat. I asked him about coming close to an agreement in 2000 with Chairman Arafat. Barak said the gap may have been narrow, but it was very deep. When asked about Lebanon and Syria, Barak said Syria continues to destabilize Lebanon. He pointed to the recent assassination of Francois El-Hajj, who was expected to be Lebanon's new Army commander in chief should General Michel Suleiman take over as President. Barak believes that Syria would not stand to see the deputy elevated and that Syria wants a government that will request the U.N. to halt its investigation in the Hariri assassination--an attack that some suspect was orchestrated by Syria. When I asked Barak about his peace efforts while serving as Prime Minister with Syria, he indicated that there was an opportunity, but Hafez Assad was more concerned about his son's succession than peace. On Iran, Minister Barak reiterated that the information between U.S. and Israeli intelligence is 95 percent the same, but that different interpretations persist. Barak expressed concern over Iran's hidden program and that they are not likely to cooperate. I asked about getting Russia to assist and President Putin's offer to handle part of Iran's fuel cycle. Barak stated that Russia wants to see the U.S. squeezed right now but that we must engage China and Russia if we want to have success on this front. We departed the Knesset for our next meeting with President Mahmoud Abbas and Salaam Fayyad in the West Bank. On Christmas Eve, we loaded in our convoy bound for Bethlehem in the Palestinian-controlled West Bank. Security was tight as we left Jerusalem and entered the West Bank with security personnel lining both sides of the street every 100 yards. Upon arrival we were greeted by Salaam Fayyad, the well-respected, western-educated finance minster, with whom I've had a relationship for some years. I asked Abu Mazen about the status of talks and prospects for peace. He shared his optimism and informed me that he would be meeting with Prime Minister Olmert in two days. He described 2008 as precious and that he will work with the Israelis to reach a deal. He expressed his concern over Israeli settlement activities and the negative impact this could have on the process. President Abbas informed the delegation that Hamas' popularity was subsiding but that they are still receiving assistance through tunnels and border crossings. Should these not be blocked, money and weaponry still can flow to Gaza. While this type of activity harms the process, he indicated that humanitarian aid must flow to Palestinians residing in the West Bank. The delegation pressed Abu Mazen about anti-Israeli Palestinian decrees and expressed that these are not acceptable. The President responded emphatically by saying, ``I am the head of the PLO, I am the head of Fatah and I am recognizing Israel and we want peace.'' Congressman Kennedy asked President Abbas about comparisons to the successful peace talks in Ireland and the prospects for transferring some of the mechanisms employed to the Middle East. Abu Mazen said there are elements that can be utilized especially in the arena of people to people programs. Salaam Fayyad shared his gratitude for the pledges made in Paris and informed us that debt is being paid and the economy showing signs of improvement. He cited that hotel occupancy rate is near 100 percent which is up from 5-10 percent earlier this year. He expressed his desire for implementing larger infrastructure projects and a reduction in Israeli restrictions, such as check points, which hinder businesses. We concluded our meeting and returned to Jerusalem. On December 25, we had a morning meeting with Prime Minister Ehud Olmert. The Prime Minister requested I brief him on developments in the United States and our views towards the region. Olmert asked about the U.S. role in moving forward with Syria and if anything can be done given their meddling in Lebanon. I told him I thought there is a chance based on the progress made in 1995 and 2000. I told him of my discussions in Washington, DC with Syrian officials and that they expressed their interest in talks. I told him I thought that the status of the Golan Heights would be the crux of the negotiations. Olmert told me he is prepared to negotiate with Syria but that it is a long process that needs to mature and that Syria must deliver, not just talk. I pressed Olmert about what actions he had taken and who would make the first move. I reminded Olmert that Henry Kissinger said it took 34 negotiating sessions with Hafez Al-Assad to get an agreement. Prime Minister Olmert said the National Intelligence Estimate on Iran was not helpful in efforts to combat Iran's suspected nuclear weapons program. When asked if he thought they stopped in 2003, Olmert replied, ``I don't know.'' He expressed his hope that U.S. intelligence based its findings on solid facts. Olmert, like Netanyahu, stated that if they have enough uranium they can do everything else needed to make a weapon in short order. Nevertheless, Olmert stated that we must carry on impressing upon Iran to change their course. I requested specifics on how to confine Iran's nuclear weapons program to which Olmert cited the usefulness of economic pressure such as sanctions. He expressed displeasure that the debate has been confined to two options: Military action or acquiescence. The Prime Minister said he will raise alternatives with President Bush during his January 2008 visit. Representative Kennedy asked Olmert about the Gaza-Hamas- Egypt nexus and the problems associated with smuggling. Olmert confirmed that the movement of money, weapons, to include anti-tank and anti-air missiles, and terrorists across the Philadelphia line is a major concern. He indicated displeasure with Egyptian acquiescence on this front and said that he had raised his concerns with President Mubarak and that he would be dispatching Defense Minister Barak to Egypt the following day to follow up on these issues. I asked the Prime Minister about the reported ``offer'' from Hamas for a ceasefire. Olmert said that no offer was made, but rather a journalist reported receiving a call from Hamas indicating an interest and that the media subsequently played it up. He questions the logic of negotiating with Hamas as all it would do is provide Hamas an opportunity to re-arm and Israel would get nothing. He made clear his stance that he is not inclined to negotiate with a group who wants to kill Israelis and refuses to recognize the state. On the Israeli-Palestinian track, Olmert stated that Abbas and Fayyad recognize Israel and want to make peace and are serious, committed partners. When we discussed breaking the cycle of violence and hate in the region, Olmert pointed to Abbas as an example as someone who changed, became a legitimate political leader and sees things differently than he did 30 years ago. However, the question if the two sides can agree on outstanding issues in unknown. He believes reaching an agreement in 2008 is possible but that implementation would take more time. I pressed the Prime Minister about the settlements controversy raised in the media and directly by the Palestinians. He explained that he has established a complete moratorium on new settlements, but that Israel can build on plans previously approved at current sites. We departed the Prime Minister's office for our next meeting with Foreign Minister Tzipi Livni. I called on Tzipi Livni to get her perspective on the Israeli-Palestinian track, Syrian-Israeli track and broader regional matters. Livni believes Abu Mazen and Salaam Fayyad are sincere in their goals for peace and in refraining from using terrorism. She supports the approach of strengthening pragmatic Palestinians like Abbas and Fayyad. She went so far as to say that Salaam Fayyad is a determined person in this process and has exhibited real courage. I asked the Foreign Minister about economic development for the Palestinians and the strategy to elevate their situation. She said development was important but that we should not look to it as the sole source to bring about change. Minister Livni stated that Israel cannot afford another terrorist state, a real partner in peace must be found and the only way to achieve a Palestinian state is through negotiations, not terror. She appreciated the rights of Palestinians and the impacts of security measures, but stated that Israelis have a right not to live in fear and endure terror. That afternoon, the delegation met with Saeb Erekat, the Palestinian's chief negotiator. I had met with Saeb in the past and found him to be an intelligent and insightful player on understanding the conflict. Saeb informed me that the Israelis and Palestinians have ``matured'' and that there is a genuine need for the peace process. He expressed his view that the sides are in agreement on 70 percent of what a pact would entail but that no outside country can finalize a deal--it must be done by the Israelis and Palestinians--it must be done by Olmert and Abbas. Saeb and I talked about the broader Middle East and regional conflicts. He believes that democracy in the Middle East will defeat Al Qaeda and if negotiations between Israel and the Palestinians fail, Osama bin Laden wins. He expressed his optimism that a deal can be reached in 2008 and that both sides are prepared for peace. He stated that there needs to be a package deal and both sides know exactly what the other wants--Israel wants no refugees and security and the Palestinians want Jerusalem and land. On the issue of Iran, Saeb said that Iranian nationalism cannot be overlooked when approaching Tehran. He expressed frustration over anti-Israeli comments made by President Ahmadinejad: ``When he says he wants Israel off the map, he is killing me!'' He cannot comprehend why Iran would support Hamas in Gaza and pointed out that Abu Mazen has been invited to Tehran nine times and never responded. He suggested that Iran wants a deal and is willing to make one with the U.S. or international community. Saeb closed by indicating that progress on the Syrian- Israeli track would be beneficial to the Palestinian-Israeli track. The following morning we drove from Jerusalem to Tel Aviv en route to Pakistan. pakistan We landed in Islamabad, Pakistan on the night of Wednesday, December 26 and were met by our control officer Jason Jeffreys. The following morning, we met with Hamid Karzai, President of Afghanistan, in his hotel room. President Karzai was in Islamabad for officials meetings. President Karzai stated that U.S. efforts in Afghanistan are working, roads are being built, economies are being turned around and schools are improving. I pressed President Karzai on the prospects for victory over the Taliban and Al Qaeda. He stated that he and President Musharraf had focused on this issue in their meeting earlier and that it was a priority. Karzai stated that the Taliban is not a long term threat in Afghanistan as they have no popular support. The President stated that more must be done to address the sanctuaries, training grounds and madrasas. I asked Karzai about the prospects of catching Osama bin Laden. The President told me that he will not be able to hide forever and that sooner or later he will be caught. I asked President Karzai about Iran's pursuit of nuclear weapons. He stated that nuclear weapons in the region bring pride and a sense of security. He stated that Iran and the U.S. should open a dialogue, talking pays and that no one can benefit from confrontation. Following our meeting with President Karzai, we departed for the embassy for the country team briefing led by Ambassador Patterson. The delegation, including Ambassador Patterson, departed the embassy to our next meeting with General Tariq Majid, Chairman of the Joint Chiefs of Staff. General Majid's headquarters are located in Rawalpindi--the same part of Islamabad where Benazir Bhutto would be killed later that same day. I pressed Gen. Majid on Pakistan's efforts to combat Al- Qaeda and locate Osama bin Laden. He indicated that he does not know where he is but that Pakistan should be able to find him but that it must be an integrated and combined effort with U.S. support. I expressed my concern over the problems in the FATA region and asked what is being done to combat the issues plaguing that region and the country. He responded by telling me that for many years, Pakistan did not have access to the tribal belt but that military forces were now engaged--100,000 according to Majid. I told the General of my concern over Pakistan's nuclear arsenal and the command and control structures in place to ensure the weapons do not fall into the hands of militants. He informed me that there is a structure in place that ensures that there can be no rogue launch of nuclear weapons as the President, Prime Minister, Foreign Minister, Defense Minister and the service chiefs all have to approve usage. I expressed my desire to see the Indian subcontinent denuclearized--a matter I had taken up with the Prime Ministers of India and Pakistan over a decade earlier. Majid informed me that Pakistan had made such an offer to India but that it was rejected. Pakistan claims its arsenal is an insurance policy against the much larger Indian force and that they do not have regional ambitions. India not only looks at Pakistan but looks east towards China and would not likely give up their arsenal with such a neighbor. China would be unlikely to surrender its weapons given the considerable arsenals of Russia and the United States. I expressed my concern over Iran's nuclear activities and ambitions. Majid indicated that Pakistan did not have a problem with a peaceful program but that they object to high levels of enrichment. Any military action against Iran, Majid said, would compound problems in Pakistan. He suggested bilateral talks between the U.S. and Iran as the path leading us out of this dilemma. I told Gen. Majid of my great concern over the situation in Pakistan, the political crisis, the removal of members of the judiciary and the imprisonment of citizens. I told him there was great concern in the United States and talk of altering U.S. aid to Pakistan's military. Majid asked us to remember that Pakistan is not the U.S. and that their democracy and institutions are not as strong as ours. He asked us to review the actions taken by the Chief Justice as he claimed he was acting beyond his jurisdiction. Following our meeting with Gen. Majid, we were received by President Pervez Musharraf at his palace. He expressed his satisfaction with bilateral relations but indicated that stopping the military cooperation would negatively impact the relationship. I pressed Musharraf on the reported misuse of aid and overcharging on reimbursements. The President objected to the characterization of his government's actions claiming that all requests are analyzed, mutually agreed upon and submitted. I asked Musharraf about his efforts to combat terrorism. He generalized about his government's efforts to combat the Taliban and Al Qaeda. He indicated that actions in Afghanistan have led to an overflow of troublemakers in western Pakistan. When I asked if he will catch Osama bin Laden, he responded that he, ``can't say for sure, but we should.'' He claimed he does not have the forces required to search and police some of the areas he may be hiding. I informed the President that we want transparency in Pakistan and events such as removal of the Chief Justice cause grave concern. I told Musharraf responded by saying Pakistan has various pillars of government like the U.S. but that their institutions are not as strong and capable as those in the U.S. He indicated that the Chief Justice had acted inappropriately and that his activities included corruption, kickbacks and inappropriately using his influence, which would not be tolerated in the United States. Musharraf stated the Chief Justice was doing an injustice to Pakistan, interfering in various cases in other courts, actively campaigned in political rallies, traveling with his own masked security detail and interfering with the executive branch in privatization matters which had led to Pakistan's recent economic success. When I pressed Musharraf on the rationale of imposing martial law, he stated that the government was weakening, economy declining and terrorists rising and that it was needed to maintain stability. He stated that most people that were detained had been released. We departed the Presidential Palace for a working lunch at the Ambassador's residence to further evaluate and discuss the issues confronting Pakistan and our bilateral relationship. Attendees included Ambassador Patterson, General Helmly, Peter Bodde, Candace Putnam, Jason Jeffreys and the delegation. On the afternoon of December 27, we received word in our control room that there had been an incident at a political rally for Benazir Bhutto. As we were preparing for a dinner hosted by President Musharraf we got word that she had possibly been injured and was taken to the hospital. As I headed to the elevators, Chris Bradish, my deputy, informed me that Benazir had died. I had known her for nearly 20 years. We were scheduled to meet with her in her home at 9 p.m. that night--in approximately 3 hours. I received many calls and e-mails from the U.S. requesting information on the situation. Below is a transcript of a phone conversation I had with MSNBC: HALL: On the phone with us now is Senator Arlen Specter, who is in Islamabad and was, according to what I'm being told, expected to meet with Benazir Bhutto sometime tonight. Senator, are you there? SPECTER: I am. Congressman Patrick Kennedy and I were scheduled to meet with Benazir Bhutto this evening. We were scheduled to go to a dinner with President Musharraf. We had met with President Musharraf earlier today and, en route to the dinner, about ready to go, we heard the tragic news. HALL: And how did you learn the news, sir? SPECTER: Watching CNN. We heard, first, that there had been a suicide bomber attempt, that Benazir Bhutto was OK. Then we heard she'd been hurt, critically, and then the news came in that it had been fatal. HALL: And tell us a little bit about what you were planning to meet with her regarding. We know that Hamid Karzai met with her, as well as Pervez Musharraf, on the security issue concerning the border of Afghanistan and Pakistan. What was the focus of your meeting? SPECTER: Well, Congressman Patrick Kennedy and I are in the region. We had been to Israel on our way to Syria. And we had meetings with President Musharraf today, and we also saw Afghanistan President Karzai, who just coincidentally was in town. And we had a meeting with former Prime Minister Benazir Bhutto this evening at nine o'clock Pakistan time, and it was scheduled then because she had a full day of campaigning. And our concerns are about what is happening here, the stability; what's happening with the supreme court; what's happening with our fight against terrorism, our efforts to capture Osama Bin Laden; and what is happening to the very substantial funding the United States has put in here; what the prospects were for the election. I've known Benazir Bhutto for the better part of two decades, having been visiting her in Karachi back in 1988 and when she was Prime Minister in 1995. And we were looking forward to talking to her to get to her evaluation on whether the elections would be honest and open, and to get her sense of the situation. HALL: And what did you think her--the impact that she played while, of course, she was alive, with her opposition group, and now with her assassination? Obviously, you felt that she was important, a critical piece of this puzzle, in that you were planning to meet with her at 9 p.m., at the time there. SPECTER: Well, Benazir Bhutto was a very prominent person this year, the leader of a major party; had a real opportunity to become Prime Minister, a brilliant woman with a family background. Her father had been Prime Minister. She had been Prime Minister twice. She had a lot of popular support, and she was the first woman Prime Minister of Pakistan and a very prominent woman internationally, sort of, the symbol of modernity, so that it's a tremendous loss, and we. . . HALL: And what do you think is the . . . SPECTER: . . . we can't let the terrorists win. We have to rebound and we have to be sure that democracy moves forward in Pakistan. HALL: But Senator, we're looking at the images out of Pakistan, and I don't want to paint a picture bleaker than it is, but certainly, immediately following the assassination, people spilling out into the streets blaming, some of them, anyway, Pervez Musharraf--quite a picture of instability. What needs to happen, in your opinion, being there? SPECTER: Well, it is easy to blame people, but it's premature. There has to be an investigation. There has to be determination, to the extent possible, as to what happened. When you have an assassination, this sort of a violent act, you have to expect people to be erupting in the streets. But there will be a tomorrow. There will be elections here. We have to assert the democratic process and we have to move forward. We cannot let the crazy suicide bombers take over the world. And that is our job for tomorrow. HALL: And still very early into this breaking news, Senator--again, to update our audience, we are following developments in Pakistan in the assassination of former Prime Minister Benazir Bhutto. Senator Arlen Specter was expected to meet with her this evening. Senator Specter, the impact--so many people are wondering, with Pakistan being so crucial to this war on terror, that there may perhaps be a vacuum in that country, now, with the assassination having taken place and this could offset all of the work, the $10 billion that's been put into Pakistan and the support of Pervez Musharraf since 9/11. SPECTER: Well, we are not going to allow this incident, tragic as it is, to upset the very important work at hand. You have the Pakistani government working with the United States government. They have been allies of ours. We have not been pleased with some of the things that they have done, like having the chief justice under house arrest or having an emergency suspension, which has been eliminated. But the elections are going forward and we are going to rebound from this event and do what is necessary to defeat the terrorists and to have the democratic elections. We are not going to give in. And we will rebound, and stability will be restored after the outbursts which are present tonight. It may take some time, but we're going to win. HALL: Senator, do you have confidence in Pervez Musharraf and the job that he's done and doing? SPECTER: I do have confidence. When Congressman Patrick Kennedy and I met with him today, we raised a number of our concerns in a very candid discussion. We are concerned that the substantial U.S. funding be directed toward the specific purposes of fighting terrorism. And we are checking to see if some of it might have been diverted. But by and large, we think the monies are going in the right direction. We expressed concern about what is happening with the supreme court here. We expressed concern about the state of emergency, but that has been reversed. The elections are going forward and he is our best hope there. It is not a perfect situation. Nothing is. But we have to utilize the government which is here to help stabilize it and to move forward. HALL: All right, Senator Arlen Specter from Islamabad. Thank you very much, Senator, for your time, just on the very day you were expected to meet with former Prime Minister Benazir Bhutto. Thank you, Senator. Just before midnight on the night of Bhutto's death, we ventured back out into the city to go to Bhutto's local headquarters to pay our respects. We met with her supporters, gave our condolences and laid flowers beneath a photo of her. We were scheduled to travel to Lahore the following morning to meet with Chaudhry Pervaiz Elahi and Mian Shahbaz Sharif and visit a USAID project. After the State Department consulted with the Pakistani government, it was recommended that our delegation cancel the planned trip to Lahore due to the deteriorating and uncertain security situation. The following morning we left Chakala Airfield for Amman, Jordan.

Mr. SPECTER

Mr. SPECTER. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to address the pay raise given to members of the U.S. military. On December 28, 2007, President Bush vetoed the National Defense Authorization Act for Fiscal Year 2008 because of a disagreement over a provision in the Justice for Victims of State Sponsored Terrorism Act of 2007. The disagreement over language in the Justice for Victims of State Sponsored Terrorism Act has affected far more individuals than the legislation itself addresses. By holding up the signing of the National Defense Authorization Act for Fiscal Year 2008, it jeopardized the pay raise which was promised to our Nation's servicemen and servicewomen. On January 4, 2008, the President issued Executive Order 13454, which gave all members of the military a 3-percent pay raise effective January 1, 2008. I commend the House for its January 16, 2008, decision to make retroactive to January 1, 2008, a 3.5-percent pay raise for members of the uniformed services. This was the number that the House and the Senate agreed upon before we sent the bill to President Bush in December; I think it is only fair this be the number we return to when we again submit the bill to the President. The men and women of the military should not be made to suffer for disagreements between the Congress and the White House.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to discuss the current situation with regard to siting of the American Revolution Center at Valley Forge, a museum dedicated to interpreting, honoring, and celebrating the complete story of the entire American Revolution, within Valley Forge National Historical Park in Pennsylvania. I have been working with the American Revolution Center for a number of years, and there has been no shortage of challenges. The current challenge is related to zoning issues in Lower Providence Township, Montgomery County. The township has approved a zoning ordinance to enable development of the American Revolution Center on a 78-acre parcel of land that is within the federally authorized boundary of Valley Forge National Historical Park but not owned by the National Park Service. The 78-acre parcel is part of a larger 125-acre tract of land that is in danger of housing development. Not only would the American Revolution Center, a tax-exempt 501(c)(3) organization, develop a museum dedicated to the Revolutionary War, but it would also preserve the remaining 47 acres as open space. I have supported appropriating Federal funding to acquire the aforementioned land that is in jeopardy of residential development. In fiscal year 2005, I helped secure $1.5 million for the National Park Service to begin acquiring 85 acres that were related to the 125-acre tract that is now connected with the American Revolution Center. In fiscal years 2006 and 2007, I supported the appropriation of $9 million and $3.1 million, respectively, for the Park Service to complete the 125-acre acquisition. However, due to increasing fiscal constraints, no funding was available at that time to continue the project. Additionally, in fiscal year 2004, I helped secure $5 million for the National Park Service to acquire other land within the Valley Forge boundary to also prevent it from housing development. By the American Revolution Center taking possession of this land, it is easing the financial and obligatory burden of the Federal Government to preserve this sacred ground. Additionally, I am confident that those in charge of the administration of the American Revolution Center will be responsible stewards of the historical integrity of the land and ensure its conservation for generations to come. I am also confident that the Lower Providence Township managers, the local governing branch, will appropriately manage the zoning ordinance for the 125-acre tract under current direction of the American Revolution Center to guarantee its conservation should the museum ever vacate the property. Thus, recognizing the importance of Valley Forge to the founding of the United States, the creation of a museum to celebrate its history and preserve the park's integrity is a positive development. Local government decisions regarding private land use ought to be respected, and I strongly urge the Department of the Interior, the National Park Service, and the American Revolution Center to work cooperatively to expedite the creation of this museum, which is long overdue.

Mr. SPECTER

Mr. SPECTER. Mr. President, I congratulate David J. Williams for his 30 years of service to the vaccine industry and Pennsylvania. Mr. Williams was born in Scranton, PA, and received his accounting degree from the University of Scranton in 1973. He then joined Connaught Laboratories in 1978 as the manager of financial services. Mr. Williams was a member of the executive team and was named chief operating officer of Connaught Laboratories in 1989. Mr. Williams steered the company through several mergers and acquisitions, growing the organization from 100 employees and sales of just over $5 million in 1978, to the creation of today's Sanofi Pasteur, the world's largest vaccine manufacturer with 11,000 employees and more than $4 billion in sales in 2007. Under Mr. Williams' guidance, more than a billion doses of Sanofi Pasteur's lifesaving vaccines are administered to more than 500 million people around the world each year, representing more than 25 percent of the global vaccine market. Mr. Williams recognized his company's ability to address current and future public health needs by investing in a research and development program and a production plan for pandemic preparedness in the event that a public health emergency strikes the United States. Mr. Williams and Sanofi Pasteur have helped to build the domestic infrastructure necessary to protect millions of Americans from deadly diseases, while addressing public health around the world. Mr. Williams has served as an advocate for the survival of the vaccine industry. I am told that in 1986, when the industry was being diminished by lawsuits, he served as the industry point person for negotiation of The National Childhood Vaccine Injury Compensation Act, which established the Vaccine Injury Compensation Fund. In his dedication to the larger immunization community, he created the Vaccine Policy Committee of the Pharmaceutical Research and Manufacturers of America and is a founding member of the Partnership for Prevention which includes public and private sector representatives who focus on preventative health care policies. Mr. Williams served as the first liaison member of the Advisory Committee on Immunization Practices to the U.S. Centers for Disease Control and Prevention, which sets immunization policy in the United States. He has also served on the board of directors of the Biotechnology Industry Organization, Blue Cross of Northeastern Pennsylvania, the Hospital Service Association of Northeastern Pennsylvania, and the Board of Regents of the University of Scranton. He is one of the founding board members of the Medical Education Development Consortium. I am advised that Mr. Williams has cultivated a culture of community involvement at Sanofi Pasteur and demonstrated a commitment to philanthropy through the company's contributions to United Way and donations of vaccines through UNICEF, the Global Alliance for Vaccines Immunization, GAVI, the World Health Organization's Global Polio Eradication Initiative and various humanitarian relief efforts. Mr. Williams has also been committed to the economic growth and development of the Commonwealth of Pennsylvania. This includes expanding the impressive campus in Swiftwater to maintain a domestic manufacturing base for many vaccines, including influenza. Under his guidance, Sanofi Pasteur has grown to be the largest private employer in Monroe County and a purchaser of over $145 million in goods and services from Pennsylvania-based vendors. I have been pleased to assist in this important expansion through appropriation of Federal funding which not only benefits the county but the entire Commonwealth and Nation. On January 16, 2008, after 30 years of service, David J. Williams will retire as the chairman, president, and chief executive officer of Sanofi Pasteur. I commend Dr. Williams for his distinguished career and leadership in the advancement of immunizations and the eradication of vaccine-preventable diseases.

Mr. SPECTER

Mr. SPECTER. I have sought recognition to introduce two bills with a view to aiding an emergency economic stimulus package. I am pleased to see that the President and the Democratic leaders of the House of Representatives and the Senate have stated their intentions to work together to provide an economic stimulus package. There is no doubt, based upon what is happening in markets around the world, that there is an urgent need for such a package. It has been well known that the American people have not looked kindly on what is happening in Washington, DC. The approval ratings of the President are low. The approval ratings of the Congress are low. It appears sometimes as if it is a race to the bottom as to who is going to be the lowest the fastest. But now I think we have an opportunity, in the face of an emergency-- what may accurately be described as a real crisis--to take some effective action. It is my hope we will move with dispatch, with all due deliberation. We have the finest economic minds at work on the issue. There have been a lot of studies, and with our background of knowledge we are in a position to move. There is no doubt the Congress can move promptly when the Congress has the will to do so with the President. Congress and the President have the capacity to move promptly. It is only a question of the will. I think this is an opportunity for the Federal Government to redeem itself in the eyes of the American people by acting. I am pleased to see that Federal Reserve Chairman Bernanke has acted this morning to drop interest rates by three-quarters of a percentage point to 3.5 percent. The Chairman of the Fed does not quite go so far as to say we are in a recession, but he has pretty dire news saying: The committee took this action in view of a weakening of the economic outlook and increasing downside risks to growth. While strains in short-term funding markets have eased somewhat, broader financial market conditions have continued to deteriorate and credit has tightened further for some businesses and households. I think it is really an understatement. I think the credit market is a shambles, that if you look at the indicators in terms of borrowing on a variety of sources, credit is simply not there. Many had urged the Fed to lower the rate to 3 percent. Candidly, that would have been my choice. But I think three-quarters of a percent is decisive action, and that should be the starting point for an economic package from Congress. I appreciate the fact that the President has honored the wishes of the leaders of the Democrats in Congress to await specifics until there has been a meeting and a rejoinder of action. But I think the time has come now to be specific. The two legislative proposals which I am suggesting today deal with depreciation schedules. Currently, there are depreciation schedules on the 3-, 5-, and 7-year mark which my legislation would expense--or, that is, depreciate--in the year when the expenditure is made. Calculating the cost of this legislation over a 10-year period, the Joint Committee on Taxation should find that it will not cost a great deal on the books. The second bill which I am introducing would give a bonus depreciation of 50 percent on items purchased on all depreciation schedules. The bonus of 50 percent in 2008 or 50 percent in 2009, if the purchases are made in either of these 2 years, will be a considerable stimulus. These are not original ideas of mine; these ideas have been proposed from a variety of sources, including a commentary article from The Wall Street Journal dated January 12, 2008. The ideas were forwarded last week to the Secretary of Treasury, Secretary Paulson, and the Chairman of the Council of Economic Advisers, Edward Lazear. It is my hope we will move promptly with an economic stimulus package. It is my hope that while there may be divergent views and many different points of view, that the efforts are being focused to the maximum extent possible on progrowth ideas. There is no doubt we have a very serious problem with credit today. What the Federal Reserve has done in lowering the rate three-quarters of a percent to 3.5 percent is a significant start, but more needs to be done on seeing to it that credit is available in our economy. Mr. President, I have sought recognition to introduce two pieces of legislation designed to provide immediate economic stimulus for an economy hindered by a housing crisis, rising oil prices, unemployment, sagging stock markets, and battered consumer confidence. Both bills I am introducing today, S. 2539 and S. 2540, provide incentives for firms to place new equipment and other assets into use, thus creating new job opportunities. Specifically, my proposals allow firms to deduct, or expense, a greater share of new equipment in the year placed in service. The need for aggressive action is becoming more apparent with each passing day. There is increasing sentiment that timely action is needed by Congress to stimulate growth beyond what the Federal Reserve can achieve through lower interest rates. Many experts, including former Federal Reserve chairman Alan Greenspan and former Treasury Secretary Lawrence H. Summers, have indicated that the U.S. economy is not faring well and that a recession may be in our future. Meanwhile, Federal Reserve Chairman Ben Bernanke has been hesitant to classify the deteriorating economy as being in recession. However, in response to an international stock sell-off and the likelihood of a sharp drop in America, the Federal Reserve cut its benchmark short-term interest rate by \3/4\ of a percentage point to 3.5 percent this morning, Tuesday January 22, 2007. In a statement, the Federal Reserve said: ``The committee took this action in view of a weakening of the economic outlook and increasing downside risks to growth. While strains in short-term funding markets have eased somewhat, broader financial market conditions have continued to deteriorate and credit has tightened further for some businesses and households.'' Our current economic difficulties were accentuated with the subprime mortgage crisis. With interest rates at all-time lows, lenders increasingly offered mortgages to those who previously either would not have qualified for a mortgage or could not have afforded the payments on a mortgage. Many borrowers with adjustable rate, interest-only or no-down-payment mortgages have been unable to keep up with their monthly mortgage payments that have reset to higher rates. The implications of the subprime mortgage crisis have now spread beyond the housing sector. A mere 18,000 jobs were added in December, falling significantly short from the 70,000 that were projected by industry analysts. According to the Labor Department's monthly report, the unemployment rate also jumped to 5 percent, up from November's 4.7 percent. Our economy has not seen that level of unemployment in 2 years. On January 2, 2007, crude oil prices hit the $100 per barrel milestone for the first time. The high cost of energy continues to drive up the cost of doing business. This also means a higher cost of living for American consumers. The Consumer Price Index increased 0.8 percent in November, its largest advance since September 2005. A weak holiday shopping season also suggests that consumer confidence is low. According to the International Council of Shopping Centers, sales growth for retailers was the lowest in 7 years. On Friday, January 18, 2008, the President made clear that timely action is needed during a televised address with his economic advisors. The President outlined a broad framework for an economic stimulus package, one that: is big enough to make a difference; is built on broad-based tax relief; is temporary and takes effect right away; and does not include any tax increases. Specifically, the President called for Congress to enact temporary tax relief consisting of rebate checks for individuals and investment incentives for businesses. He has tasked Treasury Secretary Henry Paulson and Ed Lazear, Chairman of the Council on Economic Advisors, to work with Congress on agreeing on details of a package. Many in Congress are floating ideas for a package to kick-start the economy, including boosting spending for extending unemployment benefits and providing States with fiscal relief. No matter what the final product, it is my belief that any package passed into law should include tax incentives to spur immediate business investment. The two bills I introduce today are designed to help firms acquire new capital and expand their operations. Incentives for investment will lead to job creation and help dampen the threat of a recession. In the long-term, investment incentives will lead to increased growth. On January 16, 2008, I wrote to Edward Lazear, Chairman of the President's Council of Economic Advisors, urging him to consider these proposals as cornerstones of any economic stimulus package. I sent a similar letter to Treasury Secretary Hank Paulson on January 18, 2008. My first piece of legislation provides 2 years of ``bonus depreciation'' for all sectors of the economy. Specifically, firms would be allowed to expense 50 percent of the cost of new equipment in the first year the asset is put to use. Remaining value would be deducted over the course of its useful life by using the Internal Revenue Code depreciation schedules. By allowing firms to expense a greater share of the value of an asset in the first year, this proposal frees up additional resources for firms to hire more workers and expand their operations. In the long-run, the cost of this proposal is minimal because it simply accelerates a tax benefit that is due over time. This proposal does not create a new deduction. However, because this proposal will affect assets depreciated on schedules longer than 10 years, this bill will have a static revenue cost over a 10-year scoring period. The second piece of legislation I offer today will allow a variety of sectors to take advantage of one-hundred percent up-front expensing for new assets that are placed into service during tax years 2008 and 2009. Specifically, this legislation would allow all equipment which is currently depreciated on the 3-, 5-, and 7-year schedules to be fully expensed in year one. Under current law, when a company buys an asset that will last longer than 1 year, the company cannot, under most circumstances, deduct the entire cost and enjoy an immediate tax benefit. Instead, the company must depreciate the cost over the useful life of the asset, taking a tax deduction for a part of the cost each year. While the company will get to deduct the full cost of the asset, delaying this benefit is a disadvantage to the company. By allowing firms to deduct the cost of a new asset in year one, expensing spurs new investments quickly, which helps to drive immediate job creation. The assets that currently depreciate on these schedules are so varied that virtually every sector of the economy would be able to take advantage of this benefit and expand their businesses. Some of the assets and sectors on these schedules include office equipment, transportation equipment, agriculture, textiles, furniture manufacturing, steel products and high-tech manufacturing. I have included at the conclusion of this statement a full list of the asset classes impacted by this bill. One particular advantage to this legislation is the minimal cost impact as viewed by the Joint Committee on Taxation, the Congressional unit which investigates the operation and effects of internal revenue taxes and the administration of such taxes. Because revenue legislation is scored over a 10-year window and the tax benefit inferred by this bill still occurs within that span, quicker, it is my belief that the revenue impact will be negligible. This point is of particular importance in the 110th Congress because of PAYGO scoring rules that require offsetting revenue raising provisions to be included in order to ``pay for'' tax relief. A January 12, 2008, op-ed in the Wall Street Journal entitled ``The JFK Stimulus Plan,'' by Ernest S. Christian and Gary A. Robbins, provides an excellent argument for the approach I have identified with these two bills. According to Mr. Christian and Mr. Robbins, ``More investment means more productivity--and 80 percent of the net benefit from increased productivity goes to labor. Expensing is a no-risk tax cut. It worked four times in the 1960s and 1970s. It worked in 1981- 1982 and again in 2002-2004.'' They cite a 2001 analysis conducted by the Institute for Policy Innovation: ``Each $1 of tax cut from first- year expensing produces about $9 of additional GDP growth.'' A copy of the op-ed is included for the Record. To address a short-run need for economic stimulus, I urge my colleagues to support this legislation as Congress begins making important decisions on how best to address our slumping economy. These bills are supported by the U.S. Chamber of Commerce, the National Association of Manufacturers, Americans for Tax Reform, and the National Restaurant Association. In the long run, it is my belief that Congress should consider taking steps to both enhance and make expensing tax benefits permanent. There are strong arguments for allowing all businesses to deduct these costs fully in the year paid instead of requiring them to collect a benefit over a long amount of time. In addition to the issue of providing tax incentives for businesses to invest in new growth capital, I believe it will also be important in the long-run to provide sustained relief for American taxpayers. The President has acknowledged that while passing a new growth package is our most pressing economic priority, Congress needs to turn next to making sure that tax relief that is now in place is not taken away. I look forward to working with my colleagues to rapidly enact a bipartisan fiscal stimulus package to help our sluggish economy. Mr. President I ask unanimous consent that the text of the bills of supporting material be printed in the Record.

Mr. SPECTER

Mr. SPECTER. I have sought recognition to introduce two bills with a view to aiding an emergency economic stimulus package. I am pleased to see that the President and the Democratic leaders of the House of Representatives and the Senate have stated their intentions to work together to provide an economic stimulus package. There is no doubt, based upon what is happening in markets around the world, that there is an urgent need for such a package. It has been well known that the American people have not looked kindly on what is happening in Washington, DC. The approval ratings of the President are low. The approval ratings of the Congress are low. It appears sometimes as if it is a race to the bottom as to who is going to be the lowest the fastest. But now I think we have an opportunity, in the face of an emergency-- what may accurately be described as a real crisis--to take some effective action. It is my hope we will move with dispatch, with all due deliberation. We have the finest economic minds at work on the issue. There have been a lot of studies, and with our background of knowledge we are in a position to move. There is no doubt the Congress can move promptly when the Congress has the will to do so with the President. Congress and the President have the capacity to move promptly. It is only a question of the will. I think this is an opportunity for the Federal Government to redeem itself in the eyes of the American people by acting. I am pleased to see that Federal Reserve Chairman Bernanke has acted this morning to drop interest rates by three-quarters of a percentage point to 3.5 percent. The Chairman of the Fed does not quite go so far as to say we are in a recession, but he has pretty dire news saying: The committee took this action in view of a weakening of the economic outlook and increasing downside risks to growth. While strains in short-term funding markets have eased somewhat, broader financial market conditions have continued to deteriorate and credit has tightened further for some businesses and households. I think it is really an understatement. I think the credit market is a shambles, that if you look at the indicators in terms of borrowing on a variety of sources, credit is simply not there. Many had urged the Fed to lower the rate to 3 percent. Candidly, that would have been my choice. But I think three-quarters of a percent is decisive action, and that should be the starting point for an economic package from Congress. I appreciate the fact that the President has honored the wishes of the leaders of the Democrats in Congress to await specifics until there has been a meeting and a rejoinder of action. But I think the time has come now to be specific. The two legislative proposals which I am suggesting today deal with depreciation schedules. Currently, there are depreciation schedules on the 3-, 5-, and 7-year mark which my legislation would expense--or, that is, depreciate--in the year when the expenditure is made. Calculating the cost of this legislation over a 10-year period, the Joint Committee on Taxation should find that it will not cost a great deal on the books. The second bill which I am introducing would give a bonus depreciation of 50 percent on items purchased on all depreciation schedules. The bonus of 50 percent in 2008 or 50 percent in 2009, if the purchases are made in either of these 2 years, will be a considerable stimulus. These are not original ideas of mine; these ideas have been proposed from a variety of sources, including a commentary article from The Wall Street Journal dated January 12, 2008. The ideas were forwarded last week to the Secretary of Treasury, Secretary Paulson, and the Chairman of the Council of Economic Advisers, Edward Lazear. It is my hope we will move promptly with an economic stimulus package. It is my hope that while there may be divergent views and many different points of view, that the efforts are being focused to the maximum extent possible on progrowth ideas. There is no doubt we have a very serious problem with credit today. What the Federal Reserve has done in lowering the rate three-quarters of a percent to 3.5 percent is a significant start, but more needs to be done on seeing to it that credit is available in our economy. Mr. President, I have sought recognition to introduce two pieces of legislation designed to provide immediate economic stimulus for an economy hindered by a housing crisis, rising oil prices, unemployment, sagging stock markets, and battered consumer confidence. Both bills I am introducing today, S. 2539 and S. 2540, provide incentives for firms to place new equipment and other assets into use, thus creating new job opportunities. Specifically, my proposals allow firms to deduct, or expense, a greater share of new equipment in the year placed in service. The need for aggressive action is becoming more apparent with each passing day. There is increasing sentiment that timely action is needed by Congress to stimulate growth beyond what the Federal Reserve can achieve through lower interest rates. Many experts, including former Federal Reserve chairman Alan Greenspan and former Treasury Secretary Lawrence H. Summers, have indicated that the U.S. economy is not faring well and that a recession may be in our future. Meanwhile, Federal Reserve Chairman Ben Bernanke has been hesitant to classify the deteriorating economy as being in recession. However, in response to an international stock sell-off and the likelihood of a sharp drop in America, the Federal Reserve cut its benchmark short-term interest rate by \3/4\ of a percentage point to 3.5 percent this morning, Tuesday January 22, 2007. In a statement, the Federal Reserve said: ``The committee took this action in view of a weakening of the economic outlook and increasing downside risks to growth. While strains in short-term funding markets have eased somewhat, broader financial market conditions have continued to deteriorate and credit has tightened further for some businesses and households.'' Our current economic difficulties were accentuated with the subprime mortgage crisis. With interest rates at all-time lows, lenders increasingly offered mortgages to those who previously either would not have qualified for a mortgage or could not have afforded the payments on a mortgage. Many borrowers with adjustable rate, interest-only or no-down-payment mortgages have been unable to keep up with their monthly mortgage payments that have reset to higher rates. The implications of the subprime mortgage crisis have now spread beyond the housing sector. A mere 18,000 jobs were added in December, falling significantly short from the 70,000 that were projected by industry analysts. According to the Labor Department's monthly report, the unemployment rate also jumped to 5 percent, up from November's 4.7 percent. Our economy has not seen that level of unemployment in 2 years. On January 2, 2007, crude oil prices hit the $100 per barrel milestone for the first time. The high cost of energy continues to drive up the cost of doing business. This also means a higher cost of living for American consumers. The Consumer Price Index increased 0.8 percent in November, its largest advance since September 2005. A weak holiday shopping season also suggests that consumer confidence is low. According to the International Council of Shopping Centers, sales growth for retailers was the lowest in 7 years. On Friday, January 18, 2008, the President made clear that timely action is needed during a televised address with his economic advisors. The President outlined a broad framework for an economic stimulus package, one that: is big enough to make a difference; is built on broad-based tax relief; is temporary and takes effect right away; and does not include any tax increases. Specifically, the President called for Congress to enact temporary tax relief consisting of rebate checks for individuals and investment incentives for businesses. He has tasked Treasury Secretary Henry Paulson and Ed Lazear, Chairman of the Council on Economic Advisors, to work with Congress on agreeing on details of a package. Many in Congress are floating ideas for a package to kick-start the economy, including boosting spending for extending unemployment benefits and providing States with fiscal relief. No matter what the final product, it is my belief that any package passed into law should include tax incentives to spur immediate business investment. The two bills I introduce today are designed to help firms acquire new capital and expand their operations. Incentives for investment will lead to job creation and help dampen the threat of a recession. In the long-term, investment incentives will lead to increased growth. On January 16, 2008, I wrote to Edward Lazear, Chairman of the President's Council of Economic Advisors, urging him to consider these proposals as cornerstones of any economic stimulus package. I sent a similar letter to Treasury Secretary Hank Paulson on January 18, 2008. My first piece of legislation provides 2 years of ``bonus depreciation'' for all sectors of the economy. Specifically, firms would be allowed to expense 50 percent of the cost of new equipment in the first year the asset is put to use. Remaining value would be deducted over the course of its useful life by using the Internal Revenue Code depreciation schedules. By allowing firms to expense a greater share of the value of an asset in the first year, this proposal frees up additional resources for firms to hire more workers and expand their operations. In the long-run, the cost of this proposal is minimal because it simply accelerates a tax benefit that is due over time. This proposal does not create a new deduction. However, because this proposal will affect assets depreciated on schedules longer than 10 years, this bill will have a static revenue cost over a 10-year scoring period. The second piece of legislation I offer today will allow a variety of sectors to take advantage of one-hundred percent up-front expensing for new assets that are placed into service during tax years 2008 and 2009. Specifically, this legislation would allow all equipment which is currently depreciated on the 3-, 5-, and 7-year schedules to be fully expensed in year one. Under current law, when a company buys an asset that will last longer than 1 year, the company cannot, under most circumstances, deduct the entire cost and enjoy an immediate tax benefit. Instead, the company must depreciate the cost over the useful life of the asset, taking a tax deduction for a part of the cost each year. While the company will get to deduct the full cost of the asset, delaying this benefit is a disadvantage to the company. By allowing firms to deduct the cost of a new asset in year one, expensing spurs new investments quickly, which helps to drive immediate job creation. The assets that currently depreciate on these schedules are so varied that virtually every sector of the economy would be able to take advantage of this benefit and expand their businesses. Some of the assets and sectors on these schedules include office equipment, transportation equipment, agriculture, textiles, furniture manufacturing, steel products and high-tech manufacturing. I have included at the conclusion of this statement a full list of the asset classes impacted by this bill. One particular advantage to this legislation is the minimal cost impact as viewed by the Joint Committee on Taxation, the Congressional unit which investigates the operation and effects of internal revenue taxes and the administration of such taxes. Because revenue legislation is scored over a 10-year window and the tax benefit inferred by this bill still occurs within that span, quicker, it is my belief that the revenue impact will be negligible. This point is of particular importance in the 110th Congress because of PAYGO scoring rules that require offsetting revenue raising provisions to be included in order to ``pay for'' tax relief. A January 12, 2008, op-ed in the Wall Street Journal entitled ``The JFK Stimulus Plan,'' by Ernest S. Christian and Gary A. Robbins, provides an excellent argument for the approach I have identified with these two bills. According to Mr. Christian and Mr. Robbins, ``More investment means more productivity--and 80 percent of the net benefit from increased productivity goes to labor. Expensing is a no-risk tax cut. It worked four times in the 1960s and 1970s. It worked in 1981- 1982 and again in 2002-2004.'' They cite a 2001 analysis conducted by the Institute for Policy Innovation: ``Each $1 of tax cut from first- year expensing produces about $9 of additional GDP growth.'' A copy of the op-ed is included for the Record. To address a short-run need for economic stimulus, I urge my colleagues to support this legislation as Congress begins making important decisions on how best to address our slumping economy. These bills are supported by the U.S. Chamber of Commerce, the National Association of Manufacturers, Americans for Tax Reform, and the National Restaurant Association. In the long run, it is my belief that Congress should consider taking steps to both enhance and make expensing tax benefits permanent. There are strong arguments for allowing all businesses to deduct these costs fully in the year paid instead of requiring them to collect a benefit over a long amount of time. In addition to the issue of providing tax incentives for businesses to invest in new growth capital, I believe it will also be important in the long-run to provide sustained relief for American taxpayers. The President has acknowledged that while passing a new growth package is our most pressing economic priority, Congress needs to turn next to making sure that tax relief that is now in place is not taken away. I look forward to working with my colleagues to rapidly enact a bipartisan fiscal stimulus package to help our sluggish economy. Mr. President I ask unanimous consent that the text of the bills of supporting material be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Madam President, I noticed the Senator from California and I rose virtually simultaneously. I yield to her.

Mr. SPECTER. Madam President, I join my colleagues in expressing my heartiest congratulations to my good friend, Senator Trent Lott, on his historic career of 35 years as a member of the U.S. Congress. I also express deep regrets that following the new year, we will no longer have Trent Lott as a member of this body. His announcement that he will be retiring was a shock to some of us here in the Senate. Trent has been the embodiment of what's good in this body for so long, that it will be difficult to think of the United States Senate without the Senator from Mississippi. I applaud Trent's outstanding service to the people of Mississippi, and the nation which he has successfully undertaken in both wings of the U.S. Capitol. Trent Lott was born on October 9, 1941, in Grenada, MS, the only child to a shipyard worker, Chester Lott, and a school teacher mother Iona. Trent attended a high school which in later years would bare his name, the Trent Lott Middle School. Lott went to the University of Mississippi where he achieved an undergraduate degree in public administration in 1965 and a law degree in 1967. During his time at college he met and married his wife Patricia Thompson in December 1964. Together the couple had a son and a daughter, Chester and Tyler. After graduating from law school, Trent began a law practice in Pascagoula, MS, but leaving after less than a year when he was offered a job working in Washington as an administrative assistant for Congressman William Colmer, a Mississippi Democrat. When Congressman Colmer announced his retirement from the House of Representatives, Trent Lott announced his candidacy as a Republican to seek the vacant office. Lott, even as a Republican, won Colmer's endorsement, vowing to fight the increasing power of Government that was developing in Washington. Lott went on to win the seat with 55 percent of the vote. The next 35 years would mark a series of extraordinary moments in history as Trent Lott begins his career as a Member of Congress. I have had the privilege of serving with Trent in the Senate for the past 19 years. I have watched him throughout his Senate career develop into a strong and effective leader, mastering the art of compromise, a feat which is hard to accomplish in these times. These qualities served Trent well as he climbed the ranks in House and Senate leadership: he served as House minority whip from 1981 to 1989; Senate majority whip for 5 months in 1995; and in June of 1996, he succeeded my good friend, Senator Bob Dole, to become the 16th majority leader of the Senate. Trent served a brief stint as minority leader after the 2000 elections produced a 50-50 split in the Senate, with Vice President Al Gore still being the tiebreaking vote. As the Bush administration came into office, with Vice President Dick Cheney now being the tiebreaker, control went back to the Republicans and Trent resumed his duties as majority leader. Later in 2001, Trent would once again become Minority Leader as Senator Jim Jeffords, a Republican from Vermont, became an Independent and caucused with the Democrats, allowing them to regain the majority. Presumably, Trent will leave the Senate while serving in his most recent leadership position; he was elected this Congress to serve as the Republican whip. Senator Trent Lott is the first person to have served as whip in both Houses of Congress. Drawing on his impressive experience as a legislator and a negotiator, majority Leader, Lott was instrumental in promptly moving legislation from Congress to the President's desk. Working harmoniously with the executive and legislative branches of Government, the country witnessed landmark bills being signed into law. Major policy initiatives, such as the Welfare Reform Act of 1996 and bringing balance to the Federal budget for the first time since 1968, were both accomplished under Trent's leadership. However, I was most impressed with the role Trent played in the impeachment proceedings for President Bill Clinton. Working with him during this difficult time in our country's history was an experience I will always remember. Aside from a distinguished career as majority leader, Senator Lott has been a champion for his own State of Mississippi. Recognizing that the top priorities in Mississippi are an expanded transportation system and innovative education, Trent time and time again proved to the people of his State his ability to deliver. He has secured Federal funding to improve Mississippi's transportation expansion and has more than doubled research funding for Mississippi's public universities. Recognizing Trent's leadership through public service, the University of Mississippi in Oxford, where he received both his undergraduate and law degrees, named its leadership institute after him. On a personal note, I believe all my colleagues can agree with me, that along with his remarkable accomplishments in Congress, what we will miss most about Trent is his affability, commonsense persona, and his enjoyable sense of humor. He brings a breath of fresh air to Washington, a town which desperately needs it at times. No one questioned Trent's motive when he revived a long-forgotten Senate tradition known as Seersucker Thursday, a tradition which this Senator has participated in, and will continue to participate in. Senator Trent Lott's service and leadership were invaluable to this institution. Truly a great Senator, he will be missed in this body. I wish him, his wife Patricia, and all his family the very best in the years to come. I am pleased to join in this tribute to Senator Lott. My only regret is that it is occurring perhaps 18 years too soon. I would characterize Trent's attributes, among many, as his talent, his character, and his flair. He has brought to this body enormous intellectual capability and great street smarts. Ordinarily, the two do not go together, but with Trent, they have been united to the great benefit of the body. We have watched Trent in his positions in the Senate before taking a leadership role after his election in 1988, being the majority leader, and the way he makes contacts on the Senate floor. We all move around, none with the speed and alacrity of Trent Lott. There is always an intensity to his conversations. He doesn't buttonhole people or he doesn't lean over as Lyndon Johnson was reputed to have done, but there is a real intensity. Usually at the end of the short conversation, the other person is nodding in the affirmative. At our Tuesday luncheons, the way he moves around from table to table, it was almost as if he were in Club 21. Here again, moving in and out with a great deal of speed and, again, the conversations and what I surmise at some distance to be success. He has been characterized as a deal maker, a term which is not always used in the highest sense, but with Trent Lott it is. The great problem with our body is there are not enough deal makers. Not enough Senators willing to come to an accommodation. It is an understanding of the varied points of view. On the rare occasions when I have disagreed with a majority vote--may the record show Trent is smiling--he has been understanding in his leadership position, never conceding, and frequently advocating, but always understanding. If there is one thing this body lacks, it is a sense of accommodation. That is evident by anybody who will take a photograph of the Chamber today and note how many people on the other side of the aisle have appeared here. I hope their numbers will be increased before this proceeding is concluded. The business about our political process being dominated by the extremes of both parties is very much to the detriment of the country. Those who are willing to cross the aisle, as the last speaker did on the Democratic side, the Senator from California, the country owes a great debt of gratitude to. And to those such as Senator Lott who have been able to forge compromises, it is in the greatest tradition of the Senate and the greatest tradition of the United States. Just a word or two about his character. I attended the 100th birthday party of Senator Thurmond on December 4, 2002. I have seen many comments blown vastly out of proportion during my tenure in the Senate and before, but never have I seen one blown as much out of proportion as that one was. And I said so at the time. My record on civil rights is one which no one yet has questioned. What Senator Lott said was in no means out of line. And then to continue in the Senate and really move as a Member without leadership credentials was to his enormous credit. Then to come back and to run for another leadership position and be successful was in the greatest tradition of the Phoenix rising from the ashes. I haven't seen any greater display of character in this body in the time I have been here. Then there is the matter of flair, which this body needs more of. Always a smile, always a pat on the back, always the joviality, and the great tradition of seersucker Thursday. It is always an interesting time when people come, not recognizing seersucker Thursday. One day, our leader, Bill Frist, went out and bought a suit--and I have a picture hanging proudly in my outer office--and Bill couldn't get the trousers adjusted, and the highlight of the picture is the unadjusted trousers of one of our Senate colleagues. Let me end on a note which I have debated whether I should comment about, but it is relevant because of the response Trent made to a short story I told recently at the celebrity comedy evening. I dusted off an old story from mayor Bill Daley at the 1968 convention and made Trent the object of the story. It went to the effect that when Trent came back to the Senate after the losses in Mississippi, he was devastated and very glum. I approached him on the Senate Floor one day and said: Trent, why are you so unhappy? What is wrong? I knew, in one sense, but he seemed especially morose. He said: Well, Arlen, not only was my entire property destroyed in Mississippi, but my entire library was destroyed--both books--and I wasn't finished coloring one of them, either. Well, that little bit of joviality at Trent's expense was met with his approaching me on the floor--and this part of the story is true and what makes it perhaps relevant to these comments--and with a scowl on his face, he said: Arlen, I thought you and I were friends. We have been in this body a long time together. Now I hear you are making me the butt of jokes at comedy hour, so I don't really understand. And besides your unfairness and your incivility, you are wrong--I have more than two coloring books. In a sense, that characterizes Trent Lott's magnanimity, and we are all going to miss him very much. He has made a great contribution. When Trent decided there was another course for him and his family, I had great respect for that decision as I have great respect for him.

Mr. SPECTER

Mr. SPECTER. Mr. President, I simply ask unanimous consent that the record of John Daniel Tinder be printed in the Congressional Record, and I urge my colleagues to support him for confirmation.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that a letter from Mr. Richard Morgan from Shavertown, PA, be printed in the Congressional Record.

Mr. SPECTER

Mr. SPECTER. I thank the Senator from Missouri for yielding me the time, and I wish to begin with the comment made by the Senator from Connecticut raising a question about the grant of retroactivity immunity. I believe that had that provision not been in the Senate bill, it would be a great deal easier to deal with, although there are some substantial problems with the bill as such, even in addition to the provision on retroactive immunity. But I support the motion to invoke cloture because I believe it is necessary to deal with the fight against terrorism, and I think the Government has made a case for some expanded powers, although I think we have to weigh them very carefully--to fight terrorism but still protect civil liberties in this country. I have a strong objection to the provision in the bill relating to retroactive immunity, and my objection goes to the point that the administration did not follow the provisions of law in notifying the Intelligence Committees of the House and Senate or the chairman and ranking member of the Judiciary Committees about this program. To come at a later date and seek retroactive immunity I think is inappropriate. I found out about it when I was chairman of the Judiciary Committee last year, and I moved to subpoena the records of the telephone company, and then I moved to go into a closed session. While that was in process, Vice President Cheney went to the members of the Judiciary Committee on the Republican side, without notifying me--which I thought was inappropriate--and thwarted the efforts I was making to find out what this program was all about. I ask unanimous consent to have my letter to Vice President Cheney dated June 7, and his reply to me dated June 8, printed in the Record.

Mr. SPECTER. The telephone companies, I do believe, have acted as good citizens. I would not want to see them pay damages because they were responding to a governmental request. So my idea, in order to strike a balance between the Senate bill which grants retroactive immunity and the House bill which leaves it out, would be instead to provide for the Government to be substituted as a party for telephone companies. Toward that end, I have introduced S. 2402, which was considered by the Judiciary Committee last week and did not pass, on a vote of 13 to 5. Since that time, I have heard from other Senators that they think it is a good idea. I believe it has to be explored and will be explored because I will offer it as an amendment to this bill as soon as I have an opportunity to do so. What my idea does, essentially, is to substitute the Federal Government as the party defendant for the telephone companies in the cases which have been initiated. The Government would stand in the shoes of the telephone companies, with no more and no less defenses available. For example, governmental immunity would not be available as a defense to the Government because obviously the telephone companies do not have governmental immunity. The telephone companies, I think, or the defendants in these cases are highly unlikely to pay damages. But I believe it is very important that the courts not be foreclosed from making a judicial determination on the issues which are involved. Part of the concern I have is that the Government is now coming forward to try to have retroactive immunity, to absolve them from any potential wrongdoing in the past. I do not know whether there is wrongdoing, but I do not believe that it is appropriate for the Federal Government to act secretly, surreptitiously, not tell the intelligence committees as required by law, not tell the chairman and ranking member of the Judiciary Committee, and then come back at a later date and say: Please exonerate us. If we give that kind of a blank check, carte blanche to the executive officials, it would be a terrible, devastating precedent for the future. I believe it is necessary for the judicial actions to run their course. Again, let me say I think it is highly questionable that any of the plaintiffs will succeed. The defense of state secrets has been interposed in the cases against the telephone companies. Similarly, the Government would have that defense if it were substituted in their stead. But the fact is that the Congress has not been successful in conducting oversight of the Federal Government. The terrorist surveillance program was in existence from October of 2001 until December of 2005, before the Congress ever found out about it. Then we didn't find out about it as a result of our oversight activities; we found out about it because it was disclosed in a New York Times story. I remember the morning well. I was managing the PATRIOT Act re- authorization, to try the give the U.S. Government adequate powers to fight terrorism. Right in the middle of the final day of our consideration, the story broke about the secret terrorist surveillance program, and the comment was made on the floor of the Senate by one Senator that he was prepared to vote for the PATRIOT Act but not after he found out about the terrorist surveillance program. The Federal Government did not notify the Intelligence Committees as required by law until well after the New York Times article. Then they notified the Intelligence Committees only because they felt compelled to do so in order to get General Hayden confirmed. There is a long list of efforts by congressional oversight which have been insufficient: the signing statements in which the President has cherry-picked, taking provisions he likes and excluding provisions he doesn't like. Senator McCain and the President personally negotiated the question of interrogation in the Detainee Treatment Act. There was language put in, on a 90-to-9 vote, limiting interrogation practices. Then, when the President signed the bill, he made an exclusion, saying that his constitutional authority under article II would enable him to ignore some of those provisions. Similarly, on the PATRIOT Act re-authorization, we negotiated certain oversight, and then the President issued a signing statement again saying there were some items which he would feel free to disregard on the oversight provisions. On habeas corpus and detention, the Congress has been totally ineffective at any oversight; it is only the Supreme Court of the United States in Rasul and in a case now pending, Boumediene, argued recently in the Supreme Court. So the judicial oversight on checks and balances and on separation of powers, I believe, is indispensable. We have within the past few days another instance of executive resistance to congressional oversight. Senator Leahy and I wrote to the Attorney General recently--a week ago today--inquiring about the destruction of the tapes by the CIA. The Attorney General responded last week, on December 14, denying our request for information. I ask unanimous consent to have the Attorney General's letter printed in the Record.

Mr. SPECTER. It surprised me that the Attorney General would say that in light of his very recent statements made during the confirmation hearings. ``If confirmed, I will review Department of Justice policies with a goal of ensuring that Congress is able to carry out meaningful oversight.'' When I talked to Judge Mukasey in advance of the confirmation hearings and gave him a copy of the letter which I had sent to Attorney General Gonzales, Judge Mukasey agreed with the standards established by the Congressional Research Service, saying that these are within the bounds of congressional authority on oversight. [A] review of congressional investigations that have implicated DOJ, or DOJ investigations over the past 70 years, from the Palmer Raids and Teapot Dome to Watergate, and through Iran Contra and Rocky Flats, demonstrates that the Department of Justice has consistently been obliged to submit to congressional oversight. . . . Including: . . . testimony of subordinate DOJ employees, such as line attorneys and FBI field agents, was taken. . . . Again: In all instances, investigating committees were provided with documents respecting open or closed cases. So here is another example of congressional oversight being thwarted, so that when you have a challenge to what has been done by the telephone companies here and you have litigation in progress, I believe it to be most inappropriate for the Congress to intercede and grant immunity retroactively. I believe our Federal investigative agencies need very substantial powers in the fight against terrorism. I have discussed the issue with Director of National Intelligence McConnell about granting the Government authority to acquire the cooperation of the telephone companies prospectively. I am waiting for a briefing on the issue, to understand the full import of what it is that the Director of National Intelligence wants. I am open to granting those powers prospectively, but I do not believe, in the context of what has happened here, that it would be advisable to retroactively give these officials a blank check when they kept these matters secret from the oversight committees, and when the Judiciary Committee sought to have subpoenas to find out about it, and we were thwarted in that effort, as disclosed by the exchange of letters between the Vice President and myself, made a part of the record. I note my time has expired. I thank the Chair and yield the floor.