Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, February 26 at 10:00 a.m. for purposes of conducting a business meeting to consider pending calendar business. 1. Agenda Item #5: S. 273--To direct the Secretary of the Interior to acquire specified State lands within the boundaries of Grand Teton National Park by donation, purchase, or exchange for specified Federal lands of equal value in Wyoming. 2. Agenda Item #6: S. 302--To direct the Secretary of the Interior to acquire specified lands from willing sellers for addition to Golden Gate National Recreation Area in the State of California. 3. Agenda Item #7: Nomination of Joseph Kelliher to be a Member of the Federal Energy Regulatory Commission. 4. Agenda Item #8: Views and Estimates of the Committee on Energy and Natural Resources with respect to those portions of the budget for fiscal year 2004 within the jurisdiction of this Committee. In addition, the Committee may turn to any other measures that are ready for consideration.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Wednesday, February 26, 2003, at 9:30 a.m., to conduct an oversight hearing on ``The Federal Deposit Insurance System.''

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, February 26, 2003, on SUV safety.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Wednesday, February 26, 2003, at 9:30 a.m., in closed session to receive a classified briefing on planning for post conflict Iraq.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet in open Executive Session during the session on Wednesday, February 26, 2003, at 10:00 a.m., to markup an original bill entitled, the Miscellaneous Trade and Technical Corrections Act of 2003.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, February 26, 2003, at 10:30 a.m., to hold a hearing on Post Conflict Afghanistan: A Perspective on Revitalization & Reconstruction. Guest: His Excellency Hamid Karzai, President, The Transitional Islamic Republic of Afghanistan, Kabul, Afghanistan.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Governmental Affairs be authorized to meet on Wednesday, February 26, 2003, at 10:00 a.m. for a hearing entitled ``Consolidating Intelligence Analysis: A Review of the President's Proposal to Create a Terrorist Threat Integration Center-Day 2.''

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, February 26, 2003, at 10:00 a.m., in Room 485 of the Russell Senate Office Building to conduct a business meeting on pending Committee business, to be followed immediately by a hearing on the President's FY 2004 Budget for Indian Programs.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Wednesday, February 26, 2003, for a hearing on the Administration's proposed Fiscal Year 2004 Department of Veterans Affairs budget. The hearing will take place in room 418 of the Russell Senate Office Building at 4 p.m.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Rules and Administration by authorized to meet during the session of the Senate on Wednesday, February 26, 2003, at 9:15 a.m., to mark up an original resolution authorizing expenditures by committees of the Senate for the period March 1, 2003, through February 28, 2005.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet on Wednesday, February 26, 2003 at 9:30 am to conduct a hearing to receive testimony from Christine Todd Whitman, Administrator of the EPA, on the proposed FY 2004 EPA budget. The meeting will be held in SD 406.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to meet during the session of the Senate in Room 628 of the Dirksen Senate Office Building, Wednesday, February 26, 2003, at 2:30 p.m. until 5 p.m. to conduct a hearing.

Mr. SPECTER

Mr. SPECTER. I thank my colleague from New York for the generous comments.

Mr. SPECTER. The oversight is going to continue on this matter. We are dealing with a constitutional responsibility of the Congress, that is the Senate and the Judiciary Committee, to conduct oversight on the Department of Justice and on the Federal Bureau of Investigation. This inquiry has demonstrated to this Senator that such oversight is sorely needed. When I was District Attorney of Philadelphia and an assistant district attorney before that time, I had occasion to deal with a great many applications for search warrants. To find now that the key FBI personnel entrusted with the responsibility to apply for warrants under the Foreign Intelligence Surveillance Act, to get information on agents of foreign powers, at a time when the United States is threatened by terrorism, and they do not know what the right standard is, is just scandalous. It has already been detailed on the public record that had they followed the right standard, and had the FBI gotten the computer of Zacarias Moussaoui, that 9/11 might have been prevented. Then when the Judiciary Committee pursues the issue more than a month later at a subsequent hearing, and finds that the key FBI personnel, including their attorneys, do not know the right standard, it is just incredible. Then when the FBI Director does not respond to inquiries as to what the standards are, and days, weeks, and months follow, I wonder what has happened with many matters where terrorists may be plotting other attacks and our law enforcement officials are not doing the job. This does raise the very fundamental question of whether the FBI is capable of handling counterterrorism in the United States, and what standards are being applied. Senator Leahy, Senator Grassley, and I have introduced further legislation requiring more reporting. There is a very important issue about civil liberties, but it all turns on appropriate application of the law, and that certainly has not been followed. I will be sending a copy of this statement to FBI Director Mueller tomorrow when it is in print, and these issues will be raised at the hearing which is scheduled for next Tuesday. We have a hearing scheduled which will include Attorney General Ashcroft, FBI Director Robert Mueller, CIA Director George Tenet, and Secretary of Homeland Defense Tom Ridge. I am urging Chairman Hatch to break it up and to have only one of those individuals appear. If we have all four of them at one time, we will only be hearing opening statements from the Senators and opening statements from the individuals, and along about 1:15, when nobody has gone to lunch, is when we will really get to serious questioning, and the hearing will not exactly be fruitful. So we really need to take these very important individuals one at a time. So stay tuned on some questions for FBI Director Mueller. I ask unanimous consent to print the letter in the Record.

Mr. SPECTER. I ask unanimous consent that the response of the Department of Justice dated February 20, 2003 be printed in the Record.

Mr. SPECTER. I thank the Senator.

Mr. SPECTER. Mr. President, the FBI then put out a memorandum dated September 16. That was in response to my questioning the Department of Justice representative at the Judiciary Committee hearings on September 10. Again, Mr. President, I ask unanimous consent that this memorandum be printed in the Congressional Record following my statement.

Mr. SPECTER. Mr. President, I will not read the memo or analyze it in detail, but I invite readers of the Congressional Record to do so. This is a virtually unintelligible memorandum, if agents are supposed to read this and know what to do about applications for warrants under the Foreign Intelligence Surveillance Act. In paragraph 3, it talks about ``which deal with probabilities.'' It makes a reference to ``it requires more than unfounded suspicion,'' but it is not probabilities that involve the standards, it is suspicion. Obviously, not unfounded suspicion, but suspicion based on a totality of the circumstances. At that stage, I again wrote to Director Mueller noting the questions which I had propounded to him and Special Agent Coleen Rowley on June 6 and the July 10 letter which I wrote to him which had still not been answered. This undated letter from John E. Collingwood provides no answer at all. I will not read it in detail, but it will be in the Record. The closest the letter from John E. Collingwood, the Assistant Director for the Office of Public and Congressional Affairs, comes is: This guidance will also address the concerns raised in your letter in your meeting with FBI personnel on July 9, 2002. We anticipate approval of the guidance shortly and will immediately disseminate it to field offices for implementation. That is as close as they come to an answer which, obviously, on its face is no answer at all. So I again wrote Director Mueller on September 24, 2002. I referenced the July 10 letter, and I referenced the fact that on September 12, my office received an undated letter from Assistant Director Collingwood which was totally unresponsive. I referenced the September 16 FBI memo, and concluded by saying I would like an explanation from him as to why it took the FBI so long to disseminate information on the standard for probable cause under Illinois v. Gates for a Foreign Intelligence Surveillance Act warrant. As yet, I have not received an answer from FBI Director Mueller to that important question as to why it took so long. Then I supplemented that letter on October 1, inquiring what were the specifics on the standard of probable cause used by the FBI for warrants under the Foreign Intelligence Surveillance Act from June 6, the date of our Judiciary Committee hearing, until September 16, when the memorandum went out. As yet, I have not gotten an answer to that letter. I ask unanimous consent that both of those letters be printed at the conclusion of my remarks. In the sequence of events, we next sent over to the FBI the report which we issued yesterday to give them an opportunity to review it and an opportunity to make comments. Finally, last Friday, February 21, 2003, we received another letter dated February 20 from the Department of Justice which referenced the outstanding questions--not sent to me, the person who had raised the questions, but sent to Senator Hatch, with a copy to me--and ending with the statement of what standard had been applied. The letter is signed by Acting Assistant Attorney General Jamie E. Brown: The standard they employed was consistent with ``Illinois v. Gates'' both before and after they received the memorandum. That is patently false. The standard which had been employed before the memorandum was more probable than not, 51 percent, as testified by Special Agent Coleen Rowley, and it is undetermined as to what standard was used thereafter. The issues under the Foreign Intelligence Surveillance Act have been raised in other oversight hearings relating to Wen Ho Lee, when the Department of Justice, on a matter handled by Attorney General Janet Reno personally, declined to request a warrant under the Foreign Intelligence Surveillance Act where there was ample probable cause, a matter which was reviewed in depth by the subcommittee which I chaired on Department of Justice oversight. The Attorney General designated Assistant U.S. Attorney Randy Bellows to review the Wen Ho Lee case. Mister Bellows filed an extensive report on May 12, 2000, saying that Attorney General Reno was wrong and the subcommittee of the Judiciary Committee was correct that a warrant should have been issued. Just in the last few weeks, an indictment has been returned, charging Mr. Sami Al-Arian for gathering funds for terrorist organizations since the early 1990s, an indictment based on extensive evidence collected pursuant to the Foreign Intelligence Surveillance Act, raising a real question as to the interpretation by the FBI and the Department of Justice of the Foreign Intelligence Surveillance Act, going back to Wen Ho Lee, going back to the 1990s, and surviving up until very recently, when they failed to utilize the provisions of the Foreign Intelligence Surveillance Act for criminal prosecutions. Prior to the enactment of the PATRIOT Act in the fall of 2001, the standard for Foreign Intelligence Surveillance Act surveillance had been interpreted by the courts to be that the primary purpose for the surveillance had to be for intelligence gathering, but saying ``primary purpose'' left latitude for some law enforcement purpose. Then the PATRIOT Act amended the Foreign Intelligence Surveillance Act standards to say ``significant purpose,'' broadening to some extent the issue of using Foreign Intelligence Surveillance Act warrants for law enforcement purposes. So in that substance, there is a persistent question as to the activities of the Department of Justice in implementing the Foreign Intelligence Surveillance Act, passed in 1978, at a time when gathering information and evidence against terrorists is of the utmost importance for the security of the American people. In our oversight hearing which we conducted last July 9, and in subsequent hearings and correspondence, we asked the Department of Justice for an opinion written by the Foreign Intelligence Surveillance Court, which the Department of Justice declined to give us. We finally had to get it from the court itself. In that matter, the Foreign Intelligence Surveillance Court criticized the Department of Justice and the FBI for some 75 cases where, as the court put it, the applications for search warrants had contained substantial inaccuracies. Then there was an appeal taken, the first such appeal, where the Court of Appeals for the Foreign Intelligence Surveillance Act found that there was broader discretion for law enforcement, which was very important in the war against terrorism. All of this is very complicated, and I have gone to some length to put this into the Record. I ask unanimous consent, on behalf of Senator Leahy, Senator Grassley, and myself, that the full text of the report issued yesterday be printed in the Record. As I noted earlier, the report can also be found on my office's website at specter.senate.gov.

Mr. SPECTER. I will not say regular order, but there is no basis for the inquiry, but I will respond. I expect to be about 15 minutes more.

Mr. SPECTER. Mr. President, I have sought recognition to support the confirmation of Miguel Estrada to be a judge for the Court of Appeals for the District of Columbia Circuit. We are seeing a Democratic filibuster, which essentially constitutes a revolution on the advice and consent process. It is unprecedented. What we are seeing is the culmination of 41 opposition Senators holding the judicial confirmation process hostage. The advice and consent function has traditionally been structured where the President makes the nomination and, unless there is some reason to oppose, some objection, some basis for opposition, the confirmation follows. In this situation there is no reason not to confirm Mr. Estrada. He has an extraordinary academic background. Phi Beta Kappa, magna cum laude from Columbia; magna cum laude from Harvard Law School. He was on the Harvard Law Review. He argued 15 cases before the Supreme Court of the United States. He is the member of a distinguished law practice. He has had service as an Assistant Solicitor General. This is a great American success story of a man coming from a very humble background and achieving real success, with real credentials for the court of appeals. The opponents to Mr. Estrada have contended that he has not answered questions to their satisfaction in the Judiciary Committee hearing. I suggest that a fair reading of the record shows the contrary. Nominees are not supposed to give their opinions or judgments on hypothetical cases or in matters which may come before the court. The judicial process works so that cases in controversy depend upon the specific facts. Then briefs are submitted to the court. Then there is oral argument before the court. Then the judges deliberate, talk among themselves, reflect on the case, ultimately come to a judgment, write an opinion, and express themselves as to their conclusions. That is a very different matter from someone being asked: What is your judgment on issue A? What is your judgment on issue B? How would you find on issue C? The judicial process does not function that way. Traditionally, nominees have been accorded an understanding that they do not have to answer such questions. It is commonplace for questions to be asked. And I refer now to the confirmation hearings of Merrick Garland, where I asked now-Judge Garland: Do you favor, as a personal matter, capital punishment? Mr. Garland: That is really a matter of settled law now. The Court has held that capital punishment is constitutional, and lower courts are required to follow that rule. There was an extended discussion which followed, but the upshot of the matter was that Mr. Garland--now Judge Garland--did not give his views. And I accepted that. He said that it was a matter of established law, and as a lower court judge he would be obliged to follow the law. There was a very controversial nominee, now Judge Marsha Berzon. She was asked about her view on Roe v. Wade and her thoughts about the abortion issue. And Marsha Berzon responded: I'm bound by Casey in that regard. That is referring to the case of Casey v. Planned Parenthood. And Marsha Berzon was a nominee by President Clinton, as was Judge Garland a nominee by President Clinton. When the shoe was on the other foot, these nominees did not give answers to these questions, but responded in the traditional way. And they were confirmed. Judge Rogers was questioned by Senator Cohen and asked about constitutional interpretation, where Senator Bill Cohen said: This is an evolutionary interpretation of what was originally defined at least in the Constitution. Would you agree with that general statement? Judge Rogers responded, ``My job as an appellate judge is to apply precedent.'' And so it goes with the tradition being established that nominees do not answer specific questions. Mr. Estrada has agreed to make himself available to talk to any Senator who wishes to talk to him and to respond to inquiries and to have a discussion as to his judicial qualifications and answer questions consistent with appropriate practice. I think that is sufficient, certainly in the context where Mr. Estrada has already had his hearing by the Judiciary Committee and has been reported out. There has been an effort to obtain the legal papers of Miguel Estrada when he worked as an Assistant Solicitor General. I say with all due respect that that kind of contention is a red herring. Seven former Solicitors General wrote to the then chairman of the Judiciary Committee, Senator Leahy, outlining this issue in a succinct way. Reading the letter would express it as briefly as it can be expressed. Solicitors General Seth Waxman, a Democrat, Walter Dellinger, a Democrat, Drew Days, a Democrat, Kenneth Starr, a Republican, Charles Fried, a Republican, Robert H. Bork, a Republican, Archibald Cox, a Democrat--a four to three balance for Democrats--wrote as follows: We write to express our concern about your recent request that the Department of Justice turn over ``appeal recommendations, certiorari recommendations and amicus recommendations'' that Miguel Estrada worked on while in the Office of Solicitor General. As former heads of the Office of Solicitor General, we can attest to the vital importance of candor and confidentiality in the Solicitor General's decision-making process. The Solicitor General is charged with weighing responsibility, of deciding whether to appeal adverse decisions in cases where the United States is a party, whether to seek Supreme Court review of adverse appellate decisions, and whether to participate as amicus curiae and other high-profile cases that implicate an important Federal interest. The Solicitor General has the responsibility of representing the interests not just of the Justice Department nor just of the executive branch but of the entire Federal Government, including Congress. It goes without saying that when we make these and other critical decisions we rely on frank, honest, and thorough advice from our staff attorneys, such as Mr. Estrada. Our decision-making process requires the unbridled, open exchange of ideas, and exchange simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all but vulnerable to public disclosures. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosures. High-level decision-making requires candor, and candor in turn requires confidentiality. Any attempt to intrude into the office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the U.S. litigation interests, a cost that would also be borne by Congress itself. Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the Federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process. It is signed by four former Democratic Solicitors General for Democratic Presidents who were Democrats, and three former Solicitors General who served in that capacity for Republican Presidents. What is really happening here is that the advise and consent function is being turned into an advise and dissent function. Beyond the qualifications of Mr. Estrada to be on the Court of Appeals for the District of Columbia Circuit, this is obviously a preliminary battle for the next nominee to the Supreme Court of the United States. I emphasize the issue of the unprecedented nature of this challenge and this procedure where 41 Senators can hold the confirmation process hostage. In order to cut off debate--to get what we call cloture--60 votes are required. So as long as 41 Senators of the opposition party vote against cloture, the nomination process cannot go forward and there cannot be an up-or-down vote on a nominee. It has been said many times that if the opponents of Mr. Estrada seek to vote him down, let them do so. But it is plain that there are more than 51 Senators who are ready to vote to confirm Miguel Estrada. It is reported that some 55 Senators are prepared to vote for cloture. If this process goes on long enough, I think it is true that 60 votes would be obtained, cloture would be invoked, debate would be cut off, and there would be a vote on Miguel Estrada and he would be confirmed. But this lengthy process comes at the expense of very important other business of the Senate. The minority leader appeared in the Chamber earlier this week and asked to proceed to a discussion of the economy, which is a very important subject. That was obviously a tactic to make a point of trying to get off of Estrada and going to something else. But we should conclude Estrada not by way of removing the nomination from the floor but by way of voting on Miguel Estrada and then moving on to other very important items. There are very important issues which this Senate has to consider--an economic stimulus package, the prospects of a war in Iraq, and the issue of terrorism, which I am going to speak about in a few minutes. But right now, there is a stranglehold on the Senate with both sides having dug in. I will concede that when President Clinton was in the White House and we Republicans controlled the Senate that we did not give due deference to Presidential nominees. The record is also plain that I was willing to and did support Democratic nominees who were qualified. Other Republicans did as well. When we had a majority in the Judiciary Committee, we voted out nominees who were Democrats. It is my hope that one day we will find a resolution to this issue by establishing a protocol where the practice is established that so many days after a nomination is submitted there is a hearing in the Judiciary Committee; some days later, there is a vote by the committee; so many days after that, there is a floor debate and a vote by the Senate could be extended. On the most controversial nomination we have had during my tenure, the nomination of Justice Clarence Thomas, which was decided on the 52- to-48 vote with a lot of acrimonious debate remembered well in this Chamber although it was back in October of 1991, the opposition party did not resort to a filibuster. In 1991, the Senate was controlled by the Democrats. They had a majority of the Senators. Justice Thomas was confirmed 52 to 48 in a very hotly contested, very partisan, very controversial nomination. Now to move to Miguel Estrada to be on the lower court, the District of Columbia Circuit Court, and with a matter of his qualifications, is sending the confirmation process into turmoil from which it may never recover, or if it does recover it is going to be a very long time. The fallout on this issue goes beyond the nomination process but to the essence of collegiality and the workings of the Senate, which is very much to the detriment of this body and very much to the detriment of the American people whom we are supposed to serve. It is my hope that we yet might be able to come to some accommodation--not on Miguel Estrada but on the broader issues where we can have a protocol and establish a procedure that is not partisan, not political. We ought to take the judicial nominating process out of politics so that when you have a Republican President and a Senate controlled by the Democrats, or a President who is a Democrat with a Senate controlled by the Republicans, we do not get into a logjam. And now we have a President who is a Republican and a Senate controlled by the Republicans, but as long as there are 41 who will stand up and oppose and filibuster, then the entire process breaks down. Terrorism Mr. President, I intend to talk on another subject. I have gotten the acquiescence of the chairman of the committee, Senator Hatch. This is not about the Estrada nomination that we are generally talking about, although Senators have talked about other subjects. The subject I am now going to discuss is a matter of great national importance. It relates to a report that was issued yesterday by Senator Leahy, Senator Grassley, and myself. It is in reference to the issue of terrorism. The Judiciary Committee is scheduled to have a hearing next Tuesday, and there are matters that require discussion so that we are in a position to get responses from the Director of the FBI and move ahead with the Judiciary Committee hearings scheduled, as I said, for next Tuesday. Yesterday, as a matter of senatorial oversight, Senator Leahy, Senator Grassley, and I released a 37-page report that deals with the issue of the FBI's activities under the Foreign Intelligence Surveillance Act (``FISA'') and the ability of the Federal Bureau of Investigation and the Department of Justice to handle counterterrorism. The report can be found on my office's internet website at specter.senate.gov. It is my view that there is a critical issue of the FBI's competence to handle terrorism, in light of the clear-cut failures of the FBI prior to 9/11, and the FBI's failure to answer important questions about what the FBI has done to correct the current failures. The report we released yesterday refers to the FBI's handling of the famous Phoenix memorandum, where there was a suspicious person who was taking flight training in the Phoenix area, and he had a big picture of Osama bin Laden on his wall. A detailed FBI report was submitted to Washington and was lost in the shuffle at FBI headquarters. At pages 31-32 of the report that we filed yesterday, there is a reference to the Phoenix memo. Had it been forwarded to the right personnel and understood at FBI headquarters, the Foreign Intelligence Surveillance Act request in the Moussaoui case from the Justice Department's Office of Intelligence Policy and Review would have been handled in a different manner. With that Phoenix report, coupled with the information from Zacarias Moussaoui's computer, and coupled with other information, 9/11 might well have been prevented. There was information in the hands of the Central Intelligence Agency about individuals in Kuala Lampur, Malaysia, who later turned out to be among the hijackers on 9/11--information that was not turned over to the Immigration and Naturalization Service. Had it been turned over, those individuals would have been kept out of the United States and would not have been hijackers on 9/11. There had been information as early as 1996 from a Pakistani named Abdul Hakim Murad, an al-Qaida member, who had plans to fly an airplane into the White House or CIA headquarters. Had the information on Zacarias Moussaoui been properly handled, it could have led to a FISA search authorization for Moussaoui's computer and the information contained on that computer, and might well have prevented 9/11. The Zacarias Moussaoui case received national prominence when a conscientious FBI agent named Coleen Rowley wrote a 13-page, single- spaced letter to the FBI Director, which the Judiciary Committee ultimately saw and was the subject of a very important Judiciary Committee hearing last June 6. FBI Agent Rowley was honored on the cover of Time Magazine as one of the persons of the year--three so- called whistleblowers, which is a categorization that doesn't sound too complimentary on its face, but it is very important when somebody knows what is going on within the Government that is wrong and has the courage to stand up and expose it and subject himself or herself to retaliation. But in the course of what Agent Rowley wrote to FBI Director Mueller, it was apparent the FBI was applying the wrong standard for a warrant under the Foreign Intelligence Surveillance Act. The letter from Agent Rowley pointed out that they were being held to a standard of preponderance of the evidence--meaning more likely or more probable than not--meaning 51 percent or more. In the course of that hearing, I raised with Director Mueller and with Agent Rowley the case of Illinois v. Gates, 462 U.S. 213, 1983, which appears at pages 23-24 of the report that Senators Leahy, Grassley, and I released yesterday, which defined probable cause as ``circumstances which warrant suspicion'' under the ``totality of the circumstances analysis.'' This case was decided in 1983 and it referred back to an opinion of Chief Justice Marshall in 1813. So this had been the law for a long time. But at the hearing, Agent Rowley testified that was not the standard that was used, and there is a real question which has yet to be answered as to whether FBI Director Mueller knew what the right standard was. In light of the fact that a warrant was not obtained under the Foreign Intelligence Surveillance Act, Moussaoui, a key participant in the 9/11 planning, developed into a burgeoning, very major case in the United States in the intervening months. We then proceeded to have a closed-door session, where we brought in attorneys and personnel from the FBI who were in charge of handling warrants under the Foreign Intelligence Surveillance Act. This appears at page 27. My questioning: What is the legal standard for probable cause for a warrant? FBI attorney: A reasonable belief that the facts you are trying to prove are accurate. Question by me: Reason to believe? Answer by the attorney: Reasonable belief. Question by me: Reasonable belief? Answer by the attorney: More probable than not. My question: More probable than not? Mr. President, that is not the standard. The standard is suspicion under the totality of the circumstances. Here is the key attorney who is supposed to pass on applications for warrants under the Foreign Intelligence Surveillance Act, and he doesn't know the standard. My question was: Are you familiar with Gates v. Illinois? Answer: No, sir. He doesn't know the baseline case for deciding what the standard is for probable cause, and he is the man who is supposed to approve warrants under the Foreign Intelligence Surveillance Act so that we can find out what men like Zacarias Moussaoui are doing and protect the American people. I was absolutely astounded at what I heard. I was astounded because the June 6 hearings, more than a month before we had this closed-door session on July 9, were widely publicized. They were on C-SPAN. Maybe nobody watches C-SPAN. Maybe nobody is watching C-SPAN now. Maybe nobody ever watches C-SPAN. But beyond being publicized on C-SPAN, there was extensive newspaper coverage about it. One would have expected that the agents who deal with the Foreign Intelligence Surveillance Act would be looking at a hearing which was squarely on their subject. Or one would also expect that the Director of the FBI, who was at the hearing, and found that key FBI personnel had applied the wrong standard in the Zacarias Moussaoui case--causing them not to apply for a search warrant--that the FBI Director would take specific steps to see to it that the people in charge of handling those warrant applications would have known what was going on. From June 6 to July 9 is 33 days. The world could turn in 33 days. People could be doing highly suspicious things, people could be planning terrorist attacks, and no action was taken by the Director of the FBI to see to it that the people who were charged with the responsibility of applying for these warrants did so. The very next day, I wrote to the Director of the FBI: Dear Bob, In a hearing before the Judiciary Committee on June 6 . . . I called your attention to the standard on probable cause in the opinion of then-Associate Justice Rehnquist in Illinois v. Gates. . . . I go through the business about suspicion and totality of the circumstances. My letter continues: In a closed door hearing yesterday, seven FBI personnel handling FISA warrant applications were questioned, including four attorneys. A fair summary of their testimony demonstrated that no one was familiar with Justice Rehnquist's definition from Gates and no one articulated an accurate standard for probable cause. I would have thought that the FBI personnel handling FISA applications would have noted this issue from the June 6th hearing; or, in the alternative, that you or other supervisory personnel would have called it to their attention. It is obvious that these applications, which are frequently made, are of the utmost importance to our national security and your personnel should not be applying such a high standard that precludes submission of FISA applications to the Foreign Intelligence Surveillance Court. I believe the Judiciary Committee will have more to say on this subject but I wanted to call this to your attention immediately so that you could personally take appropriate corrective action. Days followed, weeks followed, and no response from Director Mueller. Then on September 10, I again raised these issues with a representative of the Department of Justice who appeared before the Judiciary Committee. On September 12, I received an undated letter signed by the Assistant Director for the Office of Public and Congressional Affairs. It is very unusual to get undated letters. The representation has been made that the letter was sent on July 25, but it was received in my office on September 12. Mr. President, I ask unanimous consent that my letter to Director Mueller dated July 10 and the undated response from John E. Collingwood be printed in the Congressional Record at the conclusion of my remarks.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment about the current procedures with respect to the selection of judges, and what is happening in the Senate today is a constitutional revolution. The Constitution provides that the Senate will give advice and consent to the President. And the tradition of this country for 215 years has been that the President makes selections as he chooses, and advice can come from the Senate. Consent has been given without challenging the President to a partnership arrangement where the Senate has to consent to the nominee before the President can submit the nominee to the Senate with any chance for confirmation. What the Democrats are doing here today is really seeking a constitutional revolution. What they want as the minority party in the Senate is a full partnership with the President on selecting Federal judges. What we are doing with Miguel Estrada, and other nominees who are coming up for an executive session tomorrow, is really a prelude to the nomination of the next Justice for the Supreme Court. The effort is being made by the Democrats to have their acceptable ideology without the traditional deference which has been paid to the President. The Senate has been maneuvered into a position here, an institution with lines being drawn in the sand, and Republicans on one side and Democrats on the other being backed into a corner--sort of a macho- macho game where no one wants to play the chicken game. What we are really seeing is gridlocking this institution on a permanent basis, if no one yields. The Judiciary Committee has three nominees on the Executive Calendar tomorrow, and the Democrats have served notice that they are going filibuster. If at least one Democrat does not vote to end the filibuster, nothing will happen there. So we have a long litany of judges--some of whom have been held up for 2 years--and nothing is going to happen. What we may be seeing here is the foundation laid for a grand political argument in the Presidential election of 2004. We are laying it right on the line. If the American people want judges confirmed, there are going to have to be 60 votes in the President's party. Both sides have been at fault in the past, in my opinion. When President Clinton was in the White House and the Republicans controlled the Senate, we wouldn't confirm people. There were some breakthroughs but relatively few. When President Bush submitted nominees for 2 years, or a year and 7 months, the Democrats stopped the nomination process. It is high time we had a protocol which both sides respected wherein so many days after a nomination, there is a hearing, so many days later, a vote in committee, and so many days later, a vote on the full floor. But we are really heading for extraordinary deadly deadlock in this body. I think we ought to recognize it for what it is. There is a constitutional revolution underway here to change the fundamental way judges are selected. If the Democrats insist on a full partnership with the President, if any party insists on a full partnership with the President of the opposite party, then it is going to take 60 votes. And we may be setting the stage for 60 votes in the 2004 election. But it is my hope that cooler heads can prevail and we can sit down and work this out so that when the shoe is on the other foot, we don't have this kind of gridlock and this effort to really upset longstanding constitutional principles. I thank the Chair. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Committee on Veterans' Affairs has adopted rules governing its procedures for the 108th Congress. Pursuant to Rules XXVI, paragraph 2, of the Standing Rules of the Senate, on behalf of myself and Senator Graham, I ask unanimous consent that a copy of the committee rules be printed in the Record.

Mr. SPECTER

Mr. SPECTER. It is absolutely chilling to the operation of the Solicitor General's office or the operation of any governmental office with lawyers working to say their work product, their views, will be subject to review and scrutiny if they are later nominated to some judicial position. I think it boils down to--I will not call the request for the opinions of the Solicitor General's office a red herring; that could be a little too harsh--it certainly is a subterfuge. It is not what they are really looking for. They are looking for an excuse. The news reports today are that the Democrats plan a filibuster. That is the headline: ``Democrats Plan Filibuster on Estrada Nomination.'' If that is so, the Senate is going to come to a grinding halt. If Miguel Estrada cannot be confirmed, then I doubt that anybody can be confirmed. We may be locked in debate on this matter--I heard an estimate of 3 months at lunch; that may be an understatement. I don't think the American people are going to tolerate this. There has been much too much judicial politics. Republicans are as guilty of it as are the Democrats. When President Clinton was in office and Republicans controlled the Senate, nominations were blocked inappropriately. I was prepared to cross party lines where I thought it was justified. Now that we have a Republican in the White House and the Democrats have controlled the Judiciary Committee for most of the last 2 years, the shoe is on the other foot and there have been inappropriate blocking of nominees. The only filibuster which we can find is the one on Abe Fortis for Chief Justice of the United States Supreme Court, which is hardly a judgeship for the court of appeals. I say to my colleagues on the other side of the aisle, the Democrats on the Judiciary Committee, and the Democrats generally, we have to come to some accommodation. We have to come to a judicial protocol so we consider the issues on the basis of merit and qualification without politicizing and without looking for people who agree with us philosophically. I may come back to speak later, but I wanted to speak at an early point in this proceeding because of my participation in the confirmation hearings of some seven Supreme Court nominees and hundreds of lower Federal court nominees. I hope we will take Estrada out of politics and confirm him.

Mr. SPECTER. Mr. President, I have sought recognition to support the nomination of Miguel Estrada. We have heard a lot about his academic record. The Senator from New York knows what a taste of being magna cum laude at Harvard is like. He is a Harvard graduate himself. I know what it is like to be magna cum laude of Harvard, too, and the Phi Beta Kappa standing from Columbia and magna cum laude there, and editor of the Harvard Law Review. These academic credentials are unsurpassable. Fifteen cases argued before the Supreme Court, extraordinary. Clerk for the U.S. Supreme Court Justice--again, an ``A+'' rating. There could be no doubt about the qualifications of this man. Now, there is an objection raised that not enough is known about his philosophy. What is really being attempted here is to impose a test that you have to be in philosophical agreement in order to get the vote of a Senator for confirmation. I suggest that is an inappropriate test. It is not the traditional test. It is going much too far. When Justice Scalia was confirmed, he would not even give his opinion on whether he would uphold Marbury v. Madison. There have been many Supreme Court nominees and circuit court nominees with whom I have disagreed philosophically on major points, but I have not withheld my vote in confirmation for Chief Justice Rehnquist, Justice Scalia, Justice Kennedy and Justice Thomas because I did not like their views on the issue of choice. If a nominee is outside of the mainstream, that is one thing. I did not hesitated to oppose the nomination of Judge Robert Bork, where he was outside of the mainstream, even though he was nominated by my party, where he articulated the view of original intent, which simply could not be comprehended, and did not accept judicial review. He said absent original intent, there is no judicial legitimacy, and absent judicial legitimacy there cannot be judicial review. That is beyond the mainstream. No one can contend Miguel Estrada is beyond the mainstream. If there are specific objections, let's hear them. But we have not heard them. Then you have the business about the refusal to turn over his memoranda when he was in Solicitor General general's office, and you have the letter from seven ex-Solicitors General, which I ask unanimous consent to have printed in the Record--both Democrat and Republicans.

Mr. SPECTER. Mr. President, I thank the senior Senator from New York for permitting me to go for 5 minutes.