Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask if the Senator from Missouri will yield for two questions?

Mr. SPECTER. Will the Chair repeat that?

Mr. SPECTER. Mr. President, I will yield myself 5 minutes from my time on the amendment which is scheduled later this afternoon.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER. Mr. President, I now call up my amendment No. 5059.

Mr. SPECTER. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. SPECTER. Certainly. I will yield.

Mr. SPECTER. Will the Senator yield?

Mr. SPECTER. For the first time, I take sharp distinction with the chairman when he says there has been no recognition about the importance of intelligence or the workings of the Intelligence Committee or of special expertise.

Mr. SPECTER. If I may continue?

Mr. SPECTER. Mr. President, the pending business on the Foreign Intelligence Surveillance Act is an amendment which I have pending, No. 5059. We started at 4 o'clock, and we are due for 2 hours. I stepped off the floor for just a few minutes for necessaries and have come back to find a unanimous consent proposal for some six speakers. I have talked to a number of Senators on the floor, and they are in morning business. It seems to me the orderly procedure would be to allow us to finish our bill. I understand any Senator can come out and ask for unanimous consent. But, candidly, my good friend from Virginia, I wish you had given me notice.

Mr. SPECTER. Mr. President, will the Senator repeat his reservation, please.

Mr. SPECTER. The first question I have relates to the Senator's contention that the action by the Intelligence Committee is sufficient. We know from the representations made earlier today that some 70 Members of the Senate have not been briefed on this subject, and the House leadership has said that the majority of the House Members have not been briefed on this subject. There is no question that a Member's constitutional authority cannot be delegated to another Member. Under the procedures of the Senate and the House but focusing on the Senate, which is where we are, the committees hear the matters, they file reports, they make disclosure to the full body, and the full body then acts. The question I have for the Senator from Missouri is: How can some 70 Members of the Senate be expected to cast an intelligent vote granting retroactive immunity to a program that the Senators have not been briefed on and don't know about, in light of the clear-cut rule that we cannot delegate our constitutional responsibilities?

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Mr. President, on my time, which we are on, may I say, before moving to the second brief question, that I admire what the Senator from Missouri has done as vice chairman. I see his diligent work, and I know what the Intelligence Committee is involved with because I served on it for 8 years and chaired it in the 104th Congress. But when the Senator from Missouri delineates even the fewer members within the Intelligence Committee who were briefed, it underscores my point, and that is that most Senators haven't been briefed. While it is true every Senator does not know what is in every committee report, at least every Senator has access to it, and it is not a matter where there are secret facts and there has been no briefing of them, or where there has been no disclosure and they are called upon to vote. Significantly, the Senator does not deny that no Senator can delegate his constitutional authority, and that is exactly what 70 Senators will be doing. Let me move within my 5-minute time limit because time is fleeting and there is a great deal to argue.

Mr. SPECTER. We have here litigation which has been ongoing in the Federal court in San Francisco for several years, and a very extended opinion was filed on July 20 of 2006 by Chief Judge Walker on the telephone case on the state secrets doctrine, and that case is now on appeal to the Court of Appeals for the Ninth Circuit. Here we have a context where the Congress has been totally ineffective in limiting executive authority, where the Executive has violated the specific mandate of the National Security Act of 1947 to brief all members of the Intelligence Committee. It hasn't been done. The Congress has been ineffective on the Foreign Intelligence Surveillance Act, where the Supreme Court denied cert, as I said earlier today, and ducked the decision. Although from the dissenting opinion in the Sixth Circuit, they could have found the requisite standing. Now we have Chief Judge Walker coming down with a 56-page opinion last Wednesday, which does bear on the telephone case. I concede, as the Senator from Missouri has said, that the telephone companies have been good citizens. But there is a way to save them harmless with the amendment I offered in February to substitute the Government in the shoes of the telephone companies. Have they had problems with their reputation? Well, perhaps so, but they can withstand that. Have they had legal expenses? Well, those can be compensated by indemnity from the Government. We are all called upon to make sacrifices. My father, who served in World War I, was wounded in action. My brother served in World War II. I served 2 years in the Korean war, stateside. I don't think the telephone companies, given their positions, as regulated companies, have been asked for too much. I think it is highly unlikely they would ever have to pay a dime, but that could all be handled by substitution, so we look at a situation where we can both have this electronic surveillance program continue and not give up court jurisdiction through court stripping. So that brings me to my question: Does the Senator from Missouri now know of any case--there have been jurisdictional issues of a variety of sorts--but any case involving constitutional rights, which has been pending for more than 3 years and is in midstream on appeal to the Court of Appeals for the Ninth Circuit--from a very learned opinion handed down by Chief Judge Walker in 2006--when the Congress has stepped in and taken the case away from the courts, in a context where there is no other way to get a judicial determination on the constitutionality of this conduct?

Mr. SPECTER. Mr. President, on my time.

Mr. SPECTER. I yield myself 3 more minutes.

Mr. SPECTER

Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was a very extensive analysis of these issues by Chief Judge Walker of the San Francisco District Court handed down last Wednesday, and I think it was no coincidence that the decision preceded just a few days--after everybody knew, including Chief Judge Walker--of the Senate taking up this question. In that opinion, Chief Judge Walker finds the Terrorist Surveillance Program unconstitutional. He says, flatly, that the language of the Foreign Intelligence Surveillance Act of 1978 means what it says on the exclusive remedy for warrants, and that the President exceeded his article II powers as Commander in Chief. As we all know, the Detroit District Court came to the same conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on standing, and then the Supreme Court of the United States handily ducked the question by the noncert. That is the principal constitutional confrontation of our era, on article I powers by Congress and article II powers of the President as Commander in Chief. They denied cert. And on the standing issue, as disclosed by the Senate opinion in the Sixth Circuit, the Supreme Court could easily have taken the case to resolve this big issue. But now Judge Walker has decided, and it is very significant, because Judge Walker has these more than 40 cases pending on the effort to grant retroactive immunity. The case he decided it on is the Oregon case where State secrets are involved, with the inadvertent disclosure by the Federal agents. It is hard for me to see how you have a State secret which is no longer secret. And you have a document, just electronic surveillance, which was disclosed, so it is no longer a secret. That remains to be decided under the opinion of Chief Judge Walker, but he says there is a ``rich lode'' of material on the standing issue. These questions involve extraordinarily complex matters. The Senator from Wisconsin knows that. He has been deeply involved in it. And the distinguished chairman knows that, because he has been deeply involved in these matters. My question to the Senator from Wisconsin is twofold: One, what do you see as the immediate ramifications of Chief Judge Walker's opinion handed down a few days before we are to decide it? And a related question: What do you think of the likelihood that Members of the Senate have had or could have an adequate opportunity to review that 59-page opinion with all of its detailed ramifications?

Mr. SPECTER. Mr. President, would the Senator yield for a question; two questions, very briefly?

Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield for just one more question? And that is, in the context, is the Senator--I asked him to yield for one more question, and I will use a microphone so perhaps he can hear me, perhaps some people on C-SPAN2 will hear me, perhaps some Senators will hear me, because we need to be heard on this subject because of its complexity. The question relates to what the Senator from Wisconsin has said. He puts it at some 70 Members of the Senate have not been briefed on the program. I have heard from House leadership that most of the Members of the House have not been briefed on the program. There has been no official determination. The language is picked up from the allegations of the complaint as to what is alleged. The question is, How can the Congress intelligently decide--maybe that is too high a standard. But how can the Congress, especially the world's greatest deliberative body, the U.S. Senate--how can the decision be made on electronic surveillance, granting retroactive immunity, when we don't know what we are granting retroactive immunity to? The second part is, How can we fly in the face of the decision by the judge who is ruling on these cases--we are sending them all to him-- when he, speaking for the court: The law of the case is that the terrorist surveillance program is unconstitutional, that it exceeds the authority. The Foreign Intelligence Surveillance Act also covers the pen register and related items, so--not specifying what is involved here-- whatever is involved, sending it to the judge who has already said it is unconstitutional. How can we deal in an intelligent manner given those two critical factors?

Mr. SPECTER. The first question relates to the fact, as represented, that some 70 Members of the Senate will not have been briefed on the program. I have been advised by the leadership in the House that most of the Members of the House have not been briefed on the program. The chairman, in detail, went over what the telephone companies cannot do because they cannot make any public disclosures. And my question is: How can we intelligently grant retroactive immunity on a program that most Members of Congress do not know what we are granting retroactive immunity on?

Mr. SPECTER. Mr. President, my second question is, very briefly----

Mr. SPECTER. Mr. President, very briefly on the second question, and I will be very brief--the chairman has gone over the ineffectiveness of Congress in dealing with the statutory requirement for notice to the Intelligence Committees which wasn't followed. We have gone over the ineffectiveness of the courts in dealing with enforcing the Foreign Intelligence Surveillance Act, where the Supreme Court, as I detailed earlier, had ducked the question. So given the ineffectiveness of Congress--and I know, I chaired the Intelligence Committee in the 104th Congress and could find out hardly anything; I found the Director of the CIA knew so little about what was going on--and then the signing statements, the only recourse we have now is to the courts and to Chief Judge Walker. So my question to you is, if we are to maintain separation of powers and determination of constitutionality, article I versus article II powers, how in the world can we act to divest Chief Judge Walker of his jurisdiction in the case, especially in light of the opinion he handed down last Wednesday?

Mr. SPECTER. I respect Senator Bond's time, and I will pursue this with the chairman when my amendment is called up later today. I thank my colleagues.