Arlen Specter

Mr. SPECTER

Mr. SPECTER. On my time, Mr. President. When the Senator from Missouri talks about being exposed to risks or physical harm, that is happening to American soldiers every day around the world, as we know. It happened to my father serving in World War I. There are certain risks, physical or otherwise, which have to be sustained in a democracy doing our duty. We talk about money, about costs. Dollars and cents don't amount to a hill of beans when you are talking about constitutional rights. When the Senator from Missouri talks about the case can continue against the Government, that is a fallacious argument. The Government has the defense of governmental immunity. The telephone companies do not have that. I offered the amendment in February to have the Government step into the shoes of the telephone companies with no different defenses. They would have state secrets but no governmental immunity. That was turned down. It is a very different matter to drop suits as to the telephone companies. They do not have governmental immunity. It is very different. Significantly, when challenged for any case which has been going on for years, with these kinds of opinions by the Chief Judge in San Francisco and on appeal to the Court of Appeals for the Ninth Circuit, for the Congress to step in and take away jurisdiction is an anathema. In the context of congressional ineffectiveness on oversight on separation of powers and in the context of the Supreme Court of the United States, which, as I elaborated earlier today, has ducked it, the only way to get this decision is to let the courts proceed. Congress is ineffective on curtailing executive authority. That is why I think it is so important that we can both keep this surveillance program and at the same time protect constitutional rights. Mr. President, how much time do I have remaining?

Mr. SPECTER. Mr. President, I believe that history will look back at the period of time between 9/11 and the present as the greatest expansion of the executive authority in the history of this country. We have seen the unauthorized military commissions. We have seen the extraordinary rendition to the frequent invocation of state secrets, privilege, and the misuse of so-called signing statements. The signing statements represent a fundamental failure of the Congress to utilize its constitutional authority. When the Constitution provides that there is a presentment by both Houses, the President either signs it or vetoes it, and the widespread practice has now come into play where the President signs and issues a signing statement undercutting key provisions of the legislation. I introduced a bill to give Congress standing to challenge that in court. It has gone nowhere because of the impossibility of overriding a veto and because of the considerations of case in controversy. We have seen, in the context of the evolving issues, the total ill- effectiveness of Congress to provide the oversight of the Intelligence Committees. The National Security Act of 1947 expressly provides that matters such as the terrorist surveillance program should be submitted to the Intelligence Committees, but that has not been done. Only a portion of the Intelligence Committees have been briefed. Most of the limited briefing was done only when the administration needed some support for the confirmation of General Hayden as CIA Director. We have seen the provisions of the Foreign Intelligence Surveillance Act of 1978 bypassed by the executive branch on a claim of constitutional authority under article II, power as Commander in Chief, contrasted with the congressional authority under article I. A Detroit Federal court declared the terrorist surveillance program unconstitutional. The Court of Appeals for the Sixth Circuit reversed, in a 2-to-1 decision on the ground of the lack of standing, with the dissenter filing an opinion showing ample basis for standing. The Supreme Court of the United States refused to review the case. They called it a denial of certiorari. That is the major constitutional confrontation of our era, between the President asserting article II powers as Commander in Chief and the explicit statutory provision enacted by Congress in 1978 providing for the exclusive means of having wiretapping. Instead, we have warrantless wiretapping. The legislation pending now would provide retroactive immunity. I suggest retroactive immunity in a context that we could both preserve the electronic surveillance and leave the court with jurisdiction in one of two ways. One, by substituting the Federal Government as the party defendant of the telephone companies, in the shoes of the telephone companies with no more, no less rights; or secondly, requiring, as my amendment does, that the Federal district court would decide constitutionality. No one is denying the telephone companies have been good citizens. The argument has been made that, well, there may be money damages or there is a matter of public image which is involved. Well, monetary damages and public image, in my judgment, don't measure up to the right of privacy. Just as Oliver Wendell Holmes, in a 1928 case almost a century ago, said that wiretapping was ``dirty business''--and it remains dirty business--it may be necessary on national security grounds, but it has to be done within the confines of the law. That can be decided only by the courts, especially in the atmosphere that we have where the Congress has been so ineffective and where the Supreme Court of the United States ducked the issue on the case coming out of the Sixth Circuit, where there was ample grounds for finding standing to proceed with that case. Within the past 6 days, there has been a major development on this issue as a result of a judgment handed down by Chief Judge Vaughn Walker of the U.S. district court in San Francisco. Judge Walker is the same judge who has the telephone company cases which were consolidated and sent to him under Federal rules on a multidistrict panel. Judge Walker found flatly that the President exceeded his constitutional authority when he ignored the Foreign Intelligence Surveillance Act. This is the exact language in the 56-page opinion: Congress appears clearly to have intended to--and did-- establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA-- The Foreign Intelligence Surveillance Act-- limits the power of the executive branch to conduct such activities. So now we have the judge who is hearing these telephone cases having said that such surveillance is unconstitutional. FISA covers not only the traditional wiretaps but explicitly covers pen registers and trap- and-trace devices which could include whatever it is the telephone companies were allegedly doing. On that subject, we do not know the full extent of what the telephone companies are doing. All we have are the allegations and the legal papers. Here, Congress is being asked to pass upon a program on which most Members have not been briefed. As stated earlier on the floor today, 70 Members of the Senate would be called upon to vote on a program when they don't even know what it is. The House leadership has pointed out that most of the Members of the House of Representatives have not been briefed. In an exchange with the Senator from Missouri today, I raised the fundamental constitutional point that Members' constitutional responsibilities cannot be delegated. You can't delegate them to a minority of the Senate, but that is what we are being asked to do. It is a pig in a poke. The old expression describes it very well. We don't even know what the program is, and we are being asked to ratify it. The issue was put to the Senator from Missouri, the chief defender of this bill, of any precedent where you have a case pending before Judge Walker, an extended opinion in July of 2006 on appeal to the Court of Appeals for the Ninth Circuit. If this act is passed, it will be unceremoniously jerked out from under the court. I asked him if there is any case in history, and I would repeat that challenge to the distinguished chairman of the committee. What we have left is judicial review. Without judicial review, there is no way to effectuate the constitutional doctrine of separation of powers, which is so fundamental in our society. Even when the proponents of the bill talk about money and business reputation--no one is challenging the good citizenship of the telephone companies, and the likelihood of monetary damages is extremely remote. But if the Government were to be substituted as the party defendant, that is a matter of dollars and cents which hardly comports to the fundamental issues which are involved in civil liberties. It is understandable that Congress continues to support law enforcement powers because of the continuing terrorist threat. No one wants to be blamed for another 9/11. My own briefings on the telephone companies' cooperation with the Government have convinced me of the program's value so that I voted for it, even though my amendment to substitute the Government for the telephone companies was defeated in the Senate's February vote. Similarly, I am prepared to support it again as a last resort, even if it cannot be improved by providing for judicial review, the pending amendment. However, since Congress has been so ineffective in providing a check and balance, I will fight hard--and I am fighting hard--to secure passage of this amendment to keep the courts open. It is our last refuge, our last big stand when the stakes are high, and they invariably are. When Congress addresses civil liberties and national security, Members frequently must choose between the issues of two imperfect options. Unfortunately, we too often back ourselves into these corners by deferring legislation until there is a looming deadline. Perhaps that is why so many of my colleagues have resigned themselves to accepting the current bill without seeking to improve it further. Although I am prepared to stomach this bill if I must, I am not yet ready to concede that the debate is over. Contrary to the conventional wisdom, I do not believe it is too late to make this bill better. Perhaps the Fourth of July holiday will inspire the Senate to exercise its independence from the executive branch, now that we are back in Washington. How much time do I have remaining, Madam President?

Mr. SPECTER. I reserve the remainder of my time.

Mr. SPECTER. Madam President, I had hoped to ask a couple questions of the distinguished Senator from Rhode Island. I consulted with the chairman, who wants to be recognized next. It would be my request, if I may have Senator Whitehouse's attention, that he stay on the floor to engage in a discussion, a colloquy with me when the chairman has concluded.

Mr. SPECTER. Madam President, I do wish to engage in a colloquy with the Senator from Rhode Island, but first, with the chairman having just completed, I would like to respond to some of his contentions and engage in a question or two with the chairman. When the Senator from West Virginia argues that my amendment would undermine the delicate compromise which the Intelligence Committees have reached, that is what the full Senate is supposed to do. The committees deliberate, the House and the Senate come to a conference report, they bring the matter to the Senate, and then it is up to the full body to make a determination. So there is nothing unusual about disagreeing with the compromise, however delicate. The chairman argues that it would require the courts to consider difficult constitutional issues. That is exactly what the courts are supposed to do. The full impact of Chief Judge Vaughn Walker's decision and how far-reaching it goes has not been felt, understood, or analyzed in the course of only 6 days--an opinion which runs more than 50 pages. We are dealing with court-stripping in the middle of litigation that has been going on for years. Judge Walker's opinion concerning the telecom companies was in July 2006, with the telephone companies now on appeal. It really goes back to the fundamental principle of Marbury v. Madison, when Chief Justice Marshall made the determination that it is up to the courts to decide what the Constitution means, and we would be undercutting that judicial process in midstream. Earlier, I posed a question to the Senator from Missouri, which if the chairman wishes to answer would be fine. I know and I admire what Senator Rockefeller has done. I have worked with him since he was elected in 1984, and we worked together on the Veterans' Committee and on intelligence matters and on many major matters. When the history is written, there will be a famous handwritten letter disclosed by Senator Rockefeller to the administration about how deeply he feels and how deeply he cares about these matters. But I questioned the Senator from Missouri, who is a member of the bar and quite a scholar on constitutional law, if there had been any case known to him picked up in midstream after years of work in the district court and pending on appeal. It really goes right to the heart of Marbury vs. Madison. You have Chief Judge Walker having flatly decided that the terrorist surveillance program is unconstitutional, and you have Chief Judge Walker leaving aside the issues of standing but saying: Plaintiff amici hint at the proper showing when they refer to ``independent evidence disclosing that plaintiffs have been surveilled'' and a ``rich lode of disclosure to support their claims.'' Going to the standing issue. Although not decided, why not let the courts finish it? You have these decisions. Why not keep the current program in effect and not interrupt the courts and have the judicial decision? So when the chairman raises the point that it would require the courts to consider difficult constitutional questions, I agree with him, but that is what the Federal courts are supposed to do, and it really is untoward for the Congress to step into the middle of it. I know of no case like it. And here we are being asked to strip the court of jurisdiction when they are in midstream, where they may well find some important facts to some important matters in the course of the judicial decisions which would influence Congress. We have the amendment offered by the distinguished Senator from New Mexico, Mr. Bingaman, which would call upon the inspector general to find out what the facts are on immunity since, as I say, we are being asked to pass on this when we don't know the full import. And I support the Bingaman amendment. I am an original cosponsor of it. Well, similarly, what Chief Judge Walker may find here may be very important. But let me raise the first of two questions with the chairman.

Mr. SPECTER. Well, Madam President, by way of reply, I understand that this provision only concerns the telephone companies, and I understand the chairman's argument about good faith. But good faith is not determinative in and of itself. If the conduct violates the Constitution, there is a constitutional violation no matter how good the faith may be. It would be a good reason to indemnify, to substitute, to hold them harmless, but not to exonerate them for a constitutional violation. The chairman says companies should not be held liable if the Government acted unconstitutionally. That is not correct as a matter of law. Where the telephone companies are aiders and abetters and accessories before and after the fact and really act jointly with the Government, they can be liable.

Mr. SPECTER. Let me finish the reply, and I will be glad to yield again. When the argument is made that only the case against the telephone companies is involved, that is not quite accurate. It is being dismissed. It is no coincidence that Chief Judge Walker handed this opinion down a few days--6 days--before it was publicly known that the Senate would be taking up this issue. And he went out of his way to raise the issue about standing and the rich lode of disclosure. So if this act is passed and retroactive immunity is granted, it will remove the telephone companies, true, and there will be another case standing, but there will be no judicial determination of the constitutionality of what the telephone companies did. Chief Judge Walker has those cases against the telephone companies too, and he has pretty well given a roadmap as to what he is going to do because he said the terrorist surveillance program is unconstitutional and the Foreign Intelligence Surveillance Act covers pen registers and trap-and-trace devices, covering whatever it is the telephone companies did here; although, again, we do not know for sure. So where he said the terrorist surveillance program is unconstitutional and the statute covers pen registers and trap-and-trace devices, to remove the case from him at this stage will eliminate a determination of the constitutionality of whatever it is the telephone companies did and really flies in the face of the historic role of the courts since 1803 in Marbury vs. Madison. Now I am glad to yield to the chairman.

Mr. SPECTER. Will the Senator yield?

Mr. SPECTER. If I may continue, no recognition of the work of the Intelligence Committee--let me limit it to that--which was certainly said. I take sharp exception because I served 8 years on the committee and served as chairman for 2 years. I think I know what the Intelligence Committee does and what its work is. I take sharp exception to the suggestion that there is not a full awareness on the part of this Senator as to the terrorism threat. I made that explicit. When I said that if I have to take this bill, I will, because of the threat of terrorism, just as I voted for the bill earlier when my substitution amendment was not adopted. But when the chairman says that this has gone through a laborious process with the House and is a delicate compromise--that happens all the time. It happens all the time. You are right in the middle of it, you have seen it, and I know, too, because I have been there. I have been here 28 years, and I know exactly what goes on. When you say this ought to be accepted, I disagree. This bill can be made better. When you say you deal with the intelligence function and not the constitutional function--again, I sharply disagree. We have to legislate on what is constitutional. We may have a different opinion than Chief Judge Walker, but we cannot ignore the question of constitutionality. If it takes 3 or 4 more years, we are talking about civil rights and constitutional rights.

Mr. SPECTER. This program has been continued on a temporary basis. It has been extended. The intelligence chiefs have been satisfied with that. I don't like to extend it. I would like to resolve it now. But if it takes the courts longer--the Supreme Court ducked the Detroit case. If it takes them years to decide this, that is the price of constitutional rights. If you take a look at the history of this country, if you take just one case, Plessy v. Ferguson, in 1896, I believe, to Brown v. Board in 1954, to eliminate separate but equal, you come to a constitutional doctrine. I am prepared to take my time, if I can find the requisite number of votes in this body. Madam President, how much time remains on each side?

Mr. SPECTER. Judge Walker is certainly listening to constitutional claims. He may even be listening to the Senate. Somebody may be listening on C-SPAN 2. I thank the distinguished Senator from Rhode Island for his candid answers. How much time is remaining? The PRESIDING OFFICER (Mr. Lautenberg.) The Senator has 13 and a half minutes remaining.

Mr. SPECTER. Madam President, this is as good a time as any to move forward with a question or two, which I would like to have in a colloquy with Senator Whitehouse. This issue has been raised before, but I would like your views on it, Senator Whitehouse. You have a distinguished record as an attorney, U.S. attorney, attorney general, serving with distinction on the Judiciary Committee for the past year and a half. I raised the issue earlier about the constitutional authority of a Member to delegate his authority, recognizing that there are many matters where we accept committee reports, but at least Senators have access to material. When I was chairman of the Judiciary Committee--the tradition is to tell the chairman and the ranking member about a program such as the terrorist surveillance program. I was blindsided by it, in mid-December of 2005. We were on a Friday, the final day of the argument on the PATRIOT Act. We were about to go to final passage, when the New York Times published its paper. That morning Senators said they had been prepared to vote for it but no longer were. As chairman of the committee, I could not be briefed on the program. Since that time, there has been a change of heart to an extent but, as stated on the floor of the Senate earlier, some 70 Members of this body will be voting on retroactive immunity for a program they do not know or understand. The majority of the House, according to House leadership, has not been briefed on the program. Do you have any doubt that we may not constitutionally delegate our authorities to vote?

Mr. SPECTER. I would like a reply as to whether it is your view, as a constitutional matter, Members of Congress can delegate their authority to vote.

Mr. SPECTER. Madam President, the statistics I have are, out of the House there have been 21 House Intelligence Committee members briefed and as many as 40 Judiciary Committee members; in the Senate, 15 on the Intelligence Committee and 19 on the Judiciary Committee for a bicameral total of 95, which is 17.75 percent of the entire Congress. But if you take the chairman's figures, you still have a majority of Members of Congress who have not been briefed, who are, in effect, delegating their authority to vote on a matter where they don't know what they are granting immunity for. But I refer, again, to the Senator from Rhode Island, if he cares to answer the question.

Mr. SPECTER. Mr. President, I reserve the remainder of my time.

Mr. SPECTER. Madam President, one final question. Does the Senator from Rhode Island know of any case which has been pending in the Federal courts for at least 3 years, as the telephone company case has, with the opinion by Chief Justice Walker in July of 2006 and now pending on appeal in the Ninth Circuit, where the Congress stepped in to take away the jurisdiction by a grant of immunity as proposed in this legislation?

Mr. SPECTER. Well, with all due respect to my good friend from Virginia, I was on the floor all afternoon, you sitting there and me sitting here. But that is water over the dam. My request, Mr. President, is that--the only Senator on this list who I have ascertained is going to speak to the bill is Senator Carper; he is on the list now for 10 minutes--we conclude the bill, or the alternative: to move ahead with the balance of the times reserved until tomorrow morning.

Mr. SPECTER. Mr. President, with respect to waiting, I have been here since 11 o'clock this morning on this bill. Mr. President, I ask unanimous consent that Senator Carper be recognized, as he is, for 10 minutes, and that the other Senators subject to the unanimous consent request be accorded the time given to them, and that the remainder of the time reserved be scheduled for tomorrow at the discretion of the majority leader.

Mr. SPECTER. Mr. President, parliamentary inquiry: I heard the Chair say there is 10 minutes remaining of my time.

Mr. SPECTER. Well, that time is yielded to Senator Carper, so that would take all the time allotted to this Senator.

Mr. SPECTER. Well, there has been an objection to it, as I understand.

Mr. SPECTER. Mr. President, will the Senator from Delaware yield for a moment?

Mr. SPECTER. Mr. President, I understand the Senator from Delaware is using time from Senator Rockefeller.

Mr. SPECTER. So my time would remain. I had thought there was 13 minutes remaining. Is there only 10?

Mr. SPECTER. I thank the Chair, and I reserve the remainder of my time, however the scheduling may work out.