Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to express my thanks to Shane Creamer, on his extraordinary volunteer service to the Commonwealth of Pennsylvania as the State president for the American Association of Retired Persons, the AARP. I also express deep regret that Mr. Creamer will no longer serve on the Executive Council as the Pennsylvania State president for the AARP as he will be stepping down February 22, 2008. He currently holds the highest volunteer position within the AARP and has since 2002. In 1951, Shane Creamer graduated from Villanova University and in 1953 graduated from Temple University School of Law. During his time at each institution he served as student body president. Immediately after earning his law degree, Shane spent 2 years in the U.S. Army assigned to the Staff Judge Advocate. Before entering private practice, Creamer spent 11 years with the U.S. Justice Department in Philadelphia, including 8 years as the first assistant U.S. attorney and in 1968 served as the first director of the Pennsylvania Crime Commission. In 1968 he published the first edition of his first book ``The Law of Arrest, Search and Seizure,'' which was used as a training manual for the U.S. Secret Service for a number of years in the 1970s and 1980s. In 1971, he published his second book, ``A Citizens Guide to Legal Rights.'' From 1971 to 1973 Shane served as the attorney general of the Commonwealth of Pennsylvania, which was followed by a successful career as a trial lawyer specializing in civil and criminal cases with the law firms Carroll, Creamer and Duffy; Sprague, Creamer and Sprague; Montgomery McCracken; and Dilworth, Paxson, LLP. In 1980 he returned to Villanova University as a professor at the law school for 5 years. Shane has also served as chairman of the board of trustees of the Philadelphia Prison System and as a member of the board of Goodwill Industries. He continues his dedication to service as a member of both the board of the Pennsylvania Prison Society and Joint State Government Commission's Advisory Committee on Wrongful Convictions. As president of AARP Pennsylvania, Shane championed the interests of Pennsylvania's 1,905,000 seniors. Older Pennsylvanians have certainly benefited from Shane's passion and tireless dedication. During his tenure, AARP fought for Medicare Part D drug coverage and won approval of a new State law that ends discrimination against older workers receiving Social Security. The AARP has recently helped strengthen the Pharmaceutical Assistance Contract for the Elderly, PACE, and the PACE Needs Enhancement Tier in Pennsylvania, expanded the property tax and rent rebate program, and improved the State's long-term care system. Shane Creamer is an outstanding advocate in the fight to protect the interests of older Pennsylvanians and truly a great supporter for the elderly. He will be missed in his capacity as Pennsylvania's AARP president as he goes forward in his future endeavors. I congratulate him on a brilliant tenure and applaud Shane's outstanding service to the people of Pennsylvania. I wish him, his wife Mary-Ellen, and all his family the very best in the years to come.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to expand a widely used business tax benefit whereby business owners balance out net losses over prior years when the business has a net operating gain. Spreading out this tax liability helps a business to decrease the adverse impact of a difficult year. Specifically, this legislation increases the general net operating loss, NOL, carryback period from 2 years to 5 years in the case of an NOL for any taxable year ending during 2006, 2007, or 2008. I am pleased with the quick passage of H.R. 5140, the Recovery Rebates and Economic Stimulus for the American People Act of 2008. It provides tax rebates for individuals, capital investment incentives for businesses, and important modifications to our housing laws that will enable more homeowners to refinance their unmanageable mortgages. However, it is my belief that several important items were left behind that deserved to be included. The bill I am introducing today is identical to Section 113 of a modified Senate Finance Committee Economic Stimulus package, Senate Amendment No. 3983 to H.R. 5140. On February 6, 2008, the Senate rejected this broader package on a procedural vote, leaving it just one vote short of the 60 that were required. I am still hopeful that Congress will revisit some of these important issues in 2008, either as stand-alone legislation or as part of another stimulus package if it is determined to be appropriate. One particular industry that would benefit from passage of this legislation is the home building industry, which is currently struggling due to a huge inventory of new homes under construction with few buyers. Under present law, a business loss can only be deducted from taxes paid from the previous 2 years. If the loss cannot be carried back, it must be used in the future. Many home builders are now reporting financial losses when a few years ago they were generating jobs, providing local development, and paying taxes. Expanding the NOL carry-back provision to 5 years would enable builders and other businesses to receive an immediate rebate on taxes paid in previous years and provide a much needed infusion of capital to their businesses. The inability to do so will result in the need to either increase high-cost borrowing or further liquidate land and homes, which would only compound the existing inventory problem. The Joint Committee on Taxation estimated that passage of this provision as part of the Senate Finance Committee Stimulus package would have cost $15 billion in 2008 and $5.1 billion over 10 years. I urge my colleagues to support this important legislation that will help numerous industries that are currently struggling to survive in a harsh economic downturn.

Mr. SPECTER

Mr. SPECTER. Mr. President, I congratulate the American Society of Hematology--ASH--on its 50th anniversary and to pay tribute to the contributions they have made in preventing and eliminating blood related diseases. The society has grown substantially from its 200 members at its inception in 1958, to over 15,000 members presently, and is recognized as the world's premier organization in research promotion, clinical care, education, training, and advocacy in the field of hematology. Society members consist of practitioners and researchers who have been able to translate Federal research dollars into effective treatments for millions of people afflicted with diseases that were at one time untreatable and fatal. The blood and blood-related diseases studied and treated by hematologists include disorders such as leukemia and lymphoma, thrombosis, anemia and bleeding, and congenital disorders such as sickle cell anemia, hemophilia, and thalassemia. The advancements in remedies of these disorders are a direct result of the continuing efforts made by the AHS. I sustained an episode with Hodgkin's lymphoma cancer 2 years ago. That trauma, that illness, I think, could have been prevented had that war on cancer declared by the President Nixon in 1970 been prosecuted with sufficient intensity. All of us know people who have been stricken by fatal diseases and many other maladies. It is my hope that other organizations will use the success of the AHS as an example in contributing to this Nation's desire for finding cures for the most fatal diseases. As chairman, and now ranking member of the appropriations Subcommittee on Labor, Health and Human Services, I have been an ardent supporter of securing Federal funds for the National Institutes of Health the crown jewel of the Federal Government, maybe the only jewel of the Federal Government. Health is the country's No. 1 capital asset, and the American Society of Hematology has contributed to its success. Hematologists have been instrumental in pioneering the use of hydroxyurea in the treatment of sickle cell disease and have developed the first successful cure of childhood leukemia. Moreover, hematologists were responsible for the research that led to, Gleevac, the first anticancer drug developed to target a molecular problem that causes chronic myelogenous leukemia. The American Society of Hematology has played an important role in the unprecedented growth and advancement of hematology research. With so many great successes over the past 50 years, I am confident the next 50 years will bring ASH and its over 15,000 members even more accomplishments in treating and eliminating blood diseases.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to expand a widely used business tax benefit whereby business owners balance out net losses over prior years when the business has a net operating gain. Spreading out this tax liability helps a business to decrease the adverse impact of a difficult year. Specifically, this legislation increases the general net operating loss, NOL, carryback period from 2 years to 5 years in the case of an NOL for any taxable year ending during 2006, 2007, or 2008. I am pleased with the quick passage of H.R. 5140, the Recovery Rebates and Economic Stimulus for the American People Act of 2008. It provides tax rebates for individuals, capital investment incentives for businesses, and important modifications to our housing laws that will enable more homeowners to refinance their unmanageable mortgages. However, it is my belief that several important items were left behind that deserved to be included. The bill I am introducing today is identical to Section 113 of a modified Senate Finance Committee Economic Stimulus package, Senate Amendment No. 3983 to H.R. 5140. On February 6, 2008, the Senate rejected this broader package on a procedural vote, leaving it just one vote short of the 60 that were required. I am still hopeful that Congress will revisit some of these important issues in 2008, either as stand-alone legislation or as part of another stimulus package if it is determined to be appropriate. One particular industry that would benefit from passage of this legislation is the home building industry, which is currently struggling due to a huge inventory of new homes under construction with few buyers. Under present law, a business loss can only be deducted from taxes paid from the previous 2 years. If the loss cannot be carried back, it must be used in the future. Many home builders are now reporting financial losses when a few years ago they were generating jobs, providing local development, and paying taxes. Expanding the NOL carry-back provision to 5 years would enable builders and other businesses to receive an immediate rebate on taxes paid in previous years and provide a much needed infusion of capital to their businesses. The inability to do so will result in the need to either increase high-cost borrowing or further liquidate land and homes, which would only compound the existing inventory problem. The Joint Committee on Taxation estimated that passage of this provision as part of the Senate Finance Committee Stimulus package would have cost $15 billion in 2008 and $5.1 billion over 10 years. I urge my colleagues to support this important legislation that will help numerous industries that are currently struggling to survive in a harsh economic downturn.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to congratulate the firm of Rawle and Henderson LLP on its 225th anniversary, and on being recognized as the oldest law firm in continuous practice in the U.S. Five generations of the Rawle family have established and maintained a firm that has expanded to over a hundred attorneys in eight offices and five States. Rawle and Henderson attorneys have served as elected officials in both the civic and legal community throughout the past 225 years, and have served as appointed and elected judges on the Federal and State benches. Inspired by Benjamin Franklin's accomplishments, William Rawle founded his practice in Philadelphia in 1783. His two sons followed their father's example, joining the practice in 1810. Joseph W. Henderson, a graduate of Harvard Law School, joined the firm in 1917, expanding the firm's reputation for legal excellence, and arguing numerous landmark cases before the Supreme Court. The Rawle and Henderson firm continues to prosper in 2008, employing a racially and socioeconomically diverse staff. The exceptional individuals who have founded and expanded the Rawle and Henderson firm into the prestigious organization it is today should be honored for their achievements. Their service has greatly benefited the civic and legal community of Pennsylvania and the U.S. I am confident that the Rawle and Henderson firm will continue to match their predecessors' commendable accomplishments for years to come.

Mr. SPECTER

Mr. SPECTER. Mr. President, I join the Senator from Louisiana in his request to have a hearing and then proceed with an up-or-down vote. I have reviewed the record of the nominee. It appears to me that the nominee is qualified for the position. In his service as a U.S. attorney, he has already had Senate confirmation. But the basic proposition of having a hearing and a vote, I think, is very fundamental to so many pending nominees beyond the nominee addressed by the Senator from Louisiana today. I have discussed this issue on a number of occasions with the senior Senator from Louisiana, and she has been of the view that she ought not to return the blue slip, and I respect her decision. But I also respect the position of Senator Vitter in trying to move forward. It would be my hope that we could come to some accommodation, that we could find some way to set a timetable for a hearing, at least on that. Senator Vitter has advised me that he has written to both the distinguished chairman and the senior Senator from Louisiana and that there is to be a unanimous consent request. I know Senator Vitter will await the arrival of someone who can object because my expectation is a unanimous consent request will be objected to. But the issue involved is to raise the issue and to make the point as to what has happened and to try to see if there can be some accommodation, as noted by the floor discussion today. I see Senator Vitter nodding in the affirmative. In my capacity as ranking member on the Judiciary Committee, I would like to get these nominations to move forward. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce Nino's Act, to provide for the continuance of successful treatment for children who are required to leave National Institutes of Health, NIH, research studies. The NIH provides the greatest medical research in the world on innumerable diseases, including cancer, Alzheimer's, Parkinson's. The NIH also conducts excellent research on diseases that affect children. To conduct that research many brave children must partake in research studies including observational, or natural history, studies and clinical trials to test experimental therapies. This participation is critical to understanding diseases and ultimately finding cures at the NIH. To participate in the trials and studies, children and their families often make considerable sacrifices. Families will travel great distances to receive treatment that may provide relief from the child's illness. In many cases, parents and doctors will have tried many treatments for the child's disease about which little may be known or understood. The NIH studies represent an opportunity for both the medical community to learn more about the disease and the child to be studied and potentially treated by the best researchers in the world. When the experimental treatments are successful, it is cause for great celebration for the child. The joy, however, can end quickly as the studies come to end but the children who have been part of them continue to be stricken by these terrible illnesses. Nino's Act seeks to transition children out of the NIH studies as they end so they don't experience a gap in their important treatment. This legislation continues the successful treatment initiated in NIH studies by providing access to the same prescription drugs for children who are required to leave NIH clinical studies due to the studies ending, researcher leaving, or other reason. Often drugs that are used successfully in these studies have not yet been approved by the Food and Drug Administration or have not been approved for treatment of the child's specific disease. As such, it is nearly impossible for children to get access or insurance coverage for these drugs. This bill makes that access possible by requiring Medicaid to cover the cost of treatment in the event that the children's health insurance does not. On occasion, insurers will cover the cost of the treatment for these children if they have adequate insurance and the FDA has approved the drug for off-label uses. More often then not, however, children do not have health insurance, or have insufficient insurance to obtain these drugs. As a result, children suffer their diseases without relief from the treatment as established in the clinical NIH studies. To ensure that these children have access to successful care post-study, Nino's Act requires Medicaid to cover the cost of treatment for these children. While Medicaid access is traditionally based on income, due to the importance of these drugs to the child's well-being the income component will be waived. To ensure Medicaid is not unnecessarily covering medication, Nino's Act requires the physicians participating in the research to certify the treatment as successful and essential. This important issue was introduced to me by Lori Todaro of Newville, PA. Lori's son Nino suffers from Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. This disease takes a devastating toll on those who suffer from it. The auto-inflammatory disease can cause joint inflammation arthritis, Crohns, colitis, irritable bowel syndrome, and cyclical high fevers. Treatment for Periodic Fever Syndrome is experimental at best; Lori and Nino have visited a number of doctors and tried many medications in an effort to control the disease. In 2003, Nino was fortunate to be selected to take part in an observational study at NIH in Bethesda, Maryland for Undifferentiated Auto-inflammatory Periodic Fever Syndrome. During the course of the study, Nino was given a new medication and his condition greatly improved. Before he participated in the study he was being fitted for wheelchairs and was home schooled because his symptoms were so disruptive and unpredictable. The NIH treatment allowed him to resume a normal life and enabled him to attend school and play soccer. While Nino's treatment was successful he could not remain part of the study indefinitely and was encouraged to seek coverage for his treatments through his private insurer. Initially, the Todaro's insurer would not agree to cover the cost of the experimental drug and only after an intense lobbying effort by Lori, did the insurer agree to cover Nino's prescriptions. Nino's story is a successful one, but also serves to highlight the issue that children and their families are facing as they transition out of NIH studies. For many, NIH trials are a source of hope for relief from the worst diseases known to man. The excellent doctors and research teams at NIH make invaluable contributions to our understanding of complex and debilitating diseases. This legislation seeks to amplify the NIH's contributions by allowing America's sickest children to continue their successful treatment under Medicaid coverage. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce Nino's Act, to provide for the continuance of successful treatment for children who are required to leave National Institutes of Health, NIH, research studies. The NIH provides the greatest medical research in the world on innumerable diseases, including cancer, Alzheimer's, Parkinson's. The NIH also conducts excellent research on diseases that affect children. To conduct that research many brave children must partake in research studies including observational, or natural history, studies and clinical trials to test experimental therapies. This participation is critical to understanding diseases and ultimately finding cures at the NIH. To participate in the trials and studies, children and their families often make considerable sacrifices. Families will travel great distances to receive treatment that may provide relief from the child's illness. In many cases, parents and doctors will have tried many treatments for the child's disease about which little may be known or understood. The NIH studies represent an opportunity for both the medical community to learn more about the disease and the child to be studied and potentially treated by the best researchers in the world. When the experimental treatments are successful, it is cause for great celebration for the child. The joy, however, can end quickly as the studies come to end but the children who have been part of them continue to be stricken by these terrible illnesses. Nino's Act seeks to transition children out of the NIH studies as they end so they don't experience a gap in their important treatment. This legislation continues the successful treatment initiated in NIH studies by providing access to the same prescription drugs for children who are required to leave NIH clinical studies due to the studies ending, researcher leaving, or other reason. Often drugs that are used successfully in these studies have not yet been approved by the Food and Drug Administration or have not been approved for treatment of the child's specific disease. As such, it is nearly impossible for children to get access or insurance coverage for these drugs. This bill makes that access possible by requiring Medicaid to cover the cost of treatment in the event that the children's health insurance does not. On occasion, insurers will cover the cost of the treatment for these children if they have adequate insurance and the FDA has approved the drug for off-label uses. More often then not, however, children do not have health insurance, or have insufficient insurance to obtain these drugs. As a result, children suffer their diseases without relief from the treatment as established in the clinical NIH studies. To ensure that these children have access to successful care post-study, Nino's Act requires Medicaid to cover the cost of treatment for these children. While Medicaid access is traditionally based on income, due to the importance of these drugs to the child's well-being the income component will be waived. To ensure Medicaid is not unnecessarily covering medication, Nino's Act requires the physicians participating in the research to certify the treatment as successful and essential. This important issue was introduced to me by Lori Todaro of Newville, PA. Lori's son Nino suffers from Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. This disease takes a devastating toll on those who suffer from it. The auto-inflammatory disease can cause joint inflammation arthritis, Crohns, colitis, irritable bowel syndrome, and cyclical high fevers. Treatment for Periodic Fever Syndrome is experimental at best; Lori and Nino have visited a number of doctors and tried many medications in an effort to control the disease. In 2003, Nino was fortunate to be selected to take part in an observational study at NIH in Bethesda, Maryland for Undifferentiated Auto-inflammatory Periodic Fever Syndrome. During the course of the study, Nino was given a new medication and his condition greatly improved. Before he participated in the study he was being fitted for wheelchairs and was home schooled because his symptoms were so disruptive and unpredictable. The NIH treatment allowed him to resume a normal life and enabled him to attend school and play soccer. While Nino's treatment was successful he could not remain part of the study indefinitely and was encouraged to seek coverage for his treatments through his private insurer. Initially, the Todaro's insurer would not agree to cover the cost of the experimental drug and only after an intense lobbying effort by Lori, did the insurer agree to cover Nino's prescriptions. Nino's story is a successful one, but also serves to highlight the issue that children and their families are facing as they transition out of NIH studies. For many, NIH trials are a source of hope for relief from the worst diseases known to man. The excellent doctors and research teams at NIH make invaluable contributions to our understanding of complex and debilitating diseases. This legislation seeks to amplify the NIH's contributions by allowing America's sickest children to continue their successful treatment under Medicaid coverage. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. I thank Senator DeMint for his candid and forceful statements which I think clear the record.

Mr. SPECTER. Mr. President, on October 23, 2007, Senator DeMint and I had a debate in the Senate on Senator DeMint's amendment to strike $3.7 million in grants in the Appropriations bill for Labor, Health and Human Services and Education with $2.2 million going to the AFL-CIO Appalachian Council and $1.5 million to the AFL-CIO Working for America Institute. This funding applied to job-training programs covering some 11 States and the District of Columbia. During the course of the debate, Senator DeMint made the following statement: This amendment is part of an effort to clear up what a lot of us have called the culture of corruption over the last several years. A lot of this has come from Americans connecting the dots between the earmarks that we give to our favorite causes back home and many of the campaign contributions and political support that we get back here in Congress. While motivations are generally good, at best the appearance of what is going on here has alarmed the American people. When I outlined my reasons for supporting these grants, Senator DeMint replied: I agree with all the purposes the Senator stated, all of the ideas of getting teenagers to work in Philadelphia. All of those things are good. I am not taking argument with any of them. If the AFL-CIO is the best source to deliver these services, there should not be any problem with this at all. All we are asking is to make this a competitive grant so that we can have criteria and accountability in a system so that what we want to accomplish will actually get accomplished. Senator DeMint's amendment was rejected on a 60-34 vote. After the floor debate and vote were over, Senator DeMint and I discussed the issues in the debate. Senator DeMint stated that he was not suggesting any corrupt practice or inappropriate conduct by me, but only that it was preferable to use the funds for competitive bids. Senator DeMint and I agreed that it would be useful to correct any misimpressions by having this colloquy for the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, this amendment substitutes the Government for the party defendant in place of the telephone companies. It is designed to maintain some check and balance on the executive because Congress has been totally ineffective to do so. It accomplishes both purposes. It keeps the program going to gain intelligence information necessary for national defense, but it maintains the courts being open as a check and balance. I yield to Senator Whitehouse.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on a pending amendment sponsored by Senator Whitehouse and myself. I am delighted to see Senator Whitehouse occupying the chair. I have a receptive, though a limited, audience. I begin by thanking the Senate personnel for staying late. Monday is a day when I customarily travel the State--Scranton, Harrisburg--and arrive late in the day. I am pleased to see Senator Dodd is also speaking so that my late arrival is not the sole cause. But we do have to work late because the majority leader has scheduled votes on these issues tomorrow. I wanted an opportunity to supplement earlier statements which I made on this issue because I believe it is an important issue on which the Senate needs to focus. The legislation and oversight and judicial review since 9/11 have provided a historic confrontation among the three branches of Government on the basic doctrine of separation of powers. When I say it is historic, I do not believe that is an overstatement. There is no doubt that the events of 9/11 require a vigorous response by the United States to fight terrorism. The brutal, heinous murder of 3,000 Americans and the continuing threat of al-Qaida worldwide require that we fight terrorism with great vigor. At the same time, it is important that constitutional rights be maintained. The fact is that the Congress has been very ineffective in limiting the expansion of Executive power. Only the courts have been able to maintain a balance. The specific issue involves the effort to give the telephone companies retroactive immunity and foreclose some 40 lawsuits in some Federal court which are pending at the present time. There is no doubt that the information reportedly obtained by the telephone companies for national security is vital and needs to be maintained. But there is a way to keep that information flowing and still maintain the constitutional balance by implementing the amendment which Senator Whitehouse, the Presiding Officer, and I have introduced, the essence of which is to substitute the U.S. Government as the party defendant. In that situation, the Government would have the identical defenses the telephone companies now have--no more, no less. For example, customarily the Federal Government has the defense of sovereign immunity. You can't sue the Federal Government unless the Government consents or unless the Congress of the United States says you can sue the Government. The Congress of the United States is the final determiner of that; of course, with Presidential signature or with an override, if the President vetoes. So in this situation, the Government being substituted for the telephone companies would not have the governmental immunity defense because the telephone companies do not have it. The Government would have the state secrets defense because it has intervened in the cases against the telephone companies to assert the defense of state secrets, so that if state secrets are involved, that may block the plaintiffs' cases. Under our amendment the Government would continue to have the availability of a state secrets defense. I doubt very much there will be any monetary awards in these cases, but that is not for me to decide. That is for the judicial process to decide, to run its course. When I say the legislative branch has not been successful in oversight in limiting the expansion of Executive power, I do so because of what has happened with the terrorist surveillance program. The Foreign Intelligence Surveillance Act is an explicit statute which is the law of the land, explicitly stating that wiretapping can occur only with judicial authority. The tradition is for the Government to present an affidavit containing probable cause to warrant the wiretap that goes before a judge. The judge reviews it. If probable cause is present, then there may be an invasion of privacy under our Constitution with that constitutional safeguard of a neutral magistrate. The President has taken the position that he does not have to be bound by the Foreign Intelligence Surveillance Act because of his article II powers under the Constitution. He is arguing that the statute cannot affect the President's constitutional authority, and he is correct as a principle of law. But the question is whether he has that authority. And the terrorist surveillance program was secret from the time it was put into effect shortly after 9/11/2001 until mid- December 2005, when the Senate was in the midst of the final day of debate on the PATRIOT Act re-authorization, which was to give the law enforcement authorities broader power. I chaired the Judiciary Committee at that time and was arguing to move ahead with the PATRIOT Act re-authorization when that morning the news came across that there had been a secret program in effect. That scuttled our efforts to get the PATRIOT Act passed that day, with the comment being made that some were prepared to vote for the PATRIOT Act re-authorization until they found out about this secret program they hadn't known about. A long time has passed since December 2005. That matter is still tied up in the courts. But the courts, at least, are available to make a decision on that ultimately--it may take some time, but to make a decision on it. Similarly, the administration, the President has ignored the National Security Act of 1947 which explicitly states that the executive branch must give notice to the intelligence committees of the House and Senate where programs are carried out like the terrorist surveillance program. The President did not follow that statute. Again, the underlying contention is that he has power under article II so that he doesn't have to follow the statute. Finally, he did make those matters available. He did so on the eve of the confirmation of General Hayden as head of the Central Intelligence Agency. So finally, under political pressure--he couldn't get General Hayden confirmed unless he made them available--he did so. We have had other illustrations. We have had the signing statements where the President issues a statement when he signs legislation into law which modifies what Congress has passed. I will be very specific. The Constitution provides that each House passes legislation. There is a conference submitted to the President. He either signs it or vetoes it. But when the President got the PATRIOT Act re-authorization with provisions which had been negotiated as to Judiciary Committee oversight on how those law enforcement powers could be carried out, the President issued a signing statement--and this had been negotiated between the Judiciary Committee and the President's employees--the President issued a signing statement and changed the thrust of the statute. In a widely publicized matter involving interrogation techniques, the Senate passed, on a 90-to-9 vote, limitations on Executive power in the Detainee Treatment Act. There was a meeting between President Bush and Senator McCain, author of the provision, limiting executive authority. We passed the bill, and the President signed it but with reservation that his executive authority under article II did not deprive him of authority to handle the situation as he chose. But in the midst of all this, the courts have been effective. The courts have limited Executive power. In the case of Hamdan v. Rumsfeld, the Supreme Court held that the President's military commissions violated the Uniform Code of Military Justice and lacked any congressional authorization. In short, the Court held the President cannot establish a military commission to try Hamdan unless Congress granted him the authority to do so. In Hamdi v. Rumsfeld, the Supreme Court said that due process requires a citizen held as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. In the celebrated case of Rasul v. Bush, the Supreme Court held that the Federal habeas corpus statute gave district courts jurisdiction to hear challenges by aliens held at Guantanamo Bay. In Doe v. Gonzales in September of last year, the U.S. District Court for the Southern District of New York struck down the permanent gag orders issued with national security letters as a violation of the First Amendment. In Hepting v. AT&T, Chief Judge Vaughn Walker of the Northern District of California held that the publicly available information concerning the terrorist surveillance program was not subject to the state secrets defense. In the very heavily publicized case of Padilla, the fourth circuit initially held that the executive had the authority to hold Padilla as an enemy combatant in September of 2005. Then when Padilla petitioned the Supreme Court for certiorari, it looked as if that might be overturned. The Government moved for authorization to transfer Padilla and to vacate the decision. They anticipated an unfavorable decision and they tried to moot it out; that is, render it meaningless. Judge Luttig, writing for the fourth circuit, was very strong in rejecting the Government's position, saying this: Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court-- That is, the Supreme Court-- we deny both the motion and the suggestion. Pretty strong language, telling the Government what they can and what they can't do. The Government is not going to listen to the Congress, but the Government listens to the court. When the issue arose as to the destruction of the CIA tapes, Senator Leahy and I wrote the Attorney General asking for information as to what had happened, and the Attorney General wrote back and said: We are not going to give you any information at this time. But we got no information. Then the word was that it was political, what was being done. Then a Federal district court ordered the Government to file a report with the court as to what had happened on the destruction of the CIA tapes. Well, nobody said the court decision was political. You can't challenge the judicial decision except to take an appeal, and that is the process we follow. I recently made a trip to Pakistan. Congressman Patrick Kennedy and I went to Pakistan to take a look at what was going on there because Pakistan is so important. The country has nuclear weapons but a very unstable government. We met with President Musharraf. We were scheduled to meet with Benazir Bhutto at 9 p.m. on December 27. While we were preparing for the meeting--she had scheduled it at 9 o'clock in the evening because she had a full day of campaign activities. While we were preparing for the meeting, we found out about 6:30, 7 o'clock, she had been assassinated, which was a terrible blow, not only on a personal level. I had come to know her to some extent when she was Prime Minister of Pakistan. But she had the potential as an extraordinary political figure to unify Pakistan. She had a remarkable educational background. She was educated at Harvard, also at Oxford; very glamorous, movie star beautiful, a great political figure with a chance to unify the country. Now we start from scratch. Congressman Kennedy and I questioned President Musharraf about what he was doing. He had gotten $10 million since 9/11 to act against al- Qaida. Why hadn't Osama bin Laden been captured? There were a lot of indications that the money was not being used for the purpose for which it was appropriated. President Musharraf said to Congressman Kennedy and me that he didn't like the conditionality, and we pointed out to him that is the way we function. We don't give $10 million for use by President Musharraf any way he likes. Then we raised a question about what President Musharraf was doing with the Supreme Court. He held the Chief Justice in house arrest. He dismissed many of the justices. He appointed a favorable Supreme Court. Well, the United States is not Pakistan. In Pakistan, the chief executive, President Musharraf, tells the Supreme Court what to do. He suspends the Chief Justice. He fires half of the court. In the United States, under our checks and balances, the President of the United States listens to what the Supreme Court of the United States says. A fundamental of our society is the separation of powers. That is the very basis of how we function in the United States, with the executive having certain powers, the Congress having certain powers, and the Court having certain powers. Regrettably, the evidence is conclusive that the Congress has been ineffective in congressional oversight. The protocol is the chairman of the Judiciary Committee and the ranking member are told about what is happening on serious constitutional issues. I was chairman of the Judiciary Committee when the terrorist surveillance program was in operation, and neither the ranking member, Senator Leahy, nor I, were told about what was going on. The President is taking the position that he is not bound by statute, and he may be right. He may be right, but in our society, the courts have to make that decision. I believe it would be a serious step to close down the courts where some 40 cases are pending. Let them go through the judicial process. Now if we had a choice of having the benefit of what the telephone companies are doing and closing down the courts, that might be one thing. But Senator Whitehouse and I have structured an amendment, cosponsored by other Senators, to have both of those benefits operative. We can maintain the telephone companies providing whatever information they are providing, and at the same time keep the courts open by substituting the Government as the party defendant. We are continuing in the midst of an historic confrontation. It is testing the mettle of our constitutional process. It is testing the mettle of our constitutional process because of the importance of being vigorous in fighting al-Qaida. The telephone companies have been good citizens and they ought not to be held liable for whatever it is they have done. But the Government can step in, and if there are verdicts which, as I say, I very much doubt, it is a cost of national defense. It ought to be paid by the Treasury of the United States, and the courts ought to be kept open. Senator Dodd is about to address the Chamber. I know he is opposed to granting retroactive immunity, and he has a very powerful argument, and may the Record show he is nodding in the affirmative. That is what we lawyers do when we have a little support, even if it is only a nod of the head or a gesture. I greatly admire what Senator Dodd is doing here and what he has done since he was elected to the Senate in 1980. He and Senator Alan Dixon came to the Senate at the same time as two newly elected Senators on the Democratic side of the aisle. They were outnumbered by Republican Senators who were elected, 16 of us for that election, 16 to 2. But now Senator Dodd has narrowed the odds and only Senator Grassley and I remain of those 16, so it is only 2 to 1. Of course, when it was 2 to 16 it was a fair fight, and when it is 1 to 2, Senator Dodd may have the advantage. Who knows. I say that only in jest. But we are about to hear some strong arguments and some real oratory on these issues. But we don't have to make a choice between having the information and having the courts open. You can do both if the amendment which Senator Whitehouse and I have offered is adopted. I thank the Chair and yield the floor and defer to my distinguished colleague from Connecticut.

Mr. SPECTER

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

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

Mr. SPECTER. Madam President, I now call up amendment No. 3927.

Mr. SPECTER. Madam President, there are 2 hours set aside for this amendment. We have about 24 minutes between now and 4:30, when the Senate will move on to other business. I have just discussed with my distinguished colleague, Senator Whitehouse, and the managers--Chairman Rockefeller and Vice Chairman Bond--my intent to speak relatively briefly on an opening statement and then yield to Senator Whitehouse and give an opportunity for opponents of the amendment to speak because I think that will tell the Senators and staffs what this is about and perhaps generate more interest and more concern to follow, and then have additional debate at a later time on the remainder of our time. At the outset, I compliment my distinguished colleague, Senator Whitehouse, who is in his first term in the Senate. I thank him for the work he has done coordinately with me and others on this bill. Senator Whitehouse brings a very distinguished record to the U.S. Congress. He has served as U.S. attorney for Rhode Island. He served as Rhode Island's attorney general. And he has made quite a contribution to the Judiciary Committee on what is a very complex matter. Madam President, I ask unanimous consent that Senator Levin and Senator Cardin be added as cosponsors of the amendment.

Mr. SPECTER. The essence of the pending amendment is to substitute the U.S. Government as a party defendant for the telephone companies, instead of having the current provision which provides for retroactive immunity to the telephone companies. The bill under consideration would give those companies retroactive immunity and foreclose litigation which is now pending in some 40 cases. This issue is at the heart of the balance of values between national security and constitutional rights. There is no doubt, at least on this state of the record--where we do not know all of the details as to what the telephone companies have been doing--but it is presumed, for purposes of this argument, and I think accurately so, that what the telephone companies are doing has produced very high-level intelligence for the U.S. Government. There is no doubt of the importance of high-level intelligence in our fight against terrorism. We sustained 9/11. We fight a deadly enemy around the world--al-Qaida. We want to protect the United States and its people and others, so that high-level intelligence is very important. At the same time, constitutional rights are very important. I believe the substitution which Senator Whitehouse and I are proposing accomplishes the objective of a continuation of getting this very vital intelligence information for national security and, at the same time, protects constitutional rights. The essence of the proposal is that the U.S. Government would step into the shoes of the telephone companies, have the same defenses, no more and no less. The Government could not assert governmental immunity because the telephone companies could not assert governmental immunity. The Government could assert the State Secrets Doctrine, just as the it has by intervening in the cases against the telephone companies. I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance. But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President. I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority. But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure--really to get the confirmation of General Hayden as CIA Director--before the executive branch finally complied with the statute to notify the full Intelligence Committees. Now, on the other hand, the courts have been effective--and I will amplify this at a later time because I want to yield soon to Senator Whitehouse and give the opponents an opportunity to speak before 4:30. But in the Hamdan case, the Supreme Court held that the President does not have a blank check in the war on terror. Justices held that the President cannot establish military commissions unless Congress authorizes it. In Hamdi, the Supreme Court concluded due process required that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that contention. In Rasul v. Bush, the Supreme Court held that the Federal habeas corpus statute gave district courts jurisdiction to hear challenges by aliens held at Guantanamo Bay. Well, this is not Pakistan, where President Musharraf can suspend the Supreme Court Justices and hold the Chief Justice under House arrest. This is America. The balance is maintained only because the courts are open. I believe it would be a major mistake to close the courts on pending litigation when the courts have provided the only effective way to check expanded executive authority, which we have seen in many lives. I will amplify those later, on matters such as signing statements. But that is the essence of the argument. I am going to yield now to my distinguished colleague from Rhode Island because I think it is useful, as we move forward in the debate, to crystallize the issues. We know Senators and even staff don't pay a great deal of attention until the time for a vote is near, and when we see the essence of the two positions, I think we may create some more interest and have more people join this debate. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the managers of the bill for the time. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise to introduce legislation which would modify the limitations on churches showing the Super Bowl under the NFL copyright franchise. Churches across the country were notified by the NFL not to show the Super Bowl on a big screen because it infringed their copyright. There is an exception under the copyright laws for bars. It is anomalous that you can go to a bar and see the Super Bowl, but you cannot go to a church for a social gathering and do the same. This legislation will correct that. Mr. President, I ask unanimous consent that my full statement be printed in the Record.

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, at the outset, I compliment my distinguished colleague from Pennsylvania, Senator Casey, and congratulate him for his initiative in organizing the tribute to Judge Higginbotham. Later this afternoon, there will be a symposium on the legacy of Judge Higginbotham with very distinguished scholars: Dr. John Hope Franklin, Dr. and Professor Charles Ogletree, and the Honorable Eleanor Holmes Norton, who was Judge Higginbotham's first law clerk. Judge Higginbotham's record has been appropriately described by Senator Casey. I know the managers are interested to move ahead, so I ask unanimous consent that the full text of my statement be printed in the Record, along with an article published, which I wrote, in the Philadelphia Tribune on January 27 of this year.

Mr. SPECTER. Just a few personal comments. Mr. President, I knew Judge Higginbotham and am honored and proud to have called him a personal friend. He graduated from Yale Law School a little ahead of me. He found it very difficult to get a job because of racial prejudice, which was present in Philadelphia at the time in the early 1950s. It was the same era when William T. Coleman, Jr.--who had been a law clerk to Justice Felix Frankfurter and later was Secretary of Transportation in the Ford administration--could not find a job and had to travel to New York City to find a job. Leon Higginbotham clerked for a very distinguished common pleas judge, Curtis Bok--really an outstanding scholar and later a Pennsylvania Supreme Court justice. He found a job with the district attorney, a very distinguished district attorney, Richardson Dilworth, who later became mayor of Philadelphia. Judge Higginbotham then was a founding partner of an African-American law firm: Norris, Schmidt, Green, Harris & Higginbotham. That is what had to be done in those days to find a job and develop a law practice if you were an African-American in the city of Philadelphia--really across our country. Senator Casey has referred to the indignity Judge Higginbotham had as a student at Purdue, when he was excluded from living in a heated dormitory because it was not required by the law. He was a noted scholar, an author, and wrote the books ``In the Matter of Color'' and ``Shades of Freedom.'' In my prepared text, I comment about compliments paid to Judge Higginbotham by Nelson Mandela, Jesse Jackson, and Rosa Parks. This is a good occasion--Black History Month--to pause for a few moments to pay tribute to a great American and a great jurist, a member of the Federal Trade Commission, a Federal judge at 35, and later chief judge of the United States Court of Appeals for the Third Circuit.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise to introduce legislation which would modify the limitations on churches showing the Super Bowl under the NFL copyright franchise. Churches across the country were notified by the NFL not to show the Super Bowl on a big screen because it infringed their copyright. There is an exception under the copyright laws for bars. It is anomalous that you can go to a bar and see the Super Bowl, but you cannot go to a church for a social gathering and do the same. This legislation will correct that. Mr. President, I ask unanimous consent that my full statement be printed in the Record.

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

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