Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to give my reasons for supporting the Senate passage of H.R. 2419, The Farm, Nutrition, and Bioenergy Act of 2007, also known as the 2007 farm bill. I am voting for it notwithstanding the subsidies that have grown since the Agricultural Adjustment Act of 1933, and I believe moving toward a free market for agriculture is highly desirable. Many constituents in my home State of Pennsylvania have contacted me to express support for final passage of the 5-year 2007 farm bill as soon as possible. Agriculture is Pennsylvania's No. 1 industry, contributing about $45 billion to the economy through production, food processing, marketing, transportation and manufacturing. Since taking office in 1981, I have fought hard for agriculture and nutrition programs. The many provisions in the bill that are beneficial to Pennsylvania include the Milk Income Loss Contract program for our dairy producers, increased funding for specialty crops, increased funding for nutrition programs, and increased funding for conservation programs. While other regions have received more money in previous farm bills through subsidy programs for cotton, rice, wheat, soybean, and corn, this farm bill directs more money to agriculture products in Pennsylvania than previous farm bills. The MILC program provides countercyclical payments to our dairy producers when the price of milk falls below a set trigger price. Since its inception in the 2002 farm bill, it has provided more than $220 million to our Pennsylvania dairy farmers. Although I worked hard to ensure that any dairy provisions addressed costs of production, there was resistance from Senators from other regions in the United States. The bill also requires mandatory price reporting of sales transactions of dairy commodities and calls for a study of collapsing the dairy class system and a study of advance pricing. These provisions will help create an open, transparent dairy market benefiting dairy farmers and consumers. Pennsylvania's specialty crop producers that include mushrooms, apples, freestone peaches, and grapes will get the assistance they need to market their products. The bill provides about $2.2 billion in research and marketing programs funding. This is the most ever set aside in a farm bill to assist these farmers who are left out of traditional Federal farm programs. The bill includes about $197.5 billion for nutrition programs, as compared to about $178.158 billion in the previous 2002 farm bill. The bill also includes $1 billion to expand the Fresh Fruit and Vegetable Program, FFVP, nationwide over 5 years to reach nearly 4.5 million low- income children. FFVP allows schools to offer and promote free fresh fruits and vegetables during the day. Finally, the bill includes increased money for conservation programs to help farmers use environmentally friendly farming practices. There is about $22 billion for conservation programs, which is about $5 billion more than the 2002 farm bill. More specifically, the bill has $165 million for conservation programs in the Chesapeake Bay watershed, which includes large sections of Pennsylvania. Taken together, these important programs benefit Pennsylvania. Therefore, I support this farm bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to give my reasons for my vote against invoking cloture on H.R. 6, the Energy Independence and Security Act of 2007 which was sent to the Senate from the House of Representatives on December 6, 2007. It is regrettable that certain tactics and maneuvers prevented a formal conference and there was no accommodation for removal of controversial tax provisions which further complicated the negotiations. I am voting against cloture on energy bill, although I support many of the bill's provisions, because key commitments to at least one of my Republican colleagues were reportedly broken. Further, I understand the bill in its present form would likely draw a veto from the President. I would have preferred a conference report which did not include taxes on the oil and gas industries. Had there been a formal conference, those taxes might well have been left out of the conference report. It has been reported that the oil and gas industries took steps to oppose convening a conference. If so, they bear some responsibility for the inclusion of the taxes which might have been eliminated had there been a conference. This past summer, I supported the Senate-passed Energy bill, H.R. 6, which would have promoted oil savings by increasing our national average vehicle fuel economy; alleviated dependence on imported oil by increasing requirements for the use of biofuels and advanced biofuels; advanced the prospects for cleanly utilizing our Nation's abundant coal reserves by furthering research, development and demonstration of carbon capture and sequestration technology; and supported a reduction in our demand for energy by creating new efficiency benchmarks for appliances and authorizing research and development grants for more efficient building materials, processes and vehicle technology. Furthermore, though the Senate did not include a minimum requirement for the amount of electricity generated by renewable sources, I support such a measure as I have done in the past. On June 14, 2007, the Senate voted 56-39 to table an amendment that would have replaced a 15 percent by 2020 renewable energy standard with 20 percent by 2020 using alternative sources including coal and nuclear energy. This amendment was viewed as undermining a ``renewable'' standard, therefore I opposed the amendment. I am proud that Pennsylvania is leading the way in renewable energy use and development through its Advanced Energy Portfolio Standard which requires that 18 percent of electricity in the Commonwealth be generated from clean and renewable sources by 2020. While it would have been preferable for the House and Senate to have been able to work in a bicameral, bipartisan manner to produce legislation that includes both stronger automobile efficiency and a renewable portfolio standard, that clearly did not happen in this instance. Therefore, I face a choice between procedural matters I dislike and policies I support. Many of my colleagues and I will oppose this bill based on the process used by the majority and the inclusion of controversial tax offset provisions. Had there been an opportunity for the two Houses and the two parties to come together, as is the common practice in Congress, to craft this important legislation governing our Nation's energy production and use, I am confident we could have come to consensus on these issues and I still believe this to be the case. This Nation has many challenges meeting today's energy needs, with the price of oil at $100 per barrel, OPEC manipulating the oil markets, and concerns related to the environment including climate change, all of which will be directly addressed by this bill's provisions. Too often in this Congress, we are faced with questionable procedures which have led to this situation of rancor and breakdown of the bicameral process. I urge the leaders of both parties and chambers to work together to improve this regrettable legislative environment and produce a bipartisan Energy bill. Considering the current veto threat over the bill, it is my hope that after this difficult vote we can amicably move forward to work with our colleagues in the House of Representatives and the President to enact these policy measures which are important for the energy future of the United States. As I stated in my introduction, I am troubled by reports from a Republican colleague that the legislation sent over by the House breached key commitments. It is difficult to know exactly what commitments were made, which were kept, and which may have been broken in multiple conversations with many parties. Therefore, in the interest of comity and improving the legislative process, I feel constrained to cast my vote against moving to this Energy bill, despite provisions I support.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on an amendment to the farm bill that I have cosponsored which will provide needed tax relief to homeowners facing foreclosure as a result of the sub-prime mortgage crisis. The Gregg amendment No. 3674, will allow foreclosed homeowners to avoid the additional hardship of being taxed on cancelled debt income. Under current law, if a homeowner has an obligation to a bank of $150,000 and the home is foreclosed on and sold for $100,000, the $50,000 difference is treated as personal income and the IRS sends that individual a tax bill. With the rate of foreclosures and mortgage defaults rising to new levels, now is not the time for the Federal Government to be kicking homeowners when they are down. In addition, as some lenders are renegotiating loans with borrowers to keep them in their home, the exclusion of cancelled mortgage debt income is a necessary step to ensure that homeowner retention efforts are not thwarted by tax policy. This amendment provides a targeted exclusion from taxation for canceled mortgage debt for those individuals most in need of assistance. It covers discharges of indebtedness between January 1, 2007, and January 1, 2010. In addition, the amendment would only apply if the home facing foreclosure is the taxpayer's principal residence and the exclusion is only available on mortgage indebtedness of up to $1 million. On a related note, I have introduced S. 2133, the Home Owners ``Mortgage and Equity Savings Act,'' to help distressed homeowners who file for bankruptcy. The amount of a debt forgiven or discharged in bankruptcy is not deemed income. This amendment is important companion legislation in that it would help those who are able to renegotiate their mortgages, or who face foreclosure, but do not go into bankruptcy. I urge my colleagues to support the Gregg amendment.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce legislation, together with Senator Leahy, to enact Federal Rule of Evidence 502. Federal Rule of Evidence 502, which was drafted and proposed to Congress by the Judicial Conference of the United States, is a rule to provide heightened protection against inadvertent loss of the attorney- client privilege during the discovery process. At a time when litigation costs are skyrocketing and discovery alone can last for years, this rule is urgently needed. And unlike other Federal rules of procedure, which go into effect unless Congress acts, rules governing evidentiary privilege must be enacted by Congress. Current law on attorney-client privilege and work product is responsible in large part for the rising costs of discovery--especially electronic discovery. Right now, it is far too easy to inadvertently lose--or ``waive''--the privilege. A single inadvertently disclosed document can result in waiving the privilege not only as to what was produced, but as to all documents on the same subject matter. In some courts, a waiver may be found even if the producing party took reasonable steps to avoid disclosure. Such waivers will not just affect the case in which the accidental disclosure is made, but will also impact other cases filed subsequently in State or Federal courts. Thus, lawyers must spend significant amounts of time ensuring that documents containing privileged communications and work product are not inadvertently produced. In this day and age when there can be literally millions of electronic files to comb through looking for privileged material, the risk of one slipping through the cracks is very high. The fear of waiver leads to undue expense and to extravagant claims of privilege. The proposed rule will alleviate these burdens in two primary ways: First, it protects against undue forfeiture of attorney-client privilege and work product protections when privileged communications are inadvertently produced in discovery--where the party producing the documents took reasonable steps to prevent the disclosure and does not try to use the disclosed information in a misleading way. Second, it permits parties and courts to protect against the consequences of waiver by permitting limited disclosure of privileged information between the parties to litigation. This allows parties and courts to manage the effects of disclosure and provide predictability in current and future litigation. The proposed rule enjoys wide support from parties on both sides of the ``v.'' Both plaintiffs and defendants want this rule because it makes the litigation more efficient and less costly; it ensures that the wheels of justice will not become bogged down in the mud of discovery. The Judicial Conference, which is the body responsible for proposing new procedural rules, has undertaken an extensive process in crafting this rule over the last year and a half. The rule was approved by the Judicial Conference's Advisory Committee on Evidence Rules, the Standing Committee on Rules of Practice and Procedure, and the Judicial Conference itself, after a public comment period that included several hearings with supportive comments and testimony from bench and bar. There were more than 70 public comments, and more than 20 witnesses testified. The time is ripe to move forward and enact this proposed rule into law. Therefore, I have worked with Senator Leahy to bring this bill to the floor in a timely and bipartisan fashion. This rule is necessary to protect the attorney-client privilege, to bring clarity to the law, and to ensure fairness for all parties. And every day we wait wastes the time and resources of litigants and the courts. I urge my colleagues to join with Senator Leahy and me in supporting this bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce legislation, together with Senator Leahy, to enact Federal Rule of Evidence 502. Federal Rule of Evidence 502, which was drafted and proposed to Congress by the Judicial Conference of the United States, is a rule to provide heightened protection against inadvertent loss of the attorney- client privilege during the discovery process. At a time when litigation costs are skyrocketing and discovery alone can last for years, this rule is urgently needed. And unlike other Federal rules of procedure, which go into effect unless Congress acts, rules governing evidentiary privilege must be enacted by Congress. Current law on attorney-client privilege and work product is responsible in large part for the rising costs of discovery--especially electronic discovery. Right now, it is far too easy to inadvertently lose--or ``waive''--the privilege. A single inadvertently disclosed document can result in waiving the privilege not only as to what was produced, but as to all documents on the same subject matter. In some courts, a waiver may be found even if the producing party took reasonable steps to avoid disclosure. Such waivers will not just affect the case in which the accidental disclosure is made, but will also impact other cases filed subsequently in State or Federal courts. Thus, lawyers must spend significant amounts of time ensuring that documents containing privileged communications and work product are not inadvertently produced. In this day and age when there can be literally millions of electronic files to comb through looking for privileged material, the risk of one slipping through the cracks is very high. The fear of waiver leads to undue expense and to extravagant claims of privilege. The proposed rule will alleviate these burdens in two primary ways: First, it protects against undue forfeiture of attorney-client privilege and work product protections when privileged communications are inadvertently produced in discovery--where the party producing the documents took reasonable steps to prevent the disclosure and does not try to use the disclosed information in a misleading way. Second, it permits parties and courts to protect against the consequences of waiver by permitting limited disclosure of privileged information between the parties to litigation. This allows parties and courts to manage the effects of disclosure and provide predictability in current and future litigation. The proposed rule enjoys wide support from parties on both sides of the ``v.'' Both plaintiffs and defendants want this rule because it makes the litigation more efficient and less costly; it ensures that the wheels of justice will not become bogged down in the mud of discovery. The Judicial Conference, which is the body responsible for proposing new procedural rules, has undertaken an extensive process in crafting this rule over the last year and a half. The rule was approved by the Judicial Conference's Advisory Committee on Evidence Rules, the Standing Committee on Rules of Practice and Procedure, and the Judicial Conference itself, after a public comment period that included several hearings with supportive comments and testimony from bench and bar. There were more than 70 public comments, and more than 20 witnesses testified. The time is ripe to move forward and enact this proposed rule into law. Therefore, I have worked with Senator Leahy to bring this bill to the floor in a timely and bipartisan fashion. This rule is necessary to protect the attorney-client privilege, to bring clarity to the law, and to ensure fairness for all parties. And every day we wait wastes the time and resources of litigants and the courts. I urge my colleagues to join with Senator Leahy and me in supporting this bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of the Republican leadership, I object.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment about a statement made by the majority leader, Senator Harry Reid, yesterday that: . . . President Bush, he is the man who is pulling the strings on the 49 puppets he has here in the Senate. I have had my staff advise his staff that I intended to make some comments about that so he would be notified and could come to the floor if he chose to do so. His office is right adjacent to the floor. He is a minute or 2 away. I believe that is a very inappropriate statement. I refer to rule XIX of the Senate rules, which provides: . . . No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator. It is my view that being called a puppet is in direct violation of that rule. I don't think there is much doubt about it. That is a term of derision, of ridicule, of censure, and it is an opprobrious term to make that statement. I am especially concerned about it because in the immediate past there have been many Senators who have directly disagreed with the President--hardly puppets of President Bush or hardly puppets of anyone. Under our Constitution, the separation of powers makes the Congress separate from the executive branch and from the courts. That separation and that independence is something that Senators prize so very highly. So I don't take it lightly, and I don't think the other 48 of my colleagues take it lightly to be called puppets. Let's look at the record. Within the past month, on November 8, 35 Republicans voted to override President Bush's veto of the Water Resources and Development Act. The veto was overridden; 35 disagreed with the President. It hardly sounds like there are 35 puppets there to vote to override the President's veto. On April 11, 18 Republicans joined in support of the Stem Cell Enhancement Act of 2007. That is an issue that this Senator has worked on extensively since 1998, when stem cells first came upon the scene, and I was chairing the Appropriations Subcommittee on Health and Human Services. We have had some 20 hearings. Twice we enacted legislation to authorize the use of Federal funds for embryonic stem cell research. It doesn't sound like the 18 Senators who bucked the President's position are puppets. On November 13, less than a month ago, 17 Republican Senators voted to support the SCHIP program, which the President was on record as opposing. He didn't like the amount of money that was involved with children's health. On November 7, 10 Republican Senators voted in support of passage of the Labor, Health, Human Services and Education Appropriations bill, despite the President's promised veto. He did veto it. So here you have 4 situations readily at hand, where 35, 18, 17, and 10 Republican Senators disagreed with the President. It doesn't sound like the Senators are puppets in that context. Yesterday Senator Reid also complained about the necessity to file cloture some 56 times. Well, each time cloture was filed, there is a complex story behind the cloture. On a good many of those occasions, cloture was filed and the so-called tree was filled, which precluded Senators from offering amendments. There was a time when Senators proudly said that any Senator could offer any amendment on any bill at any time. There might be some limitations postcloture on germaneness or on some rules, but a practice has developed in this body to foreclose that. The jargon is the ``filling the tree,'' and when the tree is filled, nobody can offer an amendment. Regrettably, that has been done by Republicans as well as Democrats. When it is hard to affix blame around here for the logjam, for our inability to get much done, you can usually divide it 50/50 between the parties. So to say Senator Reid has had to file cloture on 56 occasions doesn't tell you very much. Then the issue he took up yesterday in filing for cloture on the AMT, alternative minimum tax, Senator Reid filed for cloture on the House bill, which stands very little chance of passing the Senate because it is fully offset with controversial revenue raisers. Now it is true that Senate Democrats offered to remove the offsets but to keep them in place for the tax extenders. The Republican position has been that it is illogical to use permanent tax increases to offset a temporary extension of current tax policy. So there is a good reason for what is being done here. There is no doubt the AMT has to have a fix. If it is not done, there will be some 23 million Americans who will be taxed instead of the 3 million now. So we are all dedicated to that proposition. If you take a look at the Record on August 2 of this year, I offered an amendment to the small business tax relief bill to repeal the 1993 AMT rate increase. On July 20, 2007, I voted in support of a Kyl amendment to the educational reconciliation bill, which fully repealed the AMT. On March 23 of this year, I voted in support of a Lott amendment to the budget resolution that would have allowed for repeal of the 1993 AMT rate increase. Again, on the same day, March 23, I voted in support of a Grassley amendment to the budget resolution that would have allowed the full repeal of the AMT. The same day, I voted in support of the Sessions amendment to the budget resolution that would have allowed families to deduct personal exemptions when calculating their AMT liability. The Record is full of good-faith efforts to solve this problem. But as indicated, as stated, the course which the majority leader has taken is unsatisfactory to people on this side of the aisle. Whether it is satisfactory or unsatisfactory, it is not appropriate to call 49 Republican Senators puppets. We are trying to move through the business of the year--the people's business. We have 2\1/2\ weeks. Not a whole lot has been done. We were in on Monday; no votes. In yesterday; one noncontroversial vote. We didn't come in until noon today. I have been around here a substantial period of time and I wonder how we are going to get through all of the unfinished appropriations bills and the many other matters that are pending on the calendar. When the majority leader makes a proposal and asks for Republican assistance, many of us have been willing to listen to what he has to say. But he doesn't improve his case when he starts calling us puppets. I wonder if he is up to the job when he resorts to that kind of a statement, which only furthers the level of rancor and insults and animosity with that kind of an insulting comment. I would be interested in the majority leader's reply, if he cares to make one. I will be near by the Senate floor. I yield the floor and suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce The Foreign Intelligence Surveillance Substitution Act of 2007, to substitute the Federal Government for the telephone companies in litigation challenging the so-called Terrorist Surveillance Program. This is a very complex issue, and I have been discussing it at length with my colleagues on the Judiciary Committee. It does raise some very important questions, and I begin my analysis by acknowledging the good citizenship of the telephone companies for whatever it is that they have done. We still don't know all of what that is. But I do not believe that it is appropriate to grant what is called ``retroactive immunity'' because of what has occurred here. The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S. In order for substitution to apply, the electronic communications service provider must have received a written request from the Attorney General or the head of an element of the intelligence community indicating that the activity was authorized by the President and determined to be lawful. If the provider assisted the Government beyond what was requested in writing, this legislation will leave the provider on the hook for any surplus assistance. On the other hand, the Government will be substituted if the Attorney General certifies that the electronic communications service provider did only what the Government asked. Once substitution occurs, Federal and State courts are directed to dismiss the providers from the action. This legislation provides that plaintiffs in these cases may continue to send third-party discovery requests such as Rule 45 subpoenas to the electronic communications service providers after they have been dismissed. Moreover, the bill provides that plaintiffs may also deem provider admissions as Government admissions in their case against the Government. My legislation provides that the Government will not have sovereign immunity in the 40 or so cases currently pending in the California Multi-District Litigation. This bill provides authority for the U.S. to remove actions from State court to Federal court. Notably, the legislation is intended to ensure that the Government can only assert those defenses the electronic communications companies may assert under current law. On the other hand, nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege. The legislation is carefully crafted so as not to disturb plaintiffs' standing to bring their claims against the Government. Now, recognizing the telephone companies are good citizens, I am prepared to see their involvement held to the minimum. We hear concerns about them being involved in litigation. Well, I don't know if there's much litigation for them to be involved in once the Federal Government is substituted. Some express dismay over the continued burden of discovery. I am not convinced there will be much further discovery here. Some have expressed a reticence to having their service technicians, in-house counsel, and other employees called as witnesses. Yet, I don't know that they are necessarily going to be witnesses. We can't judge that now. I believe there are very important--perhaps even constitutional-- privacy issues here that ought to be subjected to judicial review. We know that important litigation in the Federal court in San Francisco, Judge Walker has declined to dismiss a challenge to the Terrorist Surveillance Program on State secrets grounds. I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable. The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations. I strongly encourage all of my colleagues, Republicans and Democrats alike, to carefully consider this bill as we begin to debate the related FISA Amendments Act of 2007.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce The Foreign Intelligence Surveillance Substitution Act of 2007, to substitute the Federal Government for the telephone companies in litigation challenging the so-called Terrorist Surveillance Program. This is a very complex issue, and I have been discussing it at length with my colleagues on the Judiciary Committee. It does raise some very important questions, and I begin my analysis by acknowledging the good citizenship of the telephone companies for whatever it is that they have done. We still don't know all of what that is. But I do not believe that it is appropriate to grant what is called ``retroactive immunity'' because of what has occurred here. The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S. In order for substitution to apply, the electronic communications service provider must have received a written request from the Attorney General or the head of an element of the intelligence community indicating that the activity was authorized by the President and determined to be lawful. If the provider assisted the Government beyond what was requested in writing, this legislation will leave the provider on the hook for any surplus assistance. On the other hand, the Government will be substituted if the Attorney General certifies that the electronic communications service provider did only what the Government asked. Once substitution occurs, Federal and State courts are directed to dismiss the providers from the action. This legislation provides that plaintiffs in these cases may continue to send third-party discovery requests such as Rule 45 subpoenas to the electronic communications service providers after they have been dismissed. Moreover, the bill provides that plaintiffs may also deem provider admissions as Government admissions in their case against the Government. My legislation provides that the Government will not have sovereign immunity in the 40 or so cases currently pending in the California Multi-District Litigation. This bill provides authority for the U.S. to remove actions from State court to Federal court. Notably, the legislation is intended to ensure that the Government can only assert those defenses the electronic communications companies may assert under current law. On the other hand, nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege. The legislation is carefully crafted so as not to disturb plaintiffs' standing to bring their claims against the Government. Now, recognizing the telephone companies are good citizens, I am prepared to see their involvement held to the minimum. We hear concerns about them being involved in litigation. Well, I don't know if there's much litigation for them to be involved in once the Federal Government is substituted. Some express dismay over the continued burden of discovery. I am not convinced there will be much further discovery here. Some have expressed a reticence to having their service technicians, in-house counsel, and other employees called as witnesses. Yet, I don't know that they are necessarily going to be witnesses. We can't judge that now. I believe there are very important--perhaps even constitutional-- privacy issues here that ought to be subjected to judicial review. We know that important litigation in the Federal court in San Francisco, Judge Walker has declined to dismiss a challenge to the Terrorist Surveillance Program on State secrets grounds. I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable. The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations. I strongly encourage all of my colleagues, Republicans and Democrats alike, to carefully consider this bill as we begin to debate the related FISA Amendments Act of 2007.

Mr. SPECTER

Mr. SPECTER. Mr. President, before yielding 15 minutes to the Senator from New York, I would like to note to my colleagues we have Senator Graham listed with a request for a short period of time, and the only request pending for those in support of Judge Mukasey, so unless other Senators come to the floor, at least on our side, we may be nearing the end of debate. I think it is appropriate to put all Senators on notice that we could be voting perhaps shortly after 10 or the 10:30 range. I yield 15 minutes, as I said, to Senator Schumer.

Mr. SPECTER. The Senator may.

Mr. SPECTER. Mr. President, how much time is left on each side?

Mr. SPECTER. Mr. President, I know of only one additional Senator who wishes to speak in favor of Judge Mukasey, and that request has been limited to 5 minutes. So I ask him to come to the floor or anyone else who wishes to speak on behalf of Judge Mukasey to come to the floor. If I may consult with my colleague, the distinguished chairman, perhaps we can take an inventory now as to how much time the other speakers will want so we can give our colleagues an idea as to when we will be voting.

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

Mr. SPECTER. Mr. President, I ask the Senator from Connecticut how much time he would like.

Mr. SPECTER. I yield 5 minutes to Senator Lieberman, then Senator McConnell, the Republican leader, will speak.

Mr. SPECTER. I thank the Chair, thank the Senator from New Jersey, and pardon the interruption.

Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished Senator from Alabama, Mr. Sessions.

Mr. SPECTER. What is the request pending?

Mr. SPECTER. Granted.

Mr. SPECTER. I said in the letter, as the record will show, if Judge Mukasey had any difference with my statement, he should let me know promptly. I know it was received by White House personnel, and we communicated, staff to staff, about it, and that is a binding commitment. That commitment, in conjunction with Judge Mukasey's response to my questioning--I asked him if the President of the United States ignored his advice as Attorney General if and when confirmed on a matter of serious import, would Judge Mukasey resign as Attorney General, just as Attorney General Elliot Richardson had resigned on the Saturday Night Massacre when efforts were made to stop the investigation of President Nixon at that time, and Judge Mukasey said he would resign. So, I think we have a very solid record. Now, I do believe there were reasons Judge Mukasey did not express a judgment on waterboarding as being torture, although candidly it would have been my preference if he had done so and if he had agreed with my vote on the subject. But, Judge Mukasey said in written responses that he believed he could not make that pronouncement without placing people at risk to be sued or perhaps even criminally prosecuted. A few weeks ago, former Secretary of Defense Rumsfeld was in Paris at a time when people sought legal process against him. It was unclear whether it was a criminal procedure or a civil procedure, but we do know that many nations are exercising extraterritorial jurisdiction when they may consider conduct to be a violation of the law against humanity. We know, for example, that Israeli Prime Minister Sharon was indicted, I believe it was in Belgium. They couldn't serve the warrant, but had he gone to Belgium. He would have been subject to that process. We know the case of Pinochet from Chile where extraterritorial jurisdiction was sought as to him. So this is a matter of some considerable import. Professor Goldsmith wrote, speaking from his experience as Assistant Attorney General in the Office of Legal Counsel, that members of the administration had expressed concerns that they might be subject to civil liability or even criminal liability if it was later determined that some of their conduct was illegal. So, Judge Mukasey faced a situation where an expression of an opinion by him would put people at risk. Professor Goldsmith, in a book which was recently published, documented the concern that members of the administration had expressed. Judge Mukasey also sought to explain his unwillingness to give a legal opinion on whether waterboarding was torture because he hadn't been read into the program. I thought that was inadequate and insufficient. While it is true he was not read into the program, there is no doubt it would have been easy for him to have been read into the program. The investigation which had been conducted prior to the President submitting his name to the Senate as a nominee for Attorney General was very thorough, and there is no doubt that he would have been entrusted with whatever classified information was involved in being informed on the issue of waterboarding. So I thought that was an excuse and not weighty--or not a valid excuse. Parenthetically, I think it is worth noting that there are members of the Judiciary Committee who were called upon to pass on Judge Mukasey's qualifications who had not been read into the program on waterboarding; that is, to know specifically what it was, whether it was used, what it was all about, was it entirely hypothetical, or what the facts were. We have some members of the Judiciary Committee--four--who are on the Intelligence Committee. The chairman and I as ranking member were read into the program. I tried to get the administration to read the members of the Judiciary Committee into the program, but the administration wouldn't do it. Now, they read the Intelligence Committee into the program, and I think the Intelligence Committee should have been read into the program, but the operative committee to pass on Judge Mukasey was not the Intelligence Committee. It was the Judiciary Committee. We voted on Judge Mukasey with members of the Judiciary Committee not knowing the specifics on waterboarding to have a sufficient basis, in my view, to cast an intelligent vote. But the administration precluded that. This evening, there will be about 80 Senators--if they stay up until midnight, or whenever it is that we vote--who will be voting on Judge Mukasey and waterboarding is going to be a central issue of the debate tonight--without knowing the details of what waterboarding is. The brutal fact is that the administration has not given Congress the information Congress should have received so that we can perform our oversight function. The Intelligence Act requires that members of the Intelligence Committee be notified of matters such as the secret terrorist surveillance program, and it may be that a few Members of Congress--the Speaker of the House, the senior Republican in the House, the majority leader of the Senate, and the minority leader of the Senate--were informed about the terrorist surveillance program. It may be that, finally, the chairman and ranking members on the Intelligence Committee in both Houses were informed. But the full committee, under the statute, was supposed to be informed. The administration didn't follow the statute as they should have. It was only when the confirmation of General Hayden came before the Senate that the administration finally notified the Intelligence Committee. I voted against General Hayden to be Director of the CIA as a protest vote. I said he was well qualified for the job, and I voted against him as a protest because the administration had not followed the law. They should have informed me, as chairman of the Judiciary Committee in the 109th Congress, and Senator Leahy, as ranking member. That is a statement of what might be considered as a collateral matter. It is relevant in this discussion because Judge Mukasey was not read into the program. I think he should have been. I don't know that he would have said anything more. But now the ball is squarely in our court--the congressional court. Legislation is pending that would make waterboarding torture and, therefore, illegal. This is the kind of question which I think is a quintessential example of what the Congress of the United States ought to decide. In a representative democracy, the Congress ought to make the determination of what is the appropriate public policy, and the Congress ought to assess the risk of terrorism--what is the risk to the United States?-- and then consider the conduct of waterboarding. What does it do? How frequently has it been used, if at all? Where is there an intent to use it? The Congress ought to make this evaluation and make the decision. We are the proper people to decide that issue. If the Congress enacts legislation that is signed into law, then Judge Mukasey has stated unequivocally that he would enforce it. Then there is another issue we all dance around, and that is the issue of the so-called ticking-bomb case. That is the situation described where a terrorist may come into possession of a powerful weapon--perhaps even a nuclear weapon--and, regrettably, that is not beyond the realm of possibility. There might be a situation where someone would know information that could stop the ticking bomb and injury to an enormous number of people could be prevented. What is to be done in that situation? The generalized statements that have been made by so-called leaders in our society are that we ought not to define that situation. They say, if we were to say that torture, waterboarding, or some other extreme form of interrogation were legal under even the most limited circumstances, that we would give legitimacy to waterboarding, to torture. And then with an exception, you find people that say--as the expression goes, the hole is so big, you could drive a truck through it. But, if this Senate and the House take up our duty to decide whether waterboarding is torture, we ought to make a decision as to whether it could be used in any circumstance. Perhaps we should decide it should be used in no circumstance. There has also been discussion about legislation to define the extraordinary circumstances when torture would be permitted--with a warrant application to a judge. We ask for judicial approval on wiretapping or warrants of arrest or on a variety of issues. Then there are some who the surmise that if the President was faced with a situation of a ticking bomb, it would be up to the President to act under those exigent circumstances, and he could be relied upon. But that is not so easy either because it may well be--and I think, in fact, is--that agents of the CIA would not undertake, under a Presidential order, a violation of U.S. law because no one is above the law. Even if the President were to authorize it, the President doesn't do the waterboarding or interrogation. Those people would be unwilling to undertake something that was a violation of law. There was a famous case, after World War I, where a ship was sunk by a submarine. The survivors in the lifeboat were at sea, and the submarine surfaced. The commander ordered the gunner to shoot the people in the lifeboat. The gunner resisted for a while, and then he followed his orders. He shot and killed the people in the lifeboat. The gunner was prosecuted, and he defended that he was following orders. The court said that you cannot follow illegal orders. Anybody should know better than to shoot people in a lifeboat. So we have a major issue to consider as it relates to the confirmation of Judge Mukasey, and I think the ball is now in our court. He will enforce legislation that equates waterboarding with torture. There are a couple of other points worthy of comment. I was not satisfied with Judge Mukasey's response to my questions on signing statements. We have seen that the President of the United States now does not follow the constitutional options when legislation is presented to him having been passed by both bodies, both Houses, where the Constitution says the President has the choice of signing it or vetoing it. We now find that he signs it and issues the signing statement, cherry-picking, deciding which of the provisions he will enforce and which he will not enforce. One of the measures passed by Congress by a 90-to-9 vote of the Senate was prohibiting interrogation that met certain standards. The President had a famed rapprochement with Senator McCain on the point. They came to terms. We passed the McCain language. Then the President issued a signing statement which, in effect, said he retained his Article II powers not to follow it. The PATRIOT Act, which came out of the committee during my tenure as chairman, gave the FBI substantial additional powers. In consideration of that, we reserved additional oversight. And then, notwithstanding that negotiation approved by the President's agents at the Department of Justice, the President issued a signing statement cherry-picking and leaving him free to disregard the oversight provision. I think Judge Mukasey should have been unequivocal in condemning that practice and should have said he would advise the President to either sign legislation or veto it but not to cherry-pick. He had a very artful answer where he says he will try to avoid this kind of tension and conflict between the executive branch and the Congress. While I don't like that, I don't think it is a sufficient reason to vote against him. Judge Mukasey was forthright on his views as to habeas corpus. He acknowledged that habeas corpus is a constitutional right, unlike his predecessor, who really rejected the plain English of the Constitution, which states that habeas corpus is a constitutional right. Considering all of these factors, it is my judgment, after meeting informally with former Federal Judge Mukasey and participating in the extensive hearings and reviewing answers to many written questions, that Judge Mukasey is well qualified to be Attorney General. I think it unfortunate that there will be many negative votes against him. I think those negative votes will be in the context of this waterboarding issue, where there are very substantial emotional and political considerations involved, and Senators exercise rights to vote as they choose. But I do believe that even those who vote against Judge Mukasey will acknowledge his qualifications. He is well qualified by way of academic and professional background, and he has a very sterling record as a judge; that he is honest, forthright, and talented. He is a lawyer's lawyer or a judge's judge. When you talk to him or question him at a hearing, you get back very sophisticated, erudite answers, analytically displaying a vast knowledge of the Constitution and the cases which have been interpreted. What weighs heavily in my mind on Judge Mukasey is the urgent need of the Department for new leadership. I thank the chairman for having a special markup on Tuesday. It was extra work for the committee, but Senator Leahy called the Judiciary Committee together for an extra markup. He has exercised the leadership to bring this matter to a vote tonight. I thank the distinguished majority leader also for scheduling the vote, because the Department of Justice needs Judge Mukasey at work tomorrow morning. They need to have him sworn in sometime between the vote of confirmation tonight and 8 a.m. tomorrow, when people ought to report to work at the Department of Justice. The Department of Justice has been categorized as dysfunctional, in disarray. It is in urgent need of an Attorney General. When that is done, I think we will see some nominations for Deputy, which is vacant. An Associate Attorney General is only an acting deputy, and a number of assistants are only acting. All things considered, I think it is in the national interest that we confirm former Federal Judge Mukasey. I predict he will do a sterling job as Attorney General. How much time remains, Mr. President?

Mr. SPECTER. So provided, for alternation?

Mr. SPECTER. Mr. President, the allocation has been made of 5 hours equally divided on the confirmation of Judge Michael Mukasey to be Attorney General and also to cover the Department of Defense appropriations bill. I have been informed that I will be in charge of the allocation of time. So I say to my colleagues who want to speak in favor of former Judge Mukasey or who want to speak on the Defense appropriations bill on the Republican side, come to the floor and let me know how much time you would like. The Democrats who are speaking in favor of Judge Mukasey will come out of my time as well. We ought to have some idea as to how much time will be required. Five hours will put us close to midnight. The ways of the Senate are wondrous. It is hard to figure out--we had our last vote at 11:45 and finished shortly after noon and could have started this debating process early in the afternoon. But, as I say, in the wondrous ways of the Senate, we could not begin it until 7 o'clock, until we had reached an agreement on procedural details, which might well have been done earlier. But I have been here a while, and I learned a long time ago the Senate is a lot smarter than I am, and we follow--we play the cards we are dealt. But I don't think there is any need for us to be in session until midnight, although things could get lively and perhaps some stray television viewers will turn on C-SPAN 2; they certainly wouldn't do it during the daytime when the soaps are on. But, it may well be that the time will be yielded back. And so, I inform my colleagues to not necessarily expect to vote as late as midnight, although that may be the case. Now, on to former Federal Judge Michael Mukasey. He is a man with an outstanding record. If you went to central casting, you couldn't find a better prospect to be Attorney General of the United States on substance or on qualifications. He graduated from Columbia University in 1963, Yale Law School in 1967, and was on the Board of Editors of the Yale Law Journal. With credentials from Yale, including the Board of Editors, and his high academic standing, these are excellent qualifications. He was an associate in a major New York law firm for 5 years after graduating from law school. He was then an assistant United States Attorney for the Southern District of New York from 1972 to 1976 and was chief of the Official Corruption Unit for 2 years. Then, he returned to the practice of law for 11 years and became a Federal judge in 1988, serving for almost two decades, through 2006. He was Chief Judge of the Federal Court in the Southern District of New York in Manhattan from 2000 to 2006 where he presided over some very important trials involving terrorism. The courthouse for the Federal court in New York was just a few blocks from the Trade Towers, which were victimized on September 11, 2001. Now, a great deal has been said about the issue of waterboarding. The Senator from Illinois who just spoke said the morals of our country will be judged by what has gone on with Judge Mukasey's confirmation process. We have worked through this issue, and I believe we have a satisfactory resolution of it, which accomplishes the substance of what the Senator from Illinois was decrying. I am opposed to waterboarding. I think waterboarding is torture. When the issue was before the U.S. Senate on the Military Commission Act, we had a vote, and this body voted 53 to 46 not to classify waterboarding as torture. That is what the Senate did. In another legislative matter, the Detainee Treatment Act, waterboarding was prohibited. But, as of this moment, the Congress of the United States has not spoken on the matter. Now Judge Mukasey has stated that if waterboarding is declared the equivalent of torture, as Attorney General he will uphold that congressional determination, even if the President seeks to reject the statute by virtue of the President's Article 2 powers as Commander in Chief and other inherent authority, which the President possesses under Article 2. Now that is exactly what the President did on the Terrorist Surveillance Program. The Foreign Intelligence Surveillance Act enacted in 1978 specifies that the exclusive way to wiretap is to go to a Federal judge with a statement of probable cause and get a warrant-- judicial approval--to do the wiretapping. But, President Bush said he had authority to disregard the statute because he had constitutional authority. As a matter of constitutional doctrine, you can't amend the Constitution with a statute. To amend the Constitution, you have to have a constitutional amendment. An amendment must pass the Congress by a two-thirds vote and be ratified by three-fourths of the States. So the President took the position that his constitutional power superseded the statute, and he rejected it and ignored it. I have grave doubts about the propriety of what the President did. We didn't find out about it until it was disclosed in the newspapers in mid-December of 2005 when we were in the midst in this Chamber of debating the PATRIOT Act. I chaired the Judiciary Committee, and I was at this podium managing that bill when the news broke in the morning papers that day, and a number of Senators said they were prepared to vote for the PATRIOT Act until they found out what had been done secretly under the Terrorist Surveillance Program. As the record shows, we didn't pass the bill until early in 2006. But the relevance of that procedure is that there was concern that even if Congress said waterboarding was torture and was therefore illegal, the President might seek to use his Article 2 powers to ignore that law. The first disclosure that former Judge Mukasey would not uphold that type of Presidential action came with a disclosure by Senator Schumer about a meeting he had with former Judge Mukasey last Friday. It appeared in the press that Judge Mukasey would say the congressional enactment was controlling. I then had a discussion by telephone with Judge Mukasey last Monday morning to be explicit and to confirm what I had read in the papers. Not wanting to rely on that, Judge Mukasey told me he that it was his legal judgment that Congress had the constitutional authority to legislate, to say waterboarding was torture and was, therefore, illegal. And if such legislation was enacted, then it was Judge Mukasey's legal judgment that the President could not supersede the statute and could not rely on Article 2 power to ignore that finding. That was confirmed in writing. I ask unanimous consent that a copy of that letter dated last Monday, November 5, be printed in the Record.

Mr. SPECTER. I thank the chair and yield the floor. Exhibit 1 U.S. Senate, Washington, DC, November 5, 2007. Hon. Michael B. Mukasey, Avenue of the Americas, New York, NY. Dear Judge Mukasey: I think it is important to have our telephone conversation of this morning on the record so I'm writing to confirm the following: (1) In your opinion, Congress has the constitutional authority to legislate that waterboarding is torture and is therefore illegal; and (2) If such legislation is enacted, it is your opinion that the President would not have the authority under Article II of the Constitution to overrule that legislation. If I have inaccurately stated our conversation, I would appreciate your prompt advice. As we discussed, the New York Times on Saturday quoted Senator Schumer on your commitment to the same effect. If I do not hear from you to the contrary, I intend to release this letter to the news media because this information would be important on the Senate's consideration of your confirmation. Sincerely, Arlen Specter.