Arlen Specter

Mr. SPECTER

Mr. SPECTER. Madam President, I thank my colleagues for yielding this time. I have sought recognition to express my approval--I am glad to see that the Attorney General of the United States, in telephone calls to Senator Leahy and myself and now in letters, has advised that there is a new procedure to have the requests for wiretaps on al-Qaida members submitted to the Foreign Intelligence Surveillance Court. On December 16, the New York Times broke the story that there were wiretaps going on under a Presidential order without complying with the customary requirement that probable cause be established and submitted to the court, which would authorize the issuance of a warrant, to authorize the wiretap. On that day, Friday, we were in the final stages of floor debate on the PATRIOT Act, and the disclosure that morning that there were warrantless recordings going on was quite a shock and quite a problem, because I was managing that bill in my capacity as chairman of the Judiciary Committee. I said on the floor at that time that there was a clear-cut violation of the Foreign Intelligence Surveillance Act, which provides that the Act is the exclusive way for having a wiretap for foreign intelligence surveillance. The President has sought to justify the surveillance under his article II inherent powers. That raises a complicated issue, which can only be determined by the courts by weighing the invasiveness of the wiretapping--invasiveness into privacy--contrasted with the importance of national security. Most of last year found this item as the No. 1 priority of the Judiciary Committee and my No. 1 priority as chairman. We had a series of hearings, four hearings. I introduced legislation to try to bring the program at that time under the Foreign Intelligence Surveillance Act. The administration had refused to disclose the details of the program to the Judiciary Committee. They maintained that attitude consistently up until today. They finally did submit it, after a lot of pressure, to the Intelligence Committees--first a subcommittee of the Senate Intelligence Committee, then when the House resisted only a subcommittee, it was finally submitted to the full committees--really it was only submitted when the time came for the confirmation of General Hayden for Director of the CIA. I have not been privy to what was disclosed to the Intelligence Committee, but based on my chairmanship of that committee during the 104th Congress, I have some doubts as to the adequacy of the disclosure. I know when I was chairman, the chairman was supposed to be informed about those classified and secret programs, but that was in fact not the case. When the matter later moved into litigation and the Federal court in Detroit declared the surveillance program unconstitutional, and then the appeal was taken to the Sixth Circuit, I introduced substitute legislation--S. 4051 last year, and I've reintroduced it already this year--which would have provided for expedited review in the Federal courts and mandatory review by the Supreme Court. The bill also would have required individualized warrants for calls originating in the United States, because the administration had disclosed that, if there were changes made in the Foreign Intelligence Surveillance Act, there could be a warrant for all outgoing calls but not incoming calls because there were so many. I am glad to see that we may now have all of that resolved. We are not sure. I want to know the details of this program. Senator Leahy has already spoken on the subject today and has put into the Record a letter that he and I received today from the Attorney General. The key parts are as follows: I am writing to inform you that on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to approval of the Foreign Intelligence Surveillance Court. That language says there will be probable cause established. I think we need to know more about the procedures for the determination of probable case, whether it is on individualized warrants or it is a group program. We will need to know more about the determination of an individual being an agent of al Qaeda, and we will need to know more about what is meant by an associated terrorist organization, to see that probable cause has been established under the customary standards. The letter from the Attorney General goes on to say: In the spring of 2005--well before the first press account disclosing the existence of the Terrorist Surveillance Program--the Administration began exploring options for seeking such FISA Court approval. It would have been my hope that the Attorney General, in our oversight hearings, where he was called and asked about this program, would have made that disclosure. A lot of time and effort went into the Judiciary Committee hearings and went into the drafting of legislation. I personally met with the President last July 11 and secured his agreement to submit this program to the Foreign Intelligence Surveillance Court. For a variety of reasons, which I shall not detail now, that legislation did not move forward. Then, as I've noted, there was substitute legislation when the Federal court in Detroit declared the program unconstitutional and the matter came before the Sixth Circuit. The Attorney General's letter says, as is appropriate, that the program will have ``the speed and agility necessary to protect the Nation'' from terrorist attack--and that has always been a major concern: that we be protected, but that we be protected with an appropriate balance, so that there not be an intrusive wiretap without the customary court approval. The Attorney General had advised me that there would be a meeting today, which I am just informed has been canceled, but there needs to be oversight beyond what has been disclosed in this letter. But at least there is a very significant first step. It is regrettable that these steps were not taken a long time ago. I would like to have an explanation as to why it took from the spring of 2005, and at least from December 16, 2005, until now, when there has been such public furor and public concern. Further, the letter of the Attorney General says: Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires. It would be my hope that the program is terminated now, since there is an alternative method which the Attorney General has announced. I do not know when the program will expire. They have it in place for 45-day periods. We do not know when the last one started, so we do not know when this one will end. But, with an alternative program in place, it ought to be terminated now--to have the regular procedures for the establishment of probable cause, to protect civil liberties. And, as the Attorney General says, to address concerns in taking care of the protection of the country. Again, Madam President, I thank my colleagues for yielding the time. I yield the floor.

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 report on the recent trip I made from December 13 to December 30 to India, Syria, and Israel. The trip to India was a revelation to me--to see the vast economic progress that this gigantic nation of 1.1 billion people has made. For a long time, the nation of India resisted foreign investment, perhaps as a result of the colonialization by the British. But for most of the past two decades, India has been open for investment and trade. During the course of my travels there, which are detailed in a lengthy statement that I will include for the Record at the conclusion of my extemporaneous remarks, I have detailed the many U.S. plants we visited, such as GE and IBM, all showing a remarkable aptitude for the technology of the 21st century. I recall, several years ago, being surprised when I sought a number from information and found out that the answering person was in India. I have since learned that this is a common practice because, whereas, it used to cost about $3.50 for a minute conversation between the United States and India, it now costs about 7 cents. The Indians are very highly educated. They are able to take on jobs, so-called outsourcing, at a much lower rate of compensation. They have physician groups who are available to read, through the miracles of modern technology, x rays. They have a 10\1/2\-hour time difference, so they are prepared to do it on pretty much on an around-the-clock basis. While, obviously, there is a loss of jobs with outsourcing, I think our long-range benefits in trade with India--a major trading partner--and the strengthening of this democracy in Asia will provide a tremendous source of strength and assistance to the goals of the United States. I think it is especially important to see the Nation of India develop with its 1.1 billion people as a counterbalance, so to speak, to China with 1.3 billion people. We have in India a democracy, contrasted with the authoritarian government which prevails in China and, in the long run, the incentives and the productivity of free people in a democracy should be quite a counterbalance, if not a nation which will exceed the tremendous strides which China has seen. A major topic of conversation on my trip to India was the recent agreement between the United States and India, where we will make nuclear technology available to the nation of India. When I first learned of that proposal, I had very substantial misgivings because India was not a party to the Nuclear Non-Proliferation Treaty. But on examining the issues further and seeing that India had not joined that treaty as a matter of principle, feeling it was discriminatory, since the only people who were part of the so-called nuclear club, or were recognized to be part of the so-called nuclear club, were the five major powers. I think if the U.N. Charter were being written today, India would be included as one of the five major powers of the world. At any rate, that was a major topic of conversation. The nuclear technology that the United States will make available to India will strengthen India's economy and will be a good bridge in cementing relations between the United States and India. I had the privilege of meeting with Prime Minister Manmohan Singh of India to discuss a wide range of issues. He expressed great pleasure at his relations with President Bush and with the signing of the nuclear agreement, and he made a comment that India did not want another nuclear power in the region and specifically said he was opposed to seeing Iran gain nuclear weapons. I thanked Prime Minister Singh in India for the vote which they cast in support of the U.S. position in the United Nations on the Iranian issue, and I think the agreement will be very helpful in promoting good relations between the United States and India. I then traveled to Syria, which was my 16th visit to that nation, starting in 1984. During the course of those visits--I have had the opportunity to meet with former President Hafez al-Assad, on nine occasions, and with his successor, his son, President Bashar al-Assad, on four occasions. I recollect that the first meeting I had with Hafez al-Assad was in January of 1988, and it lasted 4 hours 38 minutes, discussing a wide range of issues on the Iran-Iraq war, which had just been concluded, and then on Syrian-Israeli relations and then on U.S.- U.S.S.R. relations, and I found President al-Assad at that time to be a very engaging interlocutor. I suggested, on a number of occasions, that I had taken a sufficient amount of his time, and he generously extended the time until we had discussed a very wide range of issues. I found those discussions with President Hafez al-Assad to be productive. In 1996, when Prime Minister Netanyahu took office, he made a public announcement that he would hold Syria responsible for the Hezbollah attacks on northern Israel. Syria then realigned their troops. I was in Jerusalem, and Prime Minister Netanyahu asked me to carry a message to President Hafiz al-Assad that he wanted peace, and I did. Later, now Foreign Minister Walid al-Mouallem said that that comment helped to defuse the situation. For many years, President Hafez al-Assad refused to negotiate with Israel unless all five of the major superpowers sponsored the international conference. Israel's Prime Minister Shamir was opposed on the grounds that he would attend the conference sponsored by the United States and the U.S.S.R. but not when the odds were stacked 4 to 1 against Israel. I discussed that matter on a number of occasions with President Hafez al-Assad, whether my urging him had any effect. The effect is that President Hafez al-Assad agreed to go to Madrid in 1981 to a conference sponsored by the United States and the Soviet Union. I had urged President Hafez al-Assad to allow the Syrian Jews to leave. I made a point to him in the early to mid-1990s that the Jewish women in Syria had no one of their own faith to marry. He made an interesting suggestion. He said that if anyone will come and claim a Syrian Jewish bride, she could leave the country. I translated that offer to the large Syrian-Jewish community in New York and, regrettably, there were no takers. But after a time, President Hafez al-Assad let the Jews go on his own, which was a constructive move. I first met President Bashar al-Assad at the funeral of his father. I was the only Member of Congress to attend the funeral. It was a 33-hour trip--15 hours over, 3 hours on the ground, and 15 hours back. I made the trip to pay my respects and to meet the new President. On this occasion, I met extensively for more than an hour with Foreign Minister Walid al-Mouallem and the next day for a little over an hour with President Bashar al-Assad. President Assad said that he was interested in undertaking peace negotiations with Israel. He said he was obviously looking for a return of the Golan but that he had a good measure of quid pro quo to offer Israel and assistance on the fragile truce which Israel now has with Hezbollah and also assistance with Hamas. In my formal statement, I go into greater detail on that subject. I pressed President Bashar al-Assad on the obligations Syria had to abide by U.N. Resolution 1701 to not to support Hezbollah, and he said Syria would honor that requirement, that obligation. I, also, pressed him on allowing the U.S. investigation into the assassination of Lebanese Prime Minister Hariri, and again I received assurances on that subject. It is always difficult to know the validity of the assurances, but I think the dialog and the conversation and pressing the point is very worthwhile. With respect to Iraq, President Bashar al-Assad said that Syria would be interested in hosting an international conference attended by the warring factions in Iraq and that Syria had already gained the concurrence of Turkey to participate and Syria would invite other Arab countries to such a discussion. I realize that there is some disagreement with the issue of dialog with Syria, but it is my view, developed over many years of foreign travel, that dialog and talk is a very important and worthwhile undertaking. My trip there followed visits by Senators Bill Nelson, Chris Dodd, and John Kerry. I think all came away with the same conclusion that the dialog was very much worthwhile. I then traveled to Israel, where I had an opportunity to meet with Israeli Prime Minister Olmert. I relayed to him the interest that Bashar al-Assad had in dialog. Prime Minister Olmert had been reportedly cool to any such discussions subsequent to my visit. Some more positive statements were coming from Israeli officials about possible negotiation also with Israel, but Prime Minister Olmert insisted on having some display of good faith on the part of Syria before even considering undertaking such discussions. We also met with Foreign Minister Livni and former Prime Minister Netanyahu and our conversations are detailed in my written statement. We then traveled to Ramallah to talk to Salam Fayyad and Hannan Ashrawi, members of the so-called Third Way, a very small Palestinian party but a very able people and very stalwart advocates for peace. Those comments are contained in my written statement. I ask unanimous consent that the full text of my prepared statement be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I note another Senator in the Chamber waiting to speak, so I will be relatively brief in comments on one other subject. I note that an official in the Department of Justice has challenged the attorneys who have been doing pro bono work for detainees at Guantanamo, raising an issue as to whether that representation is proper and raising the suggestions that their corporate employers might be interested in reconsidering their employment based on their representation of the detainees at Guantanamo. It is a little hard to understand how anyone in 2007 would raise a question about pro bono work being done by lawyers who may be undertaking or who are undertaking unpopular causes. That has been the long tradition of the legal profession. The first noteworthy example was Andrew Hamilton, a famous Philadelphia lawyer who represented Peter Zenger at the time when there were hostilities between the United States and Great Britain. Andrew Hamilton took on an unpopular cause and set the standard for lawyers to do just that. I recollect the trials under the Smith Act of the Communists where lawyers of the highest repute undertook the representation of the defendants in those cases, a highly unpopular matter. And in the Philadelphia prosecution of the Smith Act, some of the most distinguished lawyers of the city, again, undertook that representation. A lawyer's duty is to undertake the representation of a client, and it is up to the court to make a decision on whether the attorney is right or the attorney is wrong. This challenge by a Department of Defense official is in line with the recent position of the Department of Justice in seeking to limit the right to counsel for corporate officials who are being investigated, with the Department of Justice under the so-called Thompson memorandum taking the position that charges might be increased if the firm and the individual did not waive the attorney-client privilege. Then the Department of Justice objected to the firm paying the legal fees. A Federal judge in the Southern District of New York has already declared it unconstitutional to challenge the payment of the legal fees. I have introduced legislation which would revise the Department of Justice policy even further than the revision by Deputy Attorney General McNaulty in the so-called McNaulty memorandum. But when lawyers undertake the representation of individuals in unpopular causes, they are entitled to praise and not criticism. I thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce the Prescription Drug and Health Improvement Act of 2007 to reduce the high prices of prescription drugs for Medicare beneficiaries. I introduced a similar version of this bill in the 108th and the 109th Congress, S. 2766 and S. 813, respectively. Americans, specifically senior citizens, pay the highest prices in the world for brand-name prescription drugs. With 46.6 million uninsured Americans and many more senior citizens without an adequate prescription drug benefit, filling a doctor's prescription is unaffordable for many people in this country. The United States has the greatest health care system in the world; however, too many seniors are forced to make difficult choices between life-sustaining prescription drugs and daily necessities. The Centers for Medicare and Medicaid Services report that in 2005, per capita spending on prescription drugs rose approximately 7 percent, with a similar rate of growth expected for this year. Much of the increase in drug spending is due to higher utilization and the shift from older, lower cost drugs to newer, higher cost drugs. However, rapidly increasing drug prices are a critical component. High drug prices, combined with the surging older population, are also taking a toll on State budgets and private sector health insurance benefits. Medicaid spending on prescription drugs rose by 7.5 percent between 2004 and 2005. Until lower priced drugs are available, pressures will continue to squeeze public programs at both the State and Federal level. To address these problems, my legislation would reduce the high prices of prescription drugs to seniors by repealing the prohibition against interference by the Secretary of Health and Human Services (HHS) with negotiations between drug manufacturers, pharmacies, and prescription drug plan sponsors and instead authorize the Secretary to negotiate contracts with manufacturers of covered prescription drugs. It will allow the Secretary to use Medicare's large beneficiary population to leverage bargaining power to obtain lower prescription drug prices for Medicare beneficiaries. Price negotiations between the Secretary of HHS and prescription drug manufacturers would be analogous to the ability of the Secretary of Veterans Affairs to negotiate prescription drug prices with manufacturers. This bargaining power enables veterans to receive prescription drugs at a significant cost savings. According to the National Association of Chain Drug Stores, the average ``cash cost'' of a prescription in 2005 was $51.89. The average cost in the Veterans Affairs (VA) health care system in fiscal year 2006 was $28.61. In the 108th Congress, in my capacity as chairman of the Veterans' Affairs Committee, I introduced the Veterans Prescription Drugs Assistance Act, S. 1153, which was reported out of committee, but was not considered before the full Senate. In the 109th Congress, I again introduced the Veterans Prescription Drugs Assistance Act, S. 614, which was not reported out of committee. This legislation will broaden the ability of veterans to access the Veterans Affairs' Prescription Drug Program. Under my bill, all Medicare-eligible veterans will be able to purchase medications at a tremendous price reduction through the Veterans Affairs' Prescription Drug Program. In many cases, this will save veterans who are Medicare beneficiaries up to 50 percent on the cost of prescribed medications, a significant savings for veterans. Similar savings may be available to America's seniors from the savings achieved using the HHS bargaining power, like the Veterans Affairs bargaining power for the benefit of veterans. These savings may provide America's seniors with fiscal relief from the increasing costs of prescription drugs. I believe this bill can provide desperately needed access to inexpensive, effective prescription drugs for America's seniors. The time has come for concerted action in this arena. I urge my colleagues to move this legislation forward promptly. 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 the Prescription Drug and Health Improvement Act of 2007 to reduce the high prices of prescription drugs for Medicare beneficiaries. I introduced a similar version of this bill in the 108th and the 109th Congress, S. 2766 and S. 813, respectively. Americans, specifically senior citizens, pay the highest prices in the world for brand-name prescription drugs. With 46.6 million uninsured Americans and many more senior citizens without an adequate prescription drug benefit, filling a doctor's prescription is unaffordable for many people in this country. The United States has the greatest health care system in the world; however, too many seniors are forced to make difficult choices between life-sustaining prescription drugs and daily necessities. The Centers for Medicare and Medicaid Services report that in 2005, per capita spending on prescription drugs rose approximately 7 percent, with a similar rate of growth expected for this year. Much of the increase in drug spending is due to higher utilization and the shift from older, lower cost drugs to newer, higher cost drugs. However, rapidly increasing drug prices are a critical component. High drug prices, combined with the surging older population, are also taking a toll on State budgets and private sector health insurance benefits. Medicaid spending on prescription drugs rose by 7.5 percent between 2004 and 2005. Until lower priced drugs are available, pressures will continue to squeeze public programs at both the State and Federal level. To address these problems, my legislation would reduce the high prices of prescription drugs to seniors by repealing the prohibition against interference by the Secretary of Health and Human Services (HHS) with negotiations between drug manufacturers, pharmacies, and prescription drug plan sponsors and instead authorize the Secretary to negotiate contracts with manufacturers of covered prescription drugs. It will allow the Secretary to use Medicare's large beneficiary population to leverage bargaining power to obtain lower prescription drug prices for Medicare beneficiaries. Price negotiations between the Secretary of HHS and prescription drug manufacturers would be analogous to the ability of the Secretary of Veterans Affairs to negotiate prescription drug prices with manufacturers. This bargaining power enables veterans to receive prescription drugs at a significant cost savings. According to the National Association of Chain Drug Stores, the average ``cash cost'' of a prescription in 2005 was $51.89. The average cost in the Veterans Affairs (VA) health care system in fiscal year 2006 was $28.61. In the 108th Congress, in my capacity as chairman of the Veterans' Affairs Committee, I introduced the Veterans Prescription Drugs Assistance Act, S. 1153, which was reported out of committee, but was not considered before the full Senate. In the 109th Congress, I again introduced the Veterans Prescription Drugs Assistance Act, S. 614, which was not reported out of committee. This legislation will broaden the ability of veterans to access the Veterans Affairs' Prescription Drug Program. Under my bill, all Medicare-eligible veterans will be able to purchase medications at a tremendous price reduction through the Veterans Affairs' Prescription Drug Program. In many cases, this will save veterans who are Medicare beneficiaries up to 50 percent on the cost of prescribed medications, a significant savings for veterans. Similar savings may be available to America's seniors from the savings achieved using the HHS bargaining power, like the Veterans Affairs bargaining power for the benefit of veterans. These savings may provide America's seniors with fiscal relief from the increasing costs of prescription drugs. I believe this bill can provide desperately needed access to inexpensive, effective prescription drugs for America's seniors. The time has come for concerted action in this arena. I urge my colleagues to move this legislation forward promptly. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, the legislation which I am introducing is the Attorney-Client Privilege Protection Act. This legislation was previously introduced in the 109th Congress. In 2003, the Department of Justice adopted the provisions of the so- called Thompson Memorandum, which allowed prosecutors to request that companies under investigation waive their attorney-client privilege, and that, absent such a waiver, prosecutors may consider the company's refusal to waive privilege in the charging process. As a result, the legal and business community complained that, if the attorney-client privilege is not waived, the corporation and individuals may get a stiffer charge. The Department of Justice has recently revised the Thompson Memorandum, with Deputy Attorney General McNulty substituting what is now known as the McNulty Memorandum. Prior to the release of the McNulty Memorandum, I had a number of discussions with Department of Justice officials, and I thank the Department of Justice for the effort which they have made, but it is not sufficient. The new memorandum is inadequate in its protection of the attorney-client privilege. Although the McNulty Memorandum is inadequate in failing to protect attorney-client privilege, it does improve another part of the Department of Justice's prior procedure under the Thompson Memorandum, which effectively denied the payment of counsel fees so that people who were charged were unable to defend themselves without bankrupting themselves in defense. That provision of the earlier Thompson Memorandum was declared unconstitutional in a case in the Southern District of New York. Mr. President, again, I ask unanimous consent that the full text of my statement be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am reintroducing the text of S. 4051, which I originally introduced on November 14 of last year. And the title articulates it in a succinct way, so I will read that. It is: a bill to provide sufficient resources to permit electronic surveillance of United States persons for foreign intelligence purposes to be conducted pursuant to individualized court-issued warrants for calls originating in the United States, to provide additional resources to enhance oversight and streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and to ensure review of the Terrorist Surveillance Program by the United States Supreme Court. I made a number of efforts in the 109th Congress to subject the President's surveillance program to judicial review in accordance with the existing law that a search-and-seizure warrant or a wiretap ought not to be issued without a judge making a finding of probable cause and authorizing that kind of a search and seizure or that kind of a wiretap. Without going into the entire history, that bill was refined to the point where it is articulated in S. 4051 of the 109th Congress, which would provide for individualized warrants for calls originating in the United States and going out. That can be accomplished, according to the CIA, if there are additional resources, which this bill provides, and if the time for retroactive approval is extended from 3 days to 7 days. With respect to calls originating outside the United States and coming in, we are advised there are simply too many of those to cover, so that on those calls the bill would expedite the judicial review which is currently in process. A Federal court in Detroit has declared the President's program unconstitutional, and it is now pending in the Sixth Circuit. This bill would mandate review by the Supreme Court of the United States and would put review in the Federal courts on an accelerated timetable. There are objections to proceeding with legislation along this line because of an interest in having hearings. Well, we have had a whole series of hearings, and the administration has refused to tell the Judiciary Committee the details of the program. Under our division of authority, it is the Intelligence Committee which has jurisdiction over this kind of a program. But, we could proceed with hearings and still enact legislation which would provide constitutional protection for calls originating in the United States, which is the more serious category. Citizens here, people here in the United States, would have individual warrants and a judicial determination of probable cause before the surveillance and the wiretaps were put into effect. Meanwhile, the program goes on. It has been going on since late 2001. It has been known to the public since December 16, 2005. And each day that passes, there are more taps, there are more searches and seizures, there is more surveillance, which may not comport with constitutional provisions. There may be the motivation to show that the President has broken the law. And there is no doubt that the surveillance program does violate the Foreign Intelligence Surveillance Act of 1978. But the President contends that he has inherent article II power as Commander in Chief which supersedes the statute. And he may be right about that. But only a court can determine. And under the existing standards, the court must make a determination of the nature of the invasion of privacy contrasted with the importance for the public welfare of providing security. That is a judicial function. It seems to me that where you have an avenue to have probable cause established in the traditional way on calls going out of the United States, we ought to utilize it. We ought not to have that program continue in effect without having that kind of constitutional procedure. And then, as to calls originating outside of the United States, if the President is right, that can be determined by the courts. Let that proceed in that manner. And, the justification for delay--that we need to show the President of the United States has violated the law--is a wholly insufficient justification to withhold legislation that would be a major improvement to this surveillance program. We can conclude, in my view, that he has violated FISA. But to repeat--and I do not like to repeat--he may have the constitutional authority for the surveillance program, but that has to be determined by a judicial proceeding. Mr. President, I ask unanimous consent that a copy of the bill be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I strongly support legislation introduced earlier today which would permit Federal funding to be used for embryonic stem cell research. That is a subject which has been at the top of my agenda since November of 1998 when stem cells were first exposed. Within 10 days, in December 1998, the Appropriations Subcommittee on Labor, Health, Human Services and Education held the first hearing to explore the potential of embryonic stem cell research. In the intervening years the subcommittee has held some 19 hearings exploring this issue in some great detail. The Specter-Harkin bill was passed last year, vetoed by the President, and the bill is back before the Congress this year where it may be possible to override a Presidential veto. That depends upon how much public support there is--really, how much public clamor there is-- for this legislation to be enacted. Embryonic stem cells have the potential to replace diseased cells. They are a veritable fountain of youth. They have enormous potential in Parkinson's, Alzheimer's, cancer, heart disease, and almost all of the known maladies. I don't know of any malady where they are not a potential for a cure because the cells in a person's body become diseased, and if the embryonic stem cell can replace the diseased cell, there is a potential for a cure. There is opposition to this legislation on the ground that it would destroy life. That is factually not correct because there are some 400,000 embryos created for in vitro fertilization which are going to be destroyed. When the issue was raised about destroying a life, the subcommittee took the lead and appropriated $2 million to facilitate adoptions. There have only been about 100 adoptions in the past several years, so there is no doubt that using some of these embryonic stem cells will not destroy life because they will not be used to create life. If there were any chance they would create life, I would not consider utilizing them for medical research. When the alternative is to throw them away or to use them, it seems to me a clear choice to utilize them to save lives and fight disease. That is the thrust of this legislation.

Mr. SPECTER

Mr. SPECTER. Madam President, moving now to the issue of signing statements: I had introduced legislation in the 109th Congress to provide standing to the Congress to go to court when the President issues signing statements which, in effect, cherry-picked the provisions in the legislation he liked and disregarded the provisions in the legislation he disliked. That kind of a proceeding, in my view, is unconstitutional because the Constitution says that we present a bill to the President; he either signs it or vetoes it. His veto is subject to override on a two-thirds vote. But, the President cannot pick and choose among the provisions of the act. When we passed the PATRIOT Act, there were some provisions very carefully negotiated as to congressional oversight. No objection had been raised by the Department of Justice in our discussions as we negotiated about the bill. And then, when the President signed the bill, the President specifically said that he would not pay attention to those provisions if he felt that his Executive power would be impinged upon. If he disagreed with the provisions, he should have told us before we legislated. Similarly, in the McCain Anti-Torture legislation, which passed the Senate 90 to 9, a compromise was struck between the White House and Senator McCain. And here again, the President's signing statement seems to undermine the compromise that was struck. I am not going to reintroduce the legislation now because we are discussing some modifications with some of my Senate colleagues, and I am going to defer for a brief period of time to see if we can get additional cosponsors.

Mr. SPECTER

Mr. SPECTER. Madam President, on the first day of the 110th Congress, it is an appropriate occasion to reintroduce legislation which was introduced in the 109th Congress which was not enacted. I have a number of legislative proposals to introduce today and to discuss. (The remarks of Mr. Specter pertaining to the introduction of S. 185, S. 186, and S. 187 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.''

Mr. SPECTER

Mr. SPECTER. Madam President, finally, a brief comment on judicial nominations. During the course of the 109th Congress, the Senate confirmed two Supreme Court Justices, Chief Justice Roberts and Justice Alito, 16 Court of Appeals judges, 35 District Court judges, and 1 Court of International Trade judge. At the close of the 109th Congress, there were 13 District Court nominees on the Executive Calendar, but were held up on a technicality. I am pleased to say that Senator Leahy advised me earlier today he is going to put those 13 nominees on the first executive session of the Judiciary Committee next week, so they will be confirmed. There was no objection raised to them in the last Congress, except they were tied up on a concern raised by one Senator about a nominee for the Western District of Michigan. In the last Congress, we were also able to confirm a number of judges--circuit judges, who have been held up for a long period of time: Priscilla Owen, pending since 2001; Janice Rogers Brown, pending since 2003; William Pryor, pending since 2003; Brett Kavanaugh, pending since 2003. I ask unanimous consent that my full statement be printed in the Record at the conclusion of these extemporaneous remarks.

Mr. SPECTER. Madam President, in the absence of any other Senator on the floor, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I will introduce legislation denominated the Habeas Corpus Restoration Act. Last year, in the Military Commissions Act, the constitutional right of habeas corpus was attempted to be abrogated. I fought to pass an amendment to strike that provision of the Act which was voted 51 to 48. I say ``attempted to be abrogated'' because, in my legal judgment, that provision in the Act is unconstitutional. It is hard to see how there can be legislation to eliminate the constitutional right to habeas corpus when the Constitution is explicit that habeas corpus may not be suspended except in time of invasion or rebellion, and we do not have either of those circumstances present, as was conceded by the advocates of the legislation last year to take away the right of habeas corpus. We have had Supreme Court decisions which have made it plain that habeas corpus is available to noncitizens and that habeas corpus applies to territory controlled by the United States, specifically, including Guantanamo. More recently, however, we had a decision in the U.S. District Court for the District of Columbia applying the habeas corpus jurisdiction stripping provision of the Military Commissions Act, but I believe we will see the appellate courts strike down this legislative provision. The contention that the gravamen or the substance of habeas corpus is provided by the statutory review to the Circuit Court of the District of Columbia is fallacious on its face. All the statute does is allow for a review of the regularity of proceedings. In my prepared statement, I cite an example of litigation before a federal district court, where a person charged with consorting with al-Qaida asked: ``What was the name of the person? He asked: What was the name of the person I'm supposed to have consorted with? And the Presiding Officer said: I don't know, which, according to the opinion, brought uproarious laughter from the audience. Here a man is charged with consorting with al-Qaida, and they cannot even tell him the name of the person he is alleged to have consorted with. The hearing before the Judiciary Committee, which I chaired, contained expansive, detailed evidence about the proceedings under the review provisions in Guantanamo, which are grossly, totally insufficient. The New York Times had an extensive article on this subject, starting on the front page, last Sunday, and continuing on a full page on the back page about what is happening at Guantanamo. It is hard to see how in America, or in a jurisdiction controlled by the United States, these proceedings could substitute for even rudimentary due process of law. As I might add, the Habeas Corpus Restoration Act was introduced in the 109th Congress. I offered the bill on behalf of myself and Senator Leahy. Consequently, we had this bill listed in the 109th Congress as a Specter-Leahy bill, and with Senator Leahy's consent, it is denominated as the Specter-Leahy bill again in the 110th Congress. Mr. President, I ask unanimous consent that my prepared text be printed in the Record.

Mr. SPECTER. Mr. President, the legislation which I am introducing is the Attorney-Client Privilege Protection Act. This legislation was previously introduced in the 109th Congress. In 2003, the Department of Justice adopted the provisions of the so- called Thompson Memorandum, which allowed prosecutors to request that companies under investigation waive their attorney-client privilege, and that, absent such a waiver, prosecutors may consider the company's refusal to waive privilege in the charging process. As a result, the legal and business community complained that, if the attorney-client privilege is not waived, the corporation and individuals may get a stiffer charge. The Department of Justice has recently revised the Thompson Memorandum, with Deputy Attorney General McNulty substituting what is now known as the McNulty Memorandum. Prior to the release of the McNulty Memorandum, I had a number of discussions with Department of Justice officials, and I thank the Department of Justice for the effort which they have made, but it is not sufficient. The new memorandum is inadequate in its protection of the attorney-client privilege. Although the McNulty Memorandum is inadequate in failing to protect attorney-client privilege, it does improve another part of the Department of Justice's prior procedure under the Thompson Memorandum, which effectively denied the payment of counsel fees so that people who were charged were unable to defend themselves without bankrupting themselves in defense. That provision of the earlier Thompson Memorandum was declared unconstitutional in a case in the Southern District of New York. Mr. President, again, I ask unanimous consent that the full text of my statement be printed in the Record.

Mr. SPECTER. Mr. President, I am reintroducing the text of S. 4051, which I originally introduced on November 14 of last year. And the title articulates it in a succinct way, so I will read that. It is: a bill to provide sufficient resources to permit electronic surveillance of United States persons for foreign intelligence purposes to be conducted pursuant to individualized court-issued warrants for calls originating in the United States, to provide additional resources to enhance oversight and streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and to ensure review of the Terrorist Surveillance Program by the United States Supreme Court. I made a number of efforts in the 109th Congress to subject the President's surveillance program to judicial review in accordance with the existing law that a search-and-seizure warrant or a wiretap ought not to be issued without a judge making a finding of probable cause and authorizing that kind of a search and seizure or that kind of a wiretap. Without going into the entire history, that bill was refined to the point where it is articulated in S. 4051 of the 109th Congress, which would provide for individualized warrants for calls originating in the United States and going out. That can be accomplished, according to the CIA, if there are additional resources, which this bill provides, and if the time for retroactive approval is extended from 3 days to 7 days. With respect to calls originating outside the United States and coming in, we are advised there are simply too many of those to cover, so that on those calls the bill would expedite the judicial review which is currently in process. A Federal court in Detroit has declared the President's program unconstitutional, and it is now pending in the Sixth Circuit. This bill would mandate review by the Supreme Court of the United States and would put review in the Federal courts on an accelerated timetable. There are objections to proceeding with legislation along this line because of an interest in having hearings. Well, we have had a whole series of hearings, and the administration has refused to tell the Judiciary Committee the details of the program. Under our division of authority, it is the Intelligence Committee which has jurisdiction over this kind of a program. But, we could proceed with hearings and still enact legislation which would provide constitutional protection for calls originating in the United States, which is the more serious category. Citizens here, people here in the United States, would have individual warrants and a judicial determination of probable cause before the surveillance and the wiretaps were put into effect. Meanwhile, the program goes on. It has been going on since late 2001. It has been known to the public since December 16, 2005. And each day that passes, there are more taps, there are more searches and seizures, there is more surveillance, which may not comport with constitutional provisions. There may be the motivation to show that the President has broken the law. And there is no doubt that the surveillance program does violate the Foreign Intelligence Surveillance Act of 1978. But the President contends that he has inherent article II power as Commander in Chief which supersedes the statute. And he may be right about that. But only a court can determine. And under the existing standards, the court must make a determination of the nature of the invasion of privacy contrasted with the importance for the public welfare of providing security. That is a judicial function. It seems to me that where you have an avenue to have probable cause established in the traditional way on calls going out of the United States, we ought to utilize it. We ought not to have that program continue in effect without having that kind of constitutional procedure. And then, as to calls originating outside of the United States, if the President is right, that can be determined by the courts. Let that proceed in that manner. And, the justification for delay--that we need to show the President of the United States has violated the law--is a wholly insufficient justification to withhold legislation that would be a major improvement to this surveillance program. We can conclude, in my view, that he has violated FISA. But to repeat--and I do not like to repeat--he may have the constitutional authority for the surveillance program, but that has to be determined by a judicial proceeding. Mr. President, I ask unanimous consent that a copy of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, we are due to vote in 2 minutes on the cloture motion to cut off debate so we can proceed to a vote on the nomination of Kent A. Jordan to serve on the U.S. Court of Appeals for the Third Circuit. Kent Jordan now is Judge Jordan on the U.S. District Court for the District of Delaware. He has an outstanding academic and professional record. He graduated cum laude from the Georgetown Law Center. Judge Jordan was nominated to serve on the U.S. Court of Appeals for the Third Circuit on June 28, 2006. A hearing was held for his nomination on September 6, 2006. His nomination reported out of the Judiciary Committee with a favorable recommendation on September 26, 2006. In 1981, Judge Jordan received his BA from Brigham Young University, where he graduated with high honors. In 1984, he received his JD from the Georgetown Law Center, where he graduated cum laude. Following law school Judge Jordan served as a law clerk to the Honorable James L. Latchum, U.S. District Judge for the District of Delaware. After his clerkship, he entered private practice as an associate at Potter Anderson & Corroon. From 1987 to 1992, he served as an Assistant U.S. Attorney in the U.S. Attorney's Office for the District of Delaware, where he became the office's lead attorney on civil matters and served as lead and cocounsel on a variety of criminal matters. He then joined Morris James Hitchens & Williams as an associate in 1992, becoming a partner in 1994. While at the firm he handled intellectual property, corporate, and commercial litigation. From 1998 to 2002, he served as vice-president and general counsel for the Corporation Service Company in Wilmington, DE. In 2002, he was nominated and confirmed as a district judge for the District of Delaware, where he still sits. Judge Jordan is also a scholar who teaches as an adjunct professor at three law schools: the University of Pennsylvania, Vanderbilt, and Widener. Judge Jordan has spoken and published articles on intellectual property, civil procedure, advocacy, and professional responsibility. He has also contributed chapters to several legal titles, including two manuals used in the Third Circuit: ``Federal Appellate Procedure ``and'' Federal Civil Procedure Before Trial.'' Judge Jordan has received a unanimous ``well qualified'' rating from the American Bar Association. Mr. President, I ask unanimous consent that his resume and a full statement of his accomplishments be printed in the Record.

Mr. SPECTER. Mr. President, in the 30 seconds remaining, I urge my colleagues to proceed to vote on the nomination of Judge Jordan and also on the pending nominations of some 13 district court judges, all of whom have been reported out favorably by the Judiciary Committee. Regrettably, the Senate does not focus as much attention on these judgeships as I think it should. The distinguished Presiding Officer has a judge on the docket from the State of Georgia. And with the enormous business pressures we have--on Iraq and on taxes and on appropriations--there is too little attention on judges. When a judge is not present on the Third Circuit, and currently there are four vacancies on that circuit, they have a judicial emergency situation. Their docket is clogged and people have to wait a long time to have their cases heard. Similarly, if there is not a judge sitting in Georgia or in Ohio, where Senator DeWine and Senator Voinovich want a nominee confirmed, people are prejudiced and disadvantaged. And from the Western District of Michigan, a Congressman was over yesterday, urging Senators to move ahead on the three pending nominations in that district. I ask that every step be taken at every level of the Senate to confirm these judges. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss a number of matters briefly. Honoring Senatorial Service Bill Frist First, I want to join my colleagues in paying tribute to our majority leader, Senator Bill Frist, who has done such an outstanding job in the past 12 years. Senator Frist came to this Senate as a real all-American. He has displayed extraordinary talents, academically, professionally, public service, as a family man, as a friend, at Princeton and Harvard Medical School, a renowned heart and lung transplant surgeon, then selected to be the majority leader and has taken this body through a very difficult 4 years and a very productive 4 years. A great deal has been said about Senator Frist earlier today. I just wanted to add my personal congratulations to him on his service and to wish him well. Rick Santorum Mr. President, I regret the departure of my distinguished colleague, Senator Rick Santorum. He has been really a ball of fire in the U.S. Congress. He was elected in 1990 to the House of Representatives, defeating a long-term incumbent by literally going door to door in his district in the Pittsburgh area. He was elected to the U.S. Senate in 1994, reelected in the year 2000, and has displayed admirable qualities--energy, determination, confidence, and the pursuit of his own personal values. There is no doubt that Senator Santorum has espoused, articulated, and pushed causes he deeply believed in which may not have been popular in many quarters, but he was determined to undertake the pursuit of those values because he believed in them so deeply. I counseled him from time to time to save some of his philosophy for December of the year 2006. A famous quotation about President Lincoln; he was asked by a little boy, in effect: How do you serve, Mr. President? He said: I represent my true beliefs and values 90 percent of the time. The little boy said: Well, what about the other 10 percent? The famous statement by President Lincoln: So that I can represent my true values 90 percent of the time. It is not unknown in our body to occasionally defer some of the more controversial positions. But Senator Santorum didn't do that. He spoke his mind and he spoke his heart. Those are rare qualities in public life and public service and in politics. For that, I salute him. On a personal level, Rick and I have had a superb relationship, not only professionally, not only politically, but also personally. A more devoted family man could not be found. He has taken this turn of electoral results philosophically and in a good spirit. I have had some experience on the losing end of elections and, having been there, I say that he has responded with great class, with great style. His comment earlier this week was: Tough on the family, tough on Karen, tough on the children, but now they have their husband back, and they have their father back. And he had a big smile and a sense of satisfaction. He spoke to the caucus yesterday, and he exuded confidence. He exuded personal pride in what he had done. I join him in that. As a colleague, I personally will miss him very much. I know that will be the sentiment of this body, even those with whom he has tangled in a rigorous way. Confirmation of Judges Mr. President, I urge my colleagues to move ahead with the confirmation of judges. We have U.S. District Judge Kent Jordan, of the District of Delaware, who has been nominated to be a judge on the U.S. Court of Appeals for the Third Circuit. He has been approved by the Judiciary Committee and is ready for floor action. Nobody has anything adverse to say about Judge Jordan. He is endorsed by both of the Delaware Senators, both of whom are Democrats. They have a judicial emergency in the Third Circuit, and he ought to be confirmed. We also have a list of some 13 district court nominations pending on the executive calendar. I ask unanimous consent that the list be printed at the conclusion of my remarks.

Mr. SPECTER. A good number of these nominees are also in districts where there are judicial emergencies. I think that from time to time we in the Senate, where we have the responsibility for confirmation, don't really take seriously enough the impact of judicial vacancies. The courts are busy. The Third Circuit, my circuit, is overwhelmed. District Court Judge Jordan ought to be confirmed. My colleagues have told me about the problems posed by vacancies in their states. If these other 13 districts nominees are not confirmed today, they will languish until who knows--January turns into February and February in March. We always find a reason around here not to do something. That applies most emphatically to the judges. It is my hope that in the 110th Congress, we will approach judicial confirmations a little differently. I have already consulted with Senator Leahy, who will become chairman of the committee. Senator Leahy and I have had an excellent working relationship on a bipartisan basis, and the record shows it. I don't have to go into detail about that. I have recommended to the White House that the it consult with Senator Leahy and the Democrats, as well as with Arlen Specter, as ranking member, and the Republicans. There is a limited amount of time. We know what happens in a Presidential election year. Let us make a determination about which judges can be confirmed-- judges who meet the standards and criteria of President Bush but who also pass muster in the U.S. Senate on both sides of the aisle. We have had vacancies for interminable periods of time. I have discussed this with Senator Leahy and with the White House. I hope we approach the 110th Congress differently. And before this Congress adjourns, the 109th, I hope we will confirm these judges who are on the calendar awaiting floor action. Exhibit 1 Judicial Nominees Pending on the Senate Floor The following nominees were all reported out of the Judiciary Committee prior to the October recess. Eight of the 14 nominees on the floor are in districts where judicial emergencies have been declared. ---------------------------------------------------------------------------------------------------------------- Nominee Position Date Nominated Total Days Pending ---------------------------------------------------------------------------------------------------------------- Circuit: *Kent A. Jordan............... Third Circuit............. 6/29/2006 161 District: Valerie Baker................. Central District of 5/4/2006 217 California. Nora Barry Fischer............ Western District of 7/14/2006 146 Pennsylvania. Gregory Frizzell.............. Northern District of 6/7/2006 183 Oklahoma. *Philip Gutierrez............. Central District of 4/24/2006 227 California. Marcia M. Howard.............. Middle District of Florida 6/6/2006 184 John A. Jarvey................ Southern District of Iowa. 6/29/2006 161 *Robert J. Jonker............. Western District of 6/29/2006 161 Michigan. Sara E. Lioi.................. Northern District of Ohio. 7/14/2006 146 *Paul L. Maloney.............. Western District of 6/29/2006 161 Michigan. *Janet T. Neff................ Western District of 6/29/2006 161 Michigan. *Lawrence J. O'Neill.......... Eastern District of 8/2/2006 127 California. *Leslie Southwick............. Southern District of 6/6/2006 184 Mississippi. *Lisa Godbey Wood............. Southern District of 6/12/2006 178 Georgia. ---------------------------------------------------------------------------------------------------------------- *Indicates a Judicial Emergency. attorney-client privilege protection act

Mr. SPECTER. Mr. President, I introduced legislation which will modify practices of the Department of Justice on the attorney-client privilege where the Department of Justice, acting under a memorandum called the Thompson Memorandum by Deputy Attorney General Thompson, has initiated a policy where requests are made to waive the attorney-client privilege, and if the attorney-client privilege is not waived, then that is considered in the charges brought by the Federal Government, and also a commitment that corporations will not pay counsel fees for their employees whom they are customarily expected to defend. This is an encroachment and a violation of the sixth amendment right to jury trial. Because of the limited time and other Senators waiting, I will not elaborate upon the provisions of this legislation. I ask unanimous consent that a summary of the bill and the text of the bill be printed in the Record.

Mr. SPECTER. I well understand that there will be no action on this matter during this Congress, but I want to put it into the public milieu so there can be comment about it and it will be pursued in the next Congress. The Department of Justice has advised that they are going to revise the Thompson Memorandum to a memorandum called the McNulty Memorandum from the Deputy Attorney General. I had hoped we would have had it before the Senate went out of session so that we could have reviewed it and perhaps accepted their work, but it is not ready. I have advised Deputy Attorney General Paul McNulty and also Attorney General Gonzales that this legislation would be introduced and we can work on it in the next Congress. Hedge Funds

Mr. SPECTER. Mr. President, I will include for the Record proposed legislation to deal with hedge funds. The Judiciary Committee has had a series of hearings on this important subject, now $1.3 trillion in the economy, 30 percent of the stock transactions. After reflecting on the matter, I have decided not to introduce the legislation but simply to put the draft bill in the record so that there can be further comment. I talked about this proposed legislation earlier this week and had said that I was going to introduce the legislation, but I want to give interested parties more time to comment on it. I ask unanimous consent that a summary of the bill and the bill itself be printed in the Record. I am not introducing the bill. I do not look for a Senate bill number on it. But it will be in the public record, and there will be more time for people in the profession to evaluate and comment upon it.

Mr. SPECTER. Mr. President, I urge the confirmation of Dr. Andrew von Eschenbach to be Commissioner of the Food and Drug Administration. Dr. Von Eschenbach is a native Philadelphian. He has had a very distinguished professional record. He has served as the director of the National Cancer Institute. He has made a commitment publicly to lead the way to conquer cancer by the year 2015. Frankly, that is not good enough for me. I think we ought to do it sooner. In 1970, President Nixon declared war on cancer. Had we pursued that war with the same diligence we have pursued other wars, many people would not have died and many people would not have contracted cancer. Dr. Von Eschenbach has done an outstanding job in his professional career, and he would make an excellent Commissioner of the FDA. I ask unanimous consent that my statement of his qualifications and background be printed in the Record.