Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to express my support for the nomination of Robert Gates to be Secretary of Defense and to use this occasion to comment about the proposed changes in policy of the United States in the conduct of the war in Iraq. When Robert Gates was nominated to be Director of the Central Intelligence Agency in 1987 and I was serving on the Intelligence Committee at that time, concerns were expressed, including mine, that Mr. Gates had not been forthright in the preparation of the testimony of then-CIA Director Casey in disclosures about what happened in the Iran-Contra affair. Mr. Gates withdrew as a nominee for CIA Director at that time. However, he was again nominated in 1991 by President George H.W. Bush, and at that time I supported his nomination, thinking that whatever mistakes Mr. Gates had made in the past, he had learned from those mistakes. President George W. Bush has now nominated Robert Gates to be Secretary of Defense. I believe he is well qualified to undertake this position. He has testified before the Armed Services Committee that he does not intend to be a bump on a log, has asserted his independence, told me in a meeting which we had last week on November 30th that he would bring a fresh pair of eyes to the situation and would be open to change. There is no doubt that change is in the wind, considering the memorandum which has surfaced, written by Secretary of Defense Donald Rumsfeld the day before the election, and from comments made by National Security Adviser Stephen Hadley, and comments made by the President himself. It is my view that had we known Saddam Hussein did not have weapons of mass destruction, we would not have gone into Iraq. Once we had made the decision to go into Iraq, I think it not advisable to withdraw and leave Iraq in a condition of instability. But the situation there cannot go on forever, interminably, without some limitation and without change of policy because, as Robert Gates put it, we are not winning there and the situation is not improving there. So there has to be some change. Precisely what that change should be is a matter yet to be resolved, and yet to be considered. But a long list of alternatives has been proposed in a number of quarters. Today, the commission, led jointly by James Baker and Lee Hamilton, has issued a report calling for some very fundamental changes. The Rumsfeld memorandum outlines a number of alternatives. One of the important recommendations which was made by the Baker- Hamilton commission is that there has to be involvement by other nations in the region, especially Saudi Arabia, with all of its wealth, maintaining a hands-off position, and they ought to be helping to resolve the problems there. The Baker-Hamilton commission has further recommended that the United States engage in negotiations with both Iran and Syria perhaps on a multilateral basis. My own view, which I expressed in an extended floor statement last June, is that the United States ought to negotiate directly with Iran. I also believe we ought to negotiate directly with Syria. In my June statement I also broadened to consideration of direct negotiations with North Korea. As I said at that time and reiterate, as has been pointed out, we need to keep our friends close and our enemies closer; that if we would undertake a dialog showing respect, showing courtesy to our opponents--we do not have to agree with them--I think that diplomacy and dialog have an excellent opportunity to lead to a solution; and, certainly as a matter of first impression, it ought to be what is undertaken. It is my hope the President will move in the direction cited by the Baker-Hamilton commission and will go even further and engage in direct negotiations with Iran, Syria, and North Korea. In October, I publicly urged that changes should be made promptly and not wait until after the election because we were sustaining so many casualties on an ongoing basis. On October 22, during an interview with CNN, I was asked how much time does the Iraqi Prime Minister have to get tough to deal with the death squads and the militias before the United States has to reassess its strategy. I replied that I would say the time is already past. I was encouraged by a lead story in the New York Times that day that the administration was considering some timetables. President Bush said in his Saturday address the day before that he was prepared to be flexible to make adjustments, if necessary, to be victorious. I said then that I don't believe a shift in tactics ought to wait until after the election; that there are too many casualties; and that if we had a better course, we should adopt it sooner rather than later. When Senator Warner came back from a trip to Iraq several weeks before the election and was quoted to the effect that things were going sideways, I called him and suggested to Senator Warner and to other of my colleagues that it might be useful and appropriate to have a joint statement to the President as to the views that we got from our travels to our States and from our travels generally. It was apparent to me weeks before the election--really months before the election--that there was an ongoing descending pattern in which the American people were not in support of United States policy in conducting the war in Iraq. And the public opinion polls cited in my formal statement, which I will introduce into the Record, have shown that. The attitude of the troops in the field--again the specifics of my formal statement had shown that. It was my view that the will of the American people would be expressed at the election, and in no uncertain terms repudiating what the United States was doing in Iraq. And, of course, that did prove to be the case. I had been concerned back in 2002 before the vote was taken on the resolution for the use of force as to what the United States was prepared to do once Saddam Hussein was toppled. What were the specifics on the evidence of weapons of mass destruction; what will be the costs in terms of casualties; and what will happen? I was speaking in 2002 about the conflicts among the Sunnis, the Shiites, and the Kurds. Now we have a situation where it is up to the President to make the decision as to what will be done specifically; and that is his role as Commander in Chief. But the Congress also has a very definite, a very precise, and a very important role as we undertake the appropriations process. From time to time there are comments by Members on a wide variety of subjects that funding should be cut off from executive operations in order to carry out Congress' will. That is done in the appropriations bill. When a Secretary of a given department is about to undertake something which the Members of Congress do not like, we provide that no funds appropriated in the bill shall be used to carry out a specific function. There has been a suggestion that funding ought to be cut off for the activities in Iraq. Certainly we would not cut off funding to leave our troops in harm's way, without adequate resources to carry out their mission. However, there may develop a congressional consensus which would reflect the will of the American people that there needs to be something done in Iraq, perhaps even staged withdrawals. Cutting down funding in stages to effectuate such staged withdrawals could accomplish congressional objectives and not leave our troops exposed, with sufficient planning in advance. In light of the public opposition to the way we are conducting the war in Iraq, and very significant agreement among Members with that demonstrated public response, there remains the possibility that Congress could act with respect to the appropriations function to effectuate changes. That is certainly a course which I would not like to see happen. It would be vastly preferable if, as a result of what has happened, including the Baker-Hamilton commission report and what Secretary Rumsfeld has said and the new approach of Secretary-to-be Gates--I think he will be confirmed later this afternoon--that the President will make a sufficient change in policy which will lead us in a better path. Certainly the continued presence of U.S. troops in Iraq has two major problems--at least two major problems. First, it incites the insurgents to attack U.S. troops; second, it allows the Iraqis to continue to rely upon the United States to provide a defense and to provide military protection. They do not have the motivation to increase their police force and their military to handle the jobs themselves. The public opinion polls cited in my prepared statement are shocking in that the people in Iraq approve of the attacks against U.S. soldiers. We are in a very uncomfortable position. In essence we may be on a watershed mark today with the confirmation of Robert Gates to be Secretary of Defense on a day when the Baker- Hamilton report has been filed which makes recommendations for changes. Ultimately, the President will have to make the decision. We debated earlier this year proposals to have a withdrawal by stages in 2007 without a specification as to what there would be. We had a vote on withdrawal by July of 2007 which was decisively defeated, getting only 13 votes. The temper of the country is such that there is widespread public opposition to what is being done by the United States by way of military action in Iraq today. We learned the bitter experience of the Vietnam war, that we cannot conduct a war which is unpopular with the American people, which the American people reject. In voting to confirm Mr. Gates, we will see the possibilities of a new chapter. But it is up to the President, it is up to the Commander in Chief to structure a change in policy which will ultimately take our troops out of harm's way, which will be done in a way consistent with maintaining stability in Iraq to the maximum extent possible to set the stage for Iraq to continue to develop its incipient democracy and, as per the Baker commission report, perhaps embed troops with the Iraqi military and the Iraqi police so they can undertake their own defense. But that will require the change in policy with all of the options having been presented by the variety of sources which I have cited. I ask unanimous consent that the full text of my prepared statement be printed in the Record.

Mr. SPECTER. I further ask unanimous consent that an essay which Christopher Bradish and I published in the current issue of the Washington Quarterly which goes into some greater detail about my own views as to the advisability of bilateral talks with Syria and Iran, as well as North Korea, be printed in the Record.

Mr. SPECTER. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment about the appropriations bill covering the Departments of Labor, Health and Human Services, and Education. It had been my hope that before we finished our work in the 109th Congress we would address an appropriations bill on the very important subjects covered by those three major departments--the Department of Labor, the Department of Health and Human Services, and the Department of Education. It appears at this juncture that we will not be taking up that bill, and I think it is very regrettable. Conceivably we could still act, having the balance of this week, and we could be in session next week, but I understand that does not appear to be the will of the Senate to proceed. It is unfortunate because there are a great many priorities which ought to be revised in that budget, which approximates $147 billion. We have had a decrease in funding for cancer. As tough as that malady is in the United States, and as many people as it claims, we now find that we have $50 million a year less for the National Cancer Institute. We find that there has been a decrease in the funding for the National Institutes of Health generally, which is unacceptable. Senator Tom Harkin and I, as chairman and ranking--we change gavels from time to time on that, and we are about to do so again, but we called it a seamless exchange of the gavel--have worked with leadership to increase the funding for the National Institutes of Health from $12 billion in 1995 to the current recommended funding level of $28.5 billion. Enormous advances have been made in combating Alzheimer's, Parkinson's, heart disease, cancer, and so many other maladies. We need to reevaluate many of the other programs in the health field, and in education funding for GEAR UP mentoring program. We need some rescission in appropriations on No Child Left Behind. We need revisions on worker safety. It is totally unsatisfactory to leave the 109th Congress with our having completed action on only 2 of 12 appropriations bills. Ten bills are unattended to. Only the Department of Defense appropriations bill and Homeland Security will have been acted upon, which is not adequate for our responsibilities on these very important subjects. We had a series of hearings to investigate and inquire into how we ought to spend the money for the Department of Education. Now we are not permitted to act on those recommendations and to reassess the priorities and the interests of the American people. Chairman Regula of the House of Representatives and I have tried to conference on an informal basis. But I think it is most unfortunate that we are not able to complete this bill. It is my hope that we will take up the bill early in the 110th Congress. The new majority leader has outlined an ambitious work schedule. This ought to be a priority item to take up. I have been on the Appropriations Committee for all of my tenure in the Senate, ending my 26th year. We need to do better when we take a look at the appropriations process next year. Similarly, it had been my hope that we would have moved on the legislation to provide protection for civil liberties on the surveillance program put into effect by the President, which is designed to protect America from another terrorist attack and to balance security interests versus privacy interests. When this program was disclosed on December 16 of last year, almost a year ago, we moved ahead in the Judiciary Committee to have a series of hearings to try to find a way to have judicial review in accordance with the tradition and concept in the United States, having the impartial magistrate between the Government and the person subject to surveillance, to search and seizure, or to wiretapping. The initial legislation would have given that authority to the Foreign Intelligence Surveillance Court, which was selected because of the expertise that court has and because they can maintain secrecy. In my legal opinion, there is no doubt that the administration program violates FISA, the Foreign Intelligence Surveillance Act. But the President has asserted that there was article II power, inherent powers as Commander in Chief, which warrants this program without--justifies this program without warrants. I cosponsored legislation introduced by the senior Senator from California, Mrs. Feinstein, which would extend the time for retroactive approval by the FISA court in 3 to 7 days and would increase the resources so that according to General Alexander, the head of NSA, there were such resources to have individualized warrants for calls originated in the United States and going outside the United States. According to General Alexander and the National Security Administration, and General Hayden his predecessor, there are too many calls coming from outside and in to have individualized warrants. But it would be an enormous step forward for civil liberties to have the individual warrants for calls originating in the United States and going out. As to the calls originating outside the United States and coming in, let's have the judicial determination made as to whether the President is correct that he has article II powers. That can only be determined by the court, weighing the invasion of privacy on the one hand against the interests of security on the other. The legislation which I introduced, S. 4051, modifies earlier versions, modifies the so-called Feinstein-Specter bill by recognizing the changing circumstances where a number of district courts have taken up the issue in the U.S. District Court in Detroit to declare the surveillance program unconstitutional. It is now in the Sixth Circuit. Let the process proceed to have the adjudication as to whether the President is right that there are article II powers or whether there is a violation. The legislation which I have introduced, S. 4051, on November 14, provides further for mandatory review by the Supreme Court and expedited review. If we would focus on this issue, we could come to grips with it and we could legislate. Every day that passes there is incursion on civil rights and constitutional rights because there are wiretaps which are not supported by affidavit or probable cause and court authorization. We have it within our power to alter that today if we would come to grips with the issues on all the calls originating in the United States and going out and then, to repeat, to allow the court to decide whether the President is correct on whether calls outside coming in are covered by his article II powers. It is my hope that this legislation will be taken up early in the next session because we ought to come to grips with the balance of rights versus security.

Mr. SPECTER

Mr. SPECTER. Mr. President, earlier today the Judiciary Committee held a hearing on hedge funds and what is happening in that important area where we now find that we have an area in the securities field which involves some $1.3 trillion, some 30 percent of the stock trading, and no regulation. The Judiciary Committee held hearings contemporaneously with the consideration of Sarbanes-Oxley and that legislates in the field to deal with criminal sanctions for insider trading violations. The issue which we took up in some detail in the Judiciary Committee today involves allegations that there was insider trading, a matter yet to be resolved. But out of the Judiciary Committee inquiry, draft legislation has been circulated which has three very important provisions. First of all, on criminal jurisdiction there are Federal decisions which have precluded the Department of Justice from collaborating with the Securities and Exchange Commission. The draft legislation which has been circulated would authorize that. There is no reason the SEC and the Department of Justice should not be able to collaborate when they find evidence of criminal conduct to act to prosecute. The second provision of the draft legislation would authorize more compensation for whistleblowers. The fact is, the SEC is doing very little by way of encouraging whistleblowers to bring forward insider information and to stop insider trading. The legislation would authorize the Attorney General to provide for compensation up to 30 percent for whistleblowers from a penalty, fines or settlement, and also protection for the whistleblowers. The third provision in the draft legislation which has been circulated would provide for regulations on small investors who do not have the sophistication to conduct due diligence and also for pension funds which are invested in hedge funds. The testimony of the attorney general from Connecticut, Richard Blumenthal today went into some detail about how the failure of Amaranth recently, which amounted to some $6.5 billion, touched pension funds and many of the small investors. We have circulated this legislation, and we will be asking for comments. I thought I would describe it very briefly this afternoon. It will be introduced formally as soon as we have had an opportunity to get comments from interested parties. (The remarks of Mr. SPECTER pertaining to the introduction of S. 4081 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER

Mr. SPECTER. Mr. President, I introduce legislation which is captioned ``Habeas Corpus Restoration Act of 2006'' which I introduced on behalf of myself and Senator Leahy. The legislation which was adopted earlier this year on war crimes struck out habeas corpus jurisdiction of the Federal courts, sought to limit jurisdiction of the Federal courts on habeas corpus for Guantanamo detainees and others detained on charges of being enemy combatants or war criminals. There was very extended debate on the issue at that time. The bill reported by the Armed Services Committee and backed by the administration eliminated the jurisdiction of the Federal courts. I offered an amendment to reinstate habeas corpus. It was defeated 51 to 48. This legislation would reinstate habeas corpus jurisdiction of the Federal courts. It is my view that the Federal courts will strike down the provisions in the legislation eliminating Federal court jurisdiction for a number of reasons. One is that the Constitution of the United States is explicit that habeas corpus may be suspended only in time of rebellion or invasion. We are suffering neither of those alternatives at the present time. We have not been invaded, and there has not been a rebellion. That much is conceded. There has been an effort made to contend that those constitutional rights are maintained with the very limited review which goes to the Court of Appeals for the District of Columbia. In the limited time I have today I will not go into great detail during the course of the argument as it appears in the Congressional Record as to why that does not maintain the traditional constitutional right of habeas corpus, a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede. The Supreme Court of the United States in the Hamdi case made it plain that these habeas corpus rights apply to aliens as well as to citizens. The administration has taken the position now that someone who is making a charge of having been tortured, which is a violation of U.S. law, may not be permitted to disclose the specifics of his interrogation which he says constituted torture because al-Qaida will find out what our interrogation techniques are and will move to train their operatives so they can withstand those interrogations. It is unthinkable, in my opinion, to have a system of laws where someone who claims to have been tortured cannot describe what has happened to him to get judicial relief because al-Qaida may be able to educate or train their operatives to avoid those techniques. I supported the ultimate legislation on war crimes tribunals because it provided for recognition of the Geneva Conventions. It also provided for confrontation. It also provided for limitations on interrogation techniques. It was my view as I expressed it at the time that with the severability clause the Federal courts would eliminate the restriction on their jurisdiction. But as a precautionary matter, to put the matter in issue, this legislation is being introduced at this time. I ask unanimous consent that the summary of the Habeas Corpus Restoration Act of 2006 be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask that the full text of S. 4051, the ``Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2006,'' be printed in the Record. The text of the bill follows.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter and Mrs. Feinstein pertaining to the introduction of S. 4051 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Quorum Call

Mr. SPECTER. Mr. President, I yield the floor, and I suggest the absence of a quorum.

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

Mr. SPECTER. Mr. President, I note that the majority leader is on the Senate floor. I am prepared to speak for just about 5 minutes, if that is acceptable. I thank the majority leader, and I thank the Senator from North Dakota. THE PRESIDING OFFICER. The Senator from Pennsylvania is recognized.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which I have captioned as the ``Foreign Intelligence Surveillance Oversight and Resource Enactment Act of 2006.'' This is a modification of legislation which had been introduced by the Senator from California, Mrs. Feinstein, and myself and passed out of the Judiciary Committee. If it is in accordance with the rules, I ask that this bill be held at the desk. The purpose of this legislation is to provide for oversight on the administration's electronic surveillance program which has been in effect for many years and which was publicly disclosed in mid-December last year. We now are at a state where the provisions of earlier legislation which I introduced, which would call for judicial review by the Foreign Intelligence Surveillance Court, are no longer necessary. Events have overtaken the situation, with litigation having been started in a number of district courts, and a decision has come out of the U.S. district court in Detroit. The issue is now on appeal to the Sixth Circuit, and there is no longer any need to provide for a referral to the Foreign Intelligence Surveillance Court because the matter is now in litigation and will be carried through on the appellate process. The legislation which I am introducing tracks the Feinstein-Specter bill in that it provides additional resources to the administration. It expands the time when the administration can get approval for an electronic surveillance that has already been accomplished. With these additional resources, I am advised that the NSA will be in a position to have individual warrants for all calls which originate in the United States and go overseas. The bill does not touch the calls which originate overseas and come through checkpoints or transmission in the United States and go back overseas, where both the point of origin and the point of conclusion is overseas. And, we do not deal with calls which originate overseas and come into the United States. The President has contended that notwithstanding the provisions of the Foreign Intelligence Surveillance Act that it is the exclusive way to get a wiretap warrant, he has article II power. And, there will be a test of that in the court system, which is now underway. That test will involve what the courts have said is the balancing test: the invasion of privacy versus the value for law enforcement and for national security. So that as to calls to repeat--when they originate overseas and come into the United States, that will be the issue which will remain to be tested. This proposal does not deal with the existing language that the Foreign Intelligence Surveillance Act is the exclusive remedy, nor does it deal with any assertion about the article II power of the President. It has been my view, expressed on the floor on a number of occasions, that the article II power is what it is, congressional power is what it is, and if there is genuine article II power, then it supersedes an act of Congress because the Constitution trumps an act of Congress. This legislation does not deal with those issues which had created what I thought was a needless controversy. The bill further provides that there will be review by the Supreme Court of the United States. I think there doubtless would be review by the Supreme Court as a matter of course, but in order not to take any chance on that, Congress has the authority to mandate review with the Supreme Court, and this bill does that. In addition, the legislation provides for expedited review so that there will be a judicial determination as to the constitutionality of what the President has done with respect to the calls originating overseas and ending in the United States. I think this bill is a significant advance in protecting civil liberties by having individualized warrants on calls which originate in the United States and which go overseas. We have had this electronic surveillance in existence for a long time. The effort which I have made has been to have it subjected to judicial review, and it is my hope that this stripped-down legislation, which does enhance civil liberties by providing for individual warrants on calls originating in the United States and expedited review in the Federal courts and expedited review by the Supreme Court, would be acceptable. We have time yet in this session this year to legislate on this important subject.

Mr. SPECTER. I yield.

Mr. SPECTER. Mr. President, the exclusive authority of FISA remains. This bill does not touch that. FISA is now the law of the land, and FISA says that it is the exclusive remedy for wiretapping. This legislation which I am introducing does not alter that, so it remains as provided in FISA that the Foreign Intelligence Surveillance Act is the exclusive remedy for wiretapping.

Mr. SPECTER. It does not deal with program authority at all. That was in the original legislation that I introduced as a way of getting the Foreign Intelligence Surveillance Court to review the program. But this does not deal with that, and it does not give the President any enhanced authority at all to conduct warrantless wiretaps. The bill doesn't deal with that. Whatever authority the President has under article II, he has. What this bill does is submit for expedited review by the Supreme Court a determination as to whether the President has article II power to have a warrantless wiretap with a call that originates overseas and ends in the United States.

Mr. SPECTER. To repeat, the bill I am introducing does not touch that point. The bill I am introducing leaves the status quo on that point, and that is where some contend that it is illegal to have a wiretap where the call originates outside the United States and comes inside. The contention is made that it's governed by the Foreign Intelligence Surveillance Act and is, therefore, illegal. The President has a different argument. He is asserting article II power as Commander in Chief, and he says that his article II power, constitutional power, supersedes or trumps a statute. Whether he is right or wrong depends upon a judicial interpretation. Only the court can weigh, as the existing law is in this area, whether the importance of national security outweighs the invasion of privacy, and that determination is reserved for the Federal courts. We are now having that determination in the Detroit case, ACLU v. NSA, where the district judge says it is unconstitutional and the Sixth Circuit now has taken the case. They have issued a stay, in effect, but they will take up the case on the merits. Once the litigation is this far advanced, we are not now in the situation we were in last December when the Judiciary Committee, as the Senator from California knows, had four hearings and I had a bill to submit to the Foreign Intelligence Surveillance Court. That is bypassed now. Events have overtaken it. This will provide for judicial review. It is my thought--and the Senator from California and I have talked about this again and again and have worked on her bill which I supported, voted out of committee 10 to 8 with 2 Republicans and 8 Democrats--this will expedite a determination as to whether all those calls originating overseas and coming in are or are not constitutionally tapped. And, it will help out with what the Senator from California has been the leader on--and that is to have individualized warrants for calls originating in the United States. That is a big advance on civil liberties if those calls are not tapped without a warrant.

Mr. SPECTER. Mr. President, it would be my hope that we could act on it this session. I say that, subject to review by the Senator from California and by other Members and by the House of Representatives. The Senator from California and I and others have thought about this issue long and hard. This bill is a real effort to try to accommodate all of the concerns the Senator from California has raised. That is to maintain the status of the Foreign Intelligence Surveillance Act as the exclusive way to wiretap. That stands. There is no statement about the authority of the President under article II, which had been objected to before. As I say, whatever the constitutional authority is, it is, regardless of what the bill says, but this bill says nothing about that. It says nothing. The Senator from California and I have wanted to have individualized warrants wherever we could get them, and now the Senator from California took the lead on this. She has had access to this program, where I have not, because she is on the Intelligence Committee. It is anomalous that the chairman of the Judiciary Committee would not know the program, but I respect the division which gives that intelligence to the oversight committee. But she and I both wanted to have individualized warrants everywhere if we could get them. And, now we know we can get them on calls originating in the United States if we add the resources that were in the legislation crafted initially by the Senator from California, which I joined, which passed out of committee and onto the floor. And it does not deal with the ones overseas into the United States. Whatever authority the President has on that, he is going to have to assert in Federal court and satisfy ultimately the Supreme Court that he has that article II power. My view is the sooner we have this determination, the better off we are.

Mr. SPECTER. Mr. President, I am glad to respond, and I thank the Senator from California for the question. It would achieve individualized review of warrants on calls originating in the United States, and there are a lot of them. How many there are, I don't know, but the NSA officials have told us that if we give them the additional resources, which was suggested originally by the Senator from California and which I concur in on the Feinstein-Specter bill, that they could have individualized warrants. And, I think that would be a big step forward on civil rights.

Mr. SPECTER. Mr. President, my bill does not exempt them. My bill just doesn't deal with them. Some say that FISA controls them and, therefore, they are illegal. The President says: No, he has article II power. And the only way that controversy can be resolved is in a Federal court, which will weigh them. And the Federal court in Detroit weighed them and said it was unconstitutional. And the Sixth Circuit has said they will review it. In the meantime, the program stands. But as the program stands, all of these warrantless wiretaps are going on and on and on. And we go one step further. We make sure the Supreme Court will take the case. We also have power in the Congress to expedite the review, set a timetable to get it done faster.

Mr. SPECTER. I thank the Senator from California for the colloquy which has further explained the bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which I have captioned as the ``Foreign Intelligence Surveillance Oversight and Resource Enactment Act of 2006.'' This is a modification of legislation which had been introduced by the Senator from California, Mrs. Feinstein, and myself and passed out of the Judiciary Committee. If it is in accordance with the rules, I ask that this bill be held at the desk. The purpose of this legislation is to provide for oversight on the administration's electronic surveillance program which has been in effect for many years and which was publicly disclosed in mid-December last year. We now are at a state where the provisions of earlier legislation which I introduced, which would call for judicial review by the Foreign Intelligence Surveillance Court, are no longer necessary. Events have overtaken the situation, with litigation having been started in a number of district courts, and a decision has come out of the U.S. district court in Detroit. The issue is now on appeal to the Sixth Circuit, and there is no longer any need to provide for a referral to the Foreign Intelligence Surveillance Court because the matter is now in litigation and will be carried through on the appellate process. The legislation which I am introducing tracks the Feinstein-Specter bill in that it provides additional resources to the administration. It expands the time when the administration can get approval for an electronic surveillance that has already been accomplished. With these additional resources, I am advised that the NSA will be in a position to have individual warrants for all calls which originate in the United States and go overseas. The bill does not touch the calls which originate overseas and come through checkpoints or transmission in the United States and go back overseas, where both the point of origin and the point of conclusion is overseas. And, we do not deal with calls which originate overseas and come into the United States. The President has contended that notwithstanding the provisions of the Foreign Intelligence Surveillance Act that it is the exclusive way to get a wiretap warrant, he has article II power. And, there will be a test of that in the court system, which is now underway. That test will involve what the courts have said is the balancing test: the invasion of privacy versus the value for law enforcement and for national security. So that as to calls to repeat--when they originate overseas and come into the United States, that will be the issue which will remain to be tested. This proposal does not deal with the existing language that the Foreign Intelligence Surveillance Act is the exclusive remedy, nor does it deal with any assertion about the article II power of the President. It has been my view, expressed on the floor on a number of occasions, that the article II power is what it is, congressional power is what it is, and if there is genuine article II power, then it supersedes an act of Congress because the Constitution trumps an act of Congress. This legislation does not deal with those issues which had created what I thought was a needless controversy. The bill further provides that there will be review by the Supreme Court of the United States. I think there doubtless would be review by the Supreme Court as a matter of course, but in order not to take any chance on that, Congress has the authority to mandate review with the Supreme Court, and this bill does that. In addition, the legislation provides for expedited review so that there will be a judicial determination as to the constitutionality of what the President has done with respect to the calls originating overseas and ending in the United States. I think this bill is a significant advance in protecting civil liberties by having individualized warrants on calls which originate in the United States and which go overseas. We have had this electronic surveillance in existence for a long time. The effort which I have made has been to have it subjected to judicial review, and it is my hope that this stripped-down legislation, which does enhance civil liberties by providing for individual warrants on calls originating in the United States and expedited review in the Federal courts and expedited review by the Supreme Court, would be acceptable. We have time yet in this session this year to legislate on this important subject.

Mr. SPECTER. I yield.

Mr. SPECTER. Mr. President, the exclusive authority of FISA remains. This bill does not touch that. FISA is now the law of the land, and FISA says that it is the exclusive remedy for wiretapping. This legislation which I am introducing does not alter that, so it remains as provided in FISA that the Foreign Intelligence Surveillance Act is the exclusive remedy for wiretapping.

Mr. SPECTER. It does not deal with program authority at all. That was in the original legislation that I introduced as a way of getting the Foreign Intelligence Surveillance Court to review the program. But this does not deal with that, and it does not give the President any enhanced authority at all to conduct warrantless wiretaps. The bill doesn't deal with that. Whatever authority the President has under article II, he has. What this bill does is submit for expedited review by the Supreme Court a determination as to whether the President has article II power to have a warrantless wiretap with a call that originates overseas and ends in the United States.

Mr. SPECTER. To repeat, the bill I am introducing does not touch that point. The bill I am introducing leaves the status quo on that point, and that is where some contend that it is illegal to have a wiretap where the call originates outside the United States and comes inside. The contention is made that it's governed by the Foreign Intelligence Surveillance Act and is, therefore, illegal. The President has a different argument. He is asserting article II power as Commander in Chief, and he says that his article II power, constitutional power, supersedes or trumps a statute. Whether he is right or wrong depends upon a judicial interpretation. Only the court can weigh, as the existing law is in this area, whether the importance of national security outweighs the invasion of privacy, and that determination is reserved for the Federal courts. We are now having that determination in the Detroit case, ACLU v. NSA, where the district judge says it is unconstitutional and the Sixth Circuit now has taken the case. They have issued a stay, in effect, but they will take up the case on the merits. Once the litigation is this far advanced, we are not now in the situation we were in last December when the Judiciary Committee, as the Senator from California knows, had four hearings and I had a bill to submit to the Foreign Intelligence Surveillance Court. That is bypassed now. Events have overtaken it. This will provide for judicial review. It is my thought--and the Senator from California and I have talked about this again and again and have worked on her bill which I supported, voted out of committee 10 to 8 with 2 Republicans and 8 Democrats--this will expedite a determination as to whether all those calls originating overseas and coming in are or are not constitutionally tapped. And, it will help out with what the Senator from California has been the leader on--and that is to have individualized warrants for calls originating in the United States. That is a big advance on civil liberties if those calls are not tapped without a warrant.