Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce a bill to regulate electronic surveillance programs designed to gather intelligence for national security purposes. On Friday, December 16, 2005, the New York Times reported that in late 2001, President Bush signed a highly classified directive that authorized the National Security Agency to intercept communications between people inside the United States and terrorism suspects overseas. And so the debate began. Did the President have the authority to authorize this program? Did it violate the Foreign Intelligence Surveillance Act--or FISA? Had Congress independently granted the President this authority? Did he have these inherent powers under the Constitution? Lawyers and laymen throughout our country have debated the issue. The Senate Judiciary Committee initiated two hearings on the legality of the NSA program and, pursuant to our oversight function, brought in Attorney General Alberto Gonzales and seven leading scholars and experts to testify. After questioning General Gonzales for some 7 hours, and the panel of scholars for hours more, we were still left troubled by two competing concerns. On the one hand, we are a Nation at war. On September 11 we suffered the worst attack on civilians in our country's history by an enemy like none we had faced before. The more we learn about this enemy, the more we learn about a cruel and brutal opponent who will stop at nothing to terrorize and harm our country. This is an enemy that knows no honor. It seeks to inflict ever-escalating violence on defenseless civilians. This is an enemy that knows no mercy. It beheads innocent aid workers and journalists and proudly broadcasts these murders for the world to see. This is an enemy that knows no bounds of decency. It recruits women and children to strap bombs to their bodies and blow themselves up, knowing that American soldiers are likely to come close to help them. This is an enemy that is patient. It infiltrates our borders and waits quietly for an opportunity to attack. Most frighteningly, this is an enemy that is capable. It roams the globe, organizing terrorist cells along its path. It has the ability to master and exploit modem technology and organize attacks on America from anywhere on the globe. On the other hand, we are a Nation that believes in the rule of law. We are a people that hold dear the rights and liberties enshrined in our Constitution. Although we recognize the threat we face, we are not willing to sacrifice our rights and live in a state of perpetual fear. Our enemy is the enemy of freedom, and we will not give that enemy the satisfaction of making us give up the very freedom we cherish. The question remains, what is a society like ours to do? I do not agree with those who contend that the current FISA law is just fine. When the FISA bill was enacted in 1978, we faced a very different enemy. That enemy did not attack on our soil; that enemy was organized into nation states that we could negotiate with; that enemy did not use terrorist tactics on our civilian population. And in 1978, we were grappling with very different technologies. We were worried about telephone and telegraphs, not e-mail, cell phones, handheld computers, and Internet chat rooms. Accordingly, the Congress passed a law in 1978 that required case-by-case warrants; warrants that identified individual persons and places; warrants a lot like those a prosecutor would seek in a routine criminal investigation. These case- by-case warrants, however, simply may not be sufficient today, when we are in a time of war and we need to track an amorphous enemy that moves quickly and is often able to evade detection. At the same time, I do not agree with those who insist that we are facing an entirely new situation, and that the checks and balances our nation has long embraced are now outdated. I think these advocates are wrong when they insist that the best we can do is to give the Executive Branch a blank check and hope that it will do the right thing. I believe that there is a middle ground. I believe it is possible to provide the President with the flexibility and secrecy he needs to track terrorists, while providing for meaningful supervision outside of the Executive Branch. It may be surprising to some, but I think we can get some insight from, of all places, a Senate hearing. Let's step back and survey the situation. The country had recently discovered that the NSA had secretly worked with major communication companies for years. We learned that initially the program focused on certain foreign targets, but it grew to cover communications from U.S. citizens. Amid accusations that the President had violated the Constitution and Federal statute, a Senate Committee called the Attorney General to testify and address the ``serious legal and constitutional questions . . . raised by the program.'' If this sounds familiar, it should. It is what took place in November 1975, when the nation discovered a secret NSA program to monitor telegraph messages, and a special Senate Committee called Attorney General Edward Levi to testify. That hearing, like the hearing the Senate Judiciary Committee held last week, elicited discussions on the importance of preserving civil liberties and upholding the Bill of Rights, and the need to protect national security and preserve secrecy in foreign intelligence. That hearing also elicited a possible solution. During his testimony to the Church Committee on U.S. Intelligence Activities, Attorney General Levi suggested that one method for granting the President the needed flexibility, while maintaining supervision by the courts, was to give a special court the power to issue broader, program-wide warrants. Attorney General Levi reasoned that for programs ``designed to gather foreign-intelligence information essential to the security of the Nation,'' the court should have the power to approve a ``program of surveillance.'' He explained that the traditional warrant procedure works only when surveillance ``involves a particular target location or individual at a specific time.'' While this procedure was fine for routine, criminal investigations, the Nation needed a different solution for enemies that require ``virtually continuous surveillance, which by its nature does not have specifically predetermined targets.'' Attorney General Levi suggested that in approving a surveillance plan, the court should determine whether the program ``strikes a reasonable balance between the government's need for the information and the protection of individuals' rights.'' Unfortunately, we did not follow Attorney General Levi's suggestion. It is not too late to do so, however. The National Security Surveillance Act of 2006 seeks to pick up where the Congress of 1978 left off. I believe that the National Security Surveillance Act sets forth workable and effective procedures for the FISA Court to evaluate surveillance programs. Its procedures, in fact, are very similar to those Attorney General Levi advocated thirty years ago. First, in order to continue the NSA program, or any similar programs, the Attorney General must apply to the FISA court for permission to initiate a surveillance program and then seek re-authorization of that program every 45 days. The Attorney General must explain his legal basis for concluding that the surveillance program is constitutional. He must also provide a good deal of information to the court. He must: identify or describe the foreign country or terrorist group he seeks to monitor; provide enough facts to indicate one of the parties on the line is a member of that foreign country or terrorist group or has had communications with it; identify the steps he is taking to make sure that innocent Americans are not being swept into the surveillance program; determine that at least one of the parties is in the U. S.; estimate the number of communications to be monitored; and provide data so the FISA court can evaluate the program, including information on how long the program has existed and what type of intelligence it has uncovered. The Attorney General should feel no concern in sharing information about the program with the FISA court. The FISA court has proven that it is capable of maintaining the secrecy with which it has been charged and that it possesses the requisite expertise and discretion for adjudicating sensitive issues of national security. The FISA court must then determine whether approving the program is consistent with the U.S. Constitution. It must also balance the interests at stake and decide whether to approve the program. Specifically, the court must: determine whether probable cause exists to authorize the surveillance; evaluate whether historically the government has implemented the electronic surveillance program in accordance with its proposals; determine that at least one of the participants to the electronic communication is a member of the foreign country or terrorist group that the Attorney General has identified; consider the privacy costs of the program as measured by the number of communications subjected to the electronic surveillance program, the length of time the electronic surveillance program has been in existence, and the effectiveness of the minimization procedures; and consider the benefits of the program as measured by the intelligence information obtained or the number of plots uncovered or cells disrupted. The Attorney General must resubmit the program to the FISA court every 45 days. In the event the FISA court refuses to approve the electronic surveillance program, that does not end the matter. The Attorney General may modify the program and then submit a new application, until the FISA court concludes that the program satisfies the Constitution and the standards set forth in this bill. In the alternative, the Attorney General may conclude that implementing an amended program is inappropriate in light of the FISA court's concerns. The FISA court would itself be required to notify Congress of its decision with respect to the proffered program's constitutionality. Finally, the bill requires the Attorney General to submit information on the program's scope and effectiveness to the Chairman and Ranking Member of the Senate and House Intelligence Committees every 6 months. In the case at hand, the Attorney General would be required to justify the NSA surveillance program to the FISA court, which would, in turn, determine whether the program met all constitutional and legal requirements. The court would be required to consider, for example, whether members of Al Qaeda were appropriately targeted, whether proper minimization techniques were being followed, and whether the program satisfied the demands of the Fourth Amendment. There are those who will say that we should not act. That currently, things are fine. I would remind my colleagues that our enemies are not so content to sit still. A country that does not understand that our enemy has changed since the 1970s will come to regret it. And a Congress that pauses when it should act, denies its duty to adapt to the enemy we currently face. But, ultimately, the enemies of democracy win when civil liberties are lost. We must maintain our democracy and defeat our enemies. This legislation does both and I urge my colleagues to support it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, Senator Harkin and I have submitted this amendment, joined by 27 cosponsors, which would add $7 billion to the fund for education, health, and workers' safety. This account has been decimated since fiscal year 2005 with a loss of some $15.7 billion when we consider the cuts and the failure to have an inflationary increase. Health and education are the two major capital assets of the country. We have gone beyond the fat, beyond the muscle, beyond the bone, and into the marrow. This funding will help us a little, not really enough. We ask our colleagues to support it. I yield to Senator Harkin.

Mr. SPECTER

Mr. SPECTER. Did we not have 1 hour?

Mr. SPECTER. How long did I speak?

Mr. SPECTER. Mr. President, I am delighted to yield to my distinguished colleague from Iowa for some forceful rhetoric on this important subject.

Mr. SPECTER. We have 30 minutes.

Mr. SPECTER. Mr. President, I am sending an amendment to the desk on behalf of Senators Harkin, Smith, Kennedy, Lautenberg, Murray, Lincoln, Lieberman, Kerry, Clinton, Bingaman, Akaka, Obama, Cantwell, Kohl, Dodd, Mikulski, Dayton, Durbin, Collins, Landrieu and myself, and ask for its consideration in terms of the unanimous consent agreement already reached.

Mr. SPECTER. Mr. President, before proceeding into the details of this amendment, let me state that it is an amendment which seeks to offer $7 billion to increase the cap on advanced appropriations under section 401 of this resolution. The budget resolution has increased the President's mark by some $3 billion so that if accepted this amendment for $7 billion will constitute an increase over the President's mark of some $10 billion. Let me say at the outset that notwithstanding the sizable figure involved here, the funding for the subcommittee, which I chair and where Senator Harkin is the ranking member, we will still be more than $5 billion short of where we would have been had the budget for fiscal year 2006 been frozen with an inflation increase, and then the budget for 2007 again frozen accommodating an inflation increase. That has come about. The figures are complicated and technical, but I think it is important to understand where we are coming from on this amendment. For fiscal year 2005 the budget enacted was $143.4 billion. The budget enacted was $141.5 billion for fiscal year 2006, almost $2 billion less. The inflation factor was $4.8 billion. If we take the $1.9 billion reduction and the $4.8 billion, our budget for the fiscal year 2006 was $6.7 billion under a freeze. The budget for fiscal year 2007 has come in at $137.5 billion. What we have is a President's budget which is $5 billion under the enacted budget for fiscal year 2006. If we add an inflation factor of $5 billion, the budget for fiscal year 2007 should be $153.2 billion, which means that under the current figures we are $15.7 billion short. Now, that is on a freeze. There has been a lot of rhetoric about maintaining fiscal responsibility, which I subscribe to. That is something we should be doing. We should be, as a nation, living within our budget. It is unfortunate we did not pass a constitutional amendment for a balanced budget, which would have compelled us to live within our means, as every citizen must do so and the States and the cities and other governmental units, but we did not pass that. But what I call fiscal restraint is if you have a freeze; that is, you do not increase the spending. But when you have had this sequence where the budget has been cut, plus the failure to have an allowance for an inflation factor, we have done more than cut out the fat, we have done more than cut through the muscle, we have done more than cut through the bone; we have cut into the marrow. It is that serious as to what has happened. In the Subcommittee on Labor, Health, Human Services and Education, we are dealing with our two major capital assets--health and education. Without health, individuals obviously cannot function. And without education, individuals cannot reach their potential. And the Department of Labor--workforce, job training, worker safety--again, very vital functions. In an earlier vote today, I voted against the amendment offered by Senator Kennedy for $6.3 billion which would have increased Pell grants by $1.8 billion, would have increased funding for other higher education programs by $2.4 billion, would have increased funding for Perkins vocational education by $1.3 billion and other revenues by $750 million. Much as I would have liked to have voted for the Kennedy amendment, I voted against it because it seemed to me an impossibility for Senator Kennedy's amendment to be agreed to and to have the Specter-Harkin amendment agreed to. I tried to persuade my distinguished colleague, Senator Harkin, to vote against the Kennedy amendment and join me on that. He told me about some of the practical facts of life on his side of the aisle. I relented, notwithstanding our general partnership agreement, and released him from his obligations. So Senator Harkin voted for the Kennedy amendment, which I would have liked to have done, and I voted against it, although it was a very painful vote. Now we come to the addition of $7 billion. Let me explain briefly, before yielding to Senator Harkin, what this amendment does. In the Department of Labor, the fiscal year 2007 budget proposes to eliminate $49 million for reintegration of youthful offenders. This will be reinstated, but this is what the resolution calls for. Would reinstate the $7 billion as added, $49 million for the reintegration of youthful offenders, obviously, a very important program. The budget eliminates $79 million for training migrant and seasonal farmworkers and dislocated worker assistance by $232 million, cut adult training by $152 million, and cut the Job Corps by $62 million. This amendment will restore those indispensable items. This amendment restores $637 million for the Community Service Block Grant Program. This amendment also provides funding for low-income energy assistance. This amendment restores funding for the National Institutes of Health. The current budget resolution recommends $29.350 billion, which is $1 billion over the fiscal year 2006 appropriation and the President's request. This amendment provides NIH with a $2 billion increase over the President's budget. Even with this increase, the amount is below what has been provided in the 2005 budget, adjusted for inflation. Just a word or two about the National Institutes of Health. The subcommittee has taken the lead in the past several years of more than doubling funding for the National Institutes of Health from $12 billion to more than $29 billion. What has happened in the last 2 years, has eventuated in a reduction in the number of grants which may be offered. In this field, there is panic among the applicants for NIH funding. Dr. John Glick, noted oncologist, Philadelphian--happens to be my oncologist; I am unfortunate to need one, but he is a superb oncologist--has confirmed what I have heard reported around the country about how the National Institutes of Health are not able to perform their function. They are dealing with rock-bed American health. They are dealing with the potential cures for heart disease, cancer, Alzheimer's, Parkinson's, diabetes. When we have the hearing in a few weeks, we will be bringing in 21 experts of these various disciplines to testify what the impact has been. The Department of Education has had the President's budget proposal to reduce it by more than $2.1 billion. This budget resolution assumes an increase of $1.5 billion over the President's budget request but would still result in cuts below the fiscal year 2006 level. We detail what we are doing for education. We will be providing the kind of funding, in large measure, which the Kennedy amendment was looking for which, as I say, I had voted against. The managers of this budget resolution have done an outstanding job of dealing with a very difficult situation. What we are doing is simply not looking at reality on discretionary spending. There is a great deal of spending which is being undertaken by the Federal Government at the present time. Entitlements are precisely what they say. They are established. We have tremendous expenses with the hurricanes. We have tremendous expenses with Afghanistan. We have tremendous expenses with Iraq. I am not going to direct any comments on any of those directions as to whether we are doing the right thing in what we are spending. I do know, when it comes to health, education, worker training, worker safety, we cannot move below a freeze on fiscal year 2005 and have anything but chaos. I have detailed why we are now $15.7 billion below what we should have been in 2005 had there been a freeze without the cuts and allowing for inflation. When you talk about fiscal responsibility, I do not think anyone, including our so-called base, would expect us to do more than freeze-- not to cut education, not to cut health care, not to cut job training, not to cut worker safety but to hold the line, tighten our belts, and have a freeze. So when we end up with $3 billion added by the committee and $7 billion if this amendment passes, we are still far short of where we need to be. As I have advised the leadership, I have grave doubts about supporting the budget resolution, even with the adoption of this amendment. The budget resolution does not end the day. There has to be a conference. There have to be allocations in the Committee on Appropriations. I put the Republican leadership and the Democratic leadership and the House and the White House and the Presiding Officer, everyone on notice that I will want to see some real assurances that we are dealing with hard money, not with confederate dollars, not with something on a printout but something which will eventuate in having an appropriation for our subcommittee which will enable us to do a decent job--not an adequate job, not the proper job but at least a decent minimal job on these important functions. I ask unanimous consent that my full statement be printed in the Record.

Mr. SPECTER. Mr. President, reserving the right to object, could the chairman of the committee clarify when he intends to bring the so- called Specter-Harkin amendment to a vote?

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

Mr. SPECTER. Mr. President, I am advised there will be two Senators absent at that time who are in favor of this amendment. If I may have the indulgence of the chairman for one moment to find out when they will be here, may I inquire of the chairman when the last vote is scheduled in his unanimous consent request.

Mr. SPECTER. I express my regrets to the Senator from Iowa, I thought it was an hour.

Mr. SPECTER. It is not asking for a lot in my short tenure.

Mr. SPECTER. I took one half of what I expected our allocation to be.

Mr. SPECTER. Mr. President, may I add that with the concurrence of Senator Harkin and myself.

Mr. SPECTER. Mr. President, may I inquire of the chairman if the vote on the Specter-Harkin amendment could be scheduled at the end of the sequence.

Mr. SPECTER. Mr. President, I thank the distinguished chairman.

Mr. SPECTER. Mr. President, I think that is an excellent idea. I thought we would be in the safe range, but if there is some possibility that 3:30 will not be a time when those two Senators will be present, I ask that the suggestion by the Senator from North Dakota be agreed to.

Mr. SPECTER

Mr. SPECTER. Mr. President, will the Senator from Wisconsin yield for a question? May we have a copy of your resolution?

Mr. SPECTER. Mr. President, if the Senator from Wisconsin would let this Senator have a copy of it now.

Mr. SPECTER. Mr. President, might I ask the Senator from Wisconsin to stay on the floor? Mr. President, I think this subject matter is worthy of debate, but notwithstanding my experience of debating, I don't think I can debate without someone to debate with. I tried to attract the attention of the Senator from Wisconsin before he departed the Chamber. I think I got in right as he was on the way out the door. But let me ask his staffers if they would invite the Senator from Wisconsin to return to the floor. Having listened to his long soliloquy, I would appreciate the benefit of his presence so we can deal with these issues in some substantive detail. At the outset, I say that I agree with a number of things which the Senator from Wisconsin said and items which are in his resolution. When he comes to the resolve clause and speaks about censure and condemnation of President Bush, I think he is vastly excessive. Call it over the top, call it beyond the pale, the facts recited in this resolution simply do not support that kind of conclusion. Going right to the heart of the issue, the Senator from Wisconsin says in the fourth ``whereas'' clause on page 2 that the President does not have the inherent constitutional authority to act in distinction and difference from the Foreign Intelligence Surveillance Act. That is what you call a naked assertion unsupported by any statement of law, unsupported by any rationale. The Judiciary Committee, of which the Senator from Wisconsin is a member, has held two hearings on the authority of the President to conduct electronic surveillance. And there has been a great deal of testimony from reputable sources saying that the President does have inherent authority under article II of the Constitution. If that legal conclusion is correct, then constitutional authority trumps a statute. The Congress cannot legislate in derogation of the President's constitutional authority. We cannot enact laws which take away authority prescribed to the President under the Constitution, just as we cannot legislate to take away authority that the Supreme Court has under the Constitution. Just as we cannot delegate our authority which the Constitution gives to the Congress, we cannot delegate our authority in derogation of our constitutional responsibilities and authorities. Those are very basic principles of law. I am sorry that the Senator from Wisconsin saw fit to condemn and excoriate the President for 25 minutes but doesn't have time to come to this floor to answer a simple question. And that simple question is, Doesn't the Constitution trump statute? A subordinate part of that question is if the President has inherent authority under article II, isn't it incorrect to say that the President has violated the Foreign Intelligence Surveillance Act, which would be superseded or trumped by the President's constitutional authority? We are going to have some more hearings before the Judiciary Committee. If I don't have an opportunity to confront the Senator from Wisconsin this afternoon, I will find another opportunity to do so. But I think the Record should be plain that in the hearing last month a number of academicians testified that the President does have inherent authority under article II to supersede the Foreign Intelligence Surveillance Act. And the Attorney General testified at length that the President has inherent authority under article II, which would lead to the conclusion that if Attorney General Gonzalez is correct, as a matter of law, then there is no violation of law by the President. Admittedly he is taking the President's side, but that is the job of Attorney General as a generalization. He also represents the American people, and he has to discharge his oath consistent with his duties to the American people. There are a number of points, as I have said earlier, where I think the Senator from Wisconsin makes a valid argument. I think on his third ``whereas'' clause on page 1 of the resolution, where he says that the Foreign Intelligence Surveillance Act is the exclusive statutory authority for electronic surveillance, he is correct. That doesn't rule out the Constitution superseding the statute, however. When the Senator from Wisconsin says on his third ``whereas'' clause on page 2 that the resolution authorizing the use of military force did not change the Foreign Intelligence Surveillance Act, I think the Senator from Wisconsin is correct. But the correctness of those two propositions do not supersede the inherent article II authority of the President. And that is the issue which has yet to be resolved. The majority leader spoke very briefly this afternoon before the Senator from Wisconsin presented his resolution. Senator Frist said that we are dealing with a lawful program. Senator Frist is in the position to make an evaluation on that subject because Senator Frist is one of the so-called Gang of 8, which has had access to the program. He has been briefed on the program. I believe the Senator from Wisconsin is correct in the body of his resolution when he raises an issue that the statute requires all members of the Intelligence Committee to be briefed. That is the applicable law. It may be that there are good reasons for not briefing all the members of the Senate Intelligence Committee and all members of the House Intelligence Committee. Perhaps because members of the Congress leak. But if good reasons do exist, then the President ought to come to the Congress and ask it to change the law. I agree with him that the Congress leaks. I have to say, in the same breath, that the White House also leaks. That is not a very good record for either the Congress or the White House. That is why I have prepared legislation which would submit the NSA electronic surveillance program to the Foreign Intelligence Surveillance Court. That court now passes on applications for search- and-seizure warrants under the Foreign Intelligence Surveillance Act. They apply the standard, which is different than the standard for a search-and-seizure warrant in a criminal case. They have expertise in the field. They also have an exemplary record for keeping secrets. That is the way to deal with this issue. There must be a determination on constitutionality. It is not possible, in my legal judgment, to make a determination as to whether the President's inherent article II powers authorize this kind of a program, without knowing what the program is. I don't know what the program is. The Attorney General would not tell us what it is when he testified last month. I understood his reasons for not telling us, even though we could have gone into a closed session. But the Judiciary Committee was looking at the legalities of the program. We were in a position to render a judgment on whether the Foreign Intelligence Surveillance Act was the exclusive remedy, and whether the resolution to authorize the use of force changed the FISA act. But it is a matter for the Intelligence Committee to get into the details of the program which, until last week, the administration has been unwilling to do. I have great respect for my colleague Senator DeWine, and have talked to him extensively about this issue. He and I serve on the Judiciary Committee together. I like his idea about getting the administration to submit the program to, at least, the eight members of the Senate Intelligence Committee who, according to the press accounts, were briefed about it last week. I do not think it is adequate, as other parts of the DeWine legislation propose, to allow the surveillance to go on for 45 days, and at the end of that 45-day period to then give the administration the option of going to the FISA Court or to the Senate subcommittee. The subcommittee does not grant authorization for warrants. The subcommittee function is oversight. It is not a replacement for the Foreign Intelligence Surveillance Court. A way is at hand to deal with this issue. The majority leader, Senator Frist, said we have a lawful program. That opinion has weight, substantial weight in my mind, but it is not conclusive. Senator Frist is not a judicial official. It may be that a more detailed analysis is necessary than has been presented to the Gang of 8. I don't know, because I don't know what they heard or what they learned. How much time do I have remaining?

Mr. SPECTER. No, but I will at the conclusion of my presentation. We ought to focus for a few moments on the importance of judicial review on the fourth amendment issues of search and seizure. With the limited time I have left, I have only a few references, but I begin with a famous case in 1761 where a Boston lawyer defended Boston merchants who had been searched by customs house officials. James Otis gave a stirring 5-hour speech, charging the customs officers ``break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.'' Very weighty words in 1761. Maybe if James Otis had seen this program, we could take his word on its constitutionality. John Adams described this case as the spark of the American Revolution. He stated: Then and there was the child Independence born. Then in the Declaration of Independence in 1776, it is stated that one of the key reasons for the American Revolution involved the King allowing his officers to violate the rights of Americans and then protecting them ``by a mock trial, from punishment,'' for the injuries that they had committed. And then we have the fourth amendment. We need to go back to the basics of this amendment, which prohibit unreasonable searches and seizures. That is the question in this matter. In 1916, in the Weeks case, the Supreme Court of the United States ruled that evidence obtained in violation of the fourth amendment could not be used in a criminal trial. In 1961, in Mapp v. Ohio, the Supreme Court of the United States ruled that the due process clause of the 14th amendment prohibited States and State criminal prosecutions from using evidence obtained as a result of an unreasonable search and seizure. We have had the Supreme Court of the United States intervene, even in time of war, to limit the President's authority. During the Korean war, President Truman cited ``the existence of a national emergency'' to ``be able to repel any and all threats against our national security.'' The Supreme Court of the United States, in Youngstown Sheet v. Sawyer, said the President did not have that authority. They said it exceeded his authority. In the Hamdi case, 2004, 18 or 20 months ago, the Supreme Court stated: We have long since made it clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. And the Court went on to say: . . . whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties were at stake. We have a way through this maze. The way through the maze is for the Congress to give jurisdiction to the FISA Court. That is our job, to give jurisdiction to Federal courts. We have dealt with the issue as to whether there is a case or a controversy. There is one. Without going into details here, it is not an advisory opinion. But this resolution calling for the condemnation and the censure of the President is out of line and out of bounds. In listening to the Senator from Wisconsin, I did not hear, at any time, him say the President has acted in bad faith. The President may be wrong, but he has not acted in bad faith. I think all would concede that the President was diligently doing the best job he can. And I agree with him. I think the President's best job is satisfactory, and that no one has ever accused him of bad faith. In the absence of any showing of bad faith, who has standing to censure and condemn the President and then not stay in the Chamber to debate the issue? I do hope this matter is referred to the Judiciary Committee, and not to the Rules Committee. We have already had two hearings on matters relating to this subject. I especially want to see this resolution referred to the Judiciary Committee because if it is in the Judiciary Committee, I can debate Senator Feingold. If it goes to the Rules Committee, I cannot debate Senator Feingold. Now, isn't that a powerful jurisdictional argument for the Judiciary Committee?

Mr. SPECTER. I do. And I want to thank you for being here in Senator Feingold's stead.

Mr. SPECTER. No.

Mr. SPECTER. Mr. President, I ask that the unanimous consent request giving Senator Feingold 25 minutes be expanded to give this Senator 25 minutes, with the time running off the bill.