Arlen Specter

Mr. SPECTER

Mr. SPECTER. Yes.

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

Mr. SPECTER. Mr. President, I had hoped to engage in a short colloquy with the Senator from Texas on his amendment, but I had to leave the floor for a moment or two. I want to make a couple of very brief points--and I will elaborate on them more extensively later--and that is the medical criteria bill does not do anything for the employees of companies which have gone bankrupt. There are some 77 of those, and more imminently, so that we have a large group of people suffering from mesothelioma and other deadly, serious diseases who will not be compensated. Then we have the veterans who have had exposure to asbestos in a variety of ways, a lot through Government work, where they do not have anybody to sue. So a medical criteria bill will not help them. Then we have basic consideration of the medical criteria bill that does not really take these cases out of the court system. It does not stop the suits from being filed. It does not stop the extensive discovery process, the depositions, the interrogatories, the medical examinations. When we deal with the question as to injury, it is subject to contest and subject to litigation. So the medical criteria bill is a diversion--I wouldn't call it a poison pill because I don't want to engage in any inflammatory language, but it does not do what the trust fund does, and that is provide a remedy for compensation for thousands of very seriously ill people. While I am on the Senate floor, I want to take up one other point briefly while the Senator from Illinois is on the floor. He has made an argument--an extensive argument--about knowing who is going to put up the money. When I pointed out yesterday that the lists were available to him to know who is putting up the money, that his staff, in fact, had looked at them, he then shifted his ground from not knowing who was putting up the money to the specious argument that they were secret from the public in general and that there is some effort to conceal something which, of course, is not the case. Then on a mutation, he moves from that to a contention that these people who had to be subpoenaed have written the bill because somehow they have provided some information as to how much money is going to be put up, which goes into the bill. I don't think I require any extensive reply to that. I think of my sister Shirley in Elizabeth, NJ, who likes the Senator from Illinois, as I do--sometimes--pointed out to me that she could see through those arguments. But not making the materials available beyond the Senator and the staff--and I can see they ought to be able to copy them--I will stand by that--so that Senator Durbin doesn't have to look at them, his staff can look at them, copy them, and show them to Senator Durbin, all within the range of confidentiality. But that doesn't mean there is some secret being kept from the American people, not as long as Dick Durbin knows what they are; he will protect the American people. Frankly, so will Arlen Specter protect the American people. But it doesn't mean these sinister forces have written the bill because the bill was written by the committee. Senator Durbin is on the committee. He helped write the bill. He made amendments. I think some were even adopted. I won't swear to that. I know one was and then it was changed when we finally understood what it was. We adopted one in about 4 minutes one day--right?--and then we had to change it when we found out what it really was. We do that from time to time. I have taken a look at the issue of confidentiality because I reserved that yesterday during the discussion. I find there are a couple of provisions that are very problematic. One is section 1905 of title 18 of the United States Code which makes it an offense--and I am not sure what, with the abbreviated version I have here, the penalties are, but it prohibits any officer or employee of the United States to divulge information--I will have this printed in the Record--``which information concerns or relates to trade secrets, processes, operations, style of work, or apparatus,'' et cetera. It is hard to interpret it without doing some more research, but I think it may well cover this. There is also a Senate rule, rule XXIX(5), which relates to prohibition against any Senator, officer, or employee of the Senate disclosing secret or confidential business proceedings of the Senate. It does not appear on its face to conclusively cover these kinds of records, but it may. It may be part of the records of the Senate. But I think there is more than a colorable prohibition against disclosure on confidentiality. At least at this time, I wouldn't rule it out completely. I would like to have maximum disclosure, frankly, if it can be done consistent with the law and consistent with the rules of the Senate and consistent with fairness to the companies which provided the information. Mr. President, I ask unanimous consent that this document entitled ``FAIR Act Transparency,'' which includes the references to which I just alluded, be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. I do.

Mr. SPECTER. Mr. President, when the Senator from Illinois talks about doing it in an honest way--we have done that. We have been honest. When he talks about, if we make a mistake, there will be a lot of human suffering, there is a lot of human suffering right now. It would be hard to structure a substitute system which would have more human suffering than you have now. We are looking at a system which is totally debilitating and decimating, with the courts clogged and with thousands of people suffering from deadly diseases and not being compensated. When the Senator from Illinois makes a reference to saluting me for trying, I appreciate salutes of any kind, but I am looking to the possibility of a salute for succeeding. I don't know how this debate is going to turn out or what is going to happen in the final vote. But I do know that for more than 3 decades, nobody has been able to bring a bill to the floor and nobody has been able to move past a determined effort by the minority to block this bill with a filibuster. When that effort failed late in the afternoon on Tuesday, they wanted to withdraw the motion, and we defeated it very soundly. The Senator from Illinois says I have undertaken a Herculean assignment. It is a Herculean problem. I wish Hercules was around to handle it. I would be glad to defer to Hercules were he here. When the Senator from Illinois refers to cutting payments, that does not happen unless the Congress agrees. When the administrator evaluates the trust fund and finds that there may be insufficient funds to pay the claims, the administrator then reports to a committee of 20, selected by the leaders of the House and Senate, and then they make a recommendation to the Congress. So it isn't a cut without having congressional action. As wise as we may think we are today, there will be Senators here into the indefinite future; we hope forever. They will have the wisdom, they will make a judgment, and they will have the determination as to what payments are going to be made. So it is not an automatic or easy cut in payments. Bear in mind that the basic remedy is to go back to the tort system, to go back to court. So the claimants are no worse off under the tort system than they are today, if no plan is adopted. The Senator from Illinois has repeatedly challenged the establishment of the trust fund of $140 billion. Yesterday, he referenced a letter which he sent to me to which he has not gotten an answer. I checked about the letter and I checked about what we did about the questions raised in the letter, and the answer was we had a briefing 2 days later. We answered the questions, not by written letter but by a more detailed statement from a briefing. When the Senator talks about the $140 billion which was established, all the information was available in that briefing, and still is to the Senator from Illinois about projections based upon experience with asbestos. When we talk about the Bates White report, that has been thoroughly refuted. They took into account people such as manicurists and taxi drivers who did not have an occupational exposure to asbestos. The Congressional Budget Office came up with an analysis of Bates White, and left the Bates White report in ruins. We had a detailed hearing on that as we have had every time an issue has arisen. The Congressional Budget Office then issued a supplemental report showing that Bates White was wrong and their initial figures were correct. On page 8 of the report submitted by the Congressional Budget Office, dated August 25, 2005, they have a chart where it supplements their analysis that there could be costs in the range of $120 billion to $150 billion, and then they come to a net conclusion of the projection at $132 billion. These are projections; they are not guesses; they are not speculations; but they are not mathematics, either. They are based upon the best information available and they are judgment calls. In the letter from the Congressional Budget Office dated December 19, they included this statement after analyzing a great number of factors: The final outcome cannot be predicted with great certainty. I don't know what can be predicted with great certainty. I know for many years I was a district attorney prosecuting criminal cases and handled first-degree murder cases. The death penalty is imposed in America is if it is proved beyond a reasonable doubt. But on a level of great certainty, that is not an attainable level, and I would say almost in any field of human endeavor. I don't want to be too expansive in that assertion, but great certainty is not something you come by in the ordinary affairs of men and government.

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

Mr. SPECTER. I am prepared to have the Senator told because I don't have it at my fingertips. But I am prepared to have that information given to the Senator from Illinois. Yes. I yield the floor. Exhibit 1 FAIR Act Transparency Funding is guaranteed. The $140 billion in defendant participant contributions to the Fund under the FAIR Act are guaranteed by the manufacturers and industry. Certification. The fund cannot be deemed operational until the Fund Administrator publishes a list of defendant participants and their required payments in the Federal Register. Senator Durbin's assertions that outside groups wrote the FAIR Act is flat wrong. S. 852 creates an allocation formula whereby contributions are based directly on a manufacturers ``prior asbestos expenditure'' in the tort system. This was a FORMULA created and drafted by SENATORS. Our Congressional subpoena was directed at the corporations to identify, by computing their ``prior asbestos expenditure'' what tiers of the funding formula they would fall into. Process. I have met with many Senators individually including, at different times, Senator Cornyn (4/12/05) and Senator Feinstein (5/10/05) on the issue of transparency. The Judiciary Committee issued three subpoenas in an effort to learn more about the companies likely to pay into the Fund created by the FAIR Act. The subpoenas were dispatched between September 30 and December 1 to groups representing companies on both sides of this bill. These transparency efforts led to the creation of a spreadsheet with the names and anticipated tier assignments of companies. The staff came up with their estimates based upon publicly available information included in SEC filings and data gathered through hundreds of phone calls. In light of this information, Judiciary Staff held at least two transparency briefings, the first of which occurred on October 7, 2005. All Senators and their staff can view a list compiled now. This list is confidential because it includes confidential information from businesses. Confidentiality. In issuing the subpoenas and making telephone calls, my office informed companies that the information obtained would be held confidential pursuant to Rule XXIX of the Standing Rules of the Senate and under 18 U.S.C. 1905. Rule XXIX (5) of the Standing Rules provides: ``[a]ny Senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body; and if an officer or employee, to dismissal from the service of the Senate, and to punishment for contempt.'' Similarly, Section 1905 of Title 18 of the United States Code provides: Whoever, being an officer or employee of the United States . . . divulges, discloses, or makes known in any manner . . . any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; . . . . shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment. In light of the foregoing, the Senate Judiciary Committee reiterates what we have said from the beginning of this exercise: we are prepared to share the spreadsheet with any Senator or designated member of their staff. The staff may even make a copy of the spreadsheet so long as they sign an acknowledgement form indicating they understand the information is to remain confidential pursuant to Rule XXIX and 18 U.S.C. 1905.

Mr. SPECTER. Mr. President, I send an amendment to the desk.

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

Mr. SPECTER

Mr. SPECTER. As the Senator from North Dakota outlines the situation, CBO is incompetent, grossly incompetent. When the Senator from North Dakota shows different conclusions which his staff has reached, why wouldn't it be sensible to disband the Congressional Budget Office and just rely on his staff?

Mr. SPECTER

Mr. SPECTER. Mr. President, will the Senator will yield further?

Mr. SPECTER. When he says I haven't responded to his letter, I have responded to his letter by getting him the information. The Senator from Illinois is diligent, resourceful, and raises lots of questions. I would challenge him to say I haven't responded to all of them.

Mr. SPECTER. The pending question--and I will be glad to answer his-- is, Does the Senator from Illinois know that his staff came to look at the list?

Mr. SPECTER. Mr. President, I am advised by staff, since I posed the question, in a note to the effect that Senator Durbin's staff did come to look at the list. Is the Senator from Illinois aware of that?

Mr. SPECTER. As a couple of experienced trial lawyers and debaters, or at least he is an experienced trial lawyer and debater.

Mr. SPECTER. Parliamentary inquiry: Does sua sponte apply to this discussion? I withdraw the parliamentary inquiry. When the Senator from Illinois says the chairman had to issue a subpoena, I consider it a compliment. I have had to deal with stakeholders on all sides who have been recalcitrant. We haven't--I, we, Senator Leahy and I--haven't left any stone unturned. If people who want this bill and are obligated to provide money won't give the information I want, if they are for the bill and they are for the position I am sponsoring, I am going to get tough about it. I am going to get a subpoena so that Senator Durbin knows what is going on, and I think the American people, through their elected representatives, will know what is going on. Does the Senator want me to yield? If I can get wider distribution, I will.

Mr. SPECTER. I didn't have to subpoena anybody to understand the underlying basis for this bill. This is my bill. I understood it when I thought it through and when I wrote it. Will I provide the names of those who are to be contributors? I do not have them at my disposal, and I certainly don't have them in my mind. But the staffer from the Senator from Illinois has already seen them and I would be glad to personally take the Senator from Illinois to look at the list.

Mr. SPECTER. There is a lot of competition for the floor. There are three of us on the floor. A lot of competition for it. When the Senator from Illinois talks about special interest groups, there are others involved in this legislation and they are the victims. They are thousands, tens of thousands of victims who are suffering deadly diseases. Those are the people about whom this Senator is concerned. Yesterday I put into the Record an article from the front page of the Hill about $3 million being spent by lobbyists to defeat this bill. Today the New York Times has a detailed story about how much money is being spent to defeat this bill. It is true there are some who want this bill--the manufacturers and some insurance companies. But the people who really want this bill are the victims. I take just a little umbrage at one sentence, one statement made by the Senator from Illinois when he says that because I have to subpoena material, it raises a question about who is writing the bill, that somebody else is writing the bill. Let me assure you, Madam President, and anybody who may be watching on C-SPAN--if we had anybody, we lost them a long time ago--no special interest has written this bill. It is a non sequitur. I have to respond in some way to sua sponte. It is a non sequitur to say that because it was necessary to subpoena information that somebody else wrote the bill.

Mr. SPECTER. I will be glad to respond. I didn't subpoena any governmental agency. We subpoenaed the companies who were obligated to provide the money.

Mr. SPECTER. There are a lot of semicolons in that sentence, then.

Mr. SPECTER. Mr. President, will the Senator from Illinois yield further?

Mr. SPECTER

Mr. SPECTER. Mr. President, under arrangements worked out between the leaders of the two parties, we will be open for amendments tomorrow. Senator Leahy and I wrote to all Senators back on January 24, urging Senators to let us know what amendments they intended to offer so that we could schedule the business of the Senate. I renew that request at this time. We have a bill where, as previously announced, we are open for modification. During the some 36 negotiating sessions which Judge Becker and I have presided over during the course of the past 2\1/2\ years, we have made many modifications. We accepted many amendments in committee. Some were voted upon and defeated. But we are interested in making this the best bill we can. We have carried the offer beyond amendments. If any companies are having special problems, we are interested to hear of the problems to see if we can find a way to accommodate them. We are dealing here with an enormously complex subject and we have limited time. In order to manage the bills, in order to conserve the time of the Senate, it is our request that Members bring forward to us amendments they want to have offered, which they intend to offer, with suggestions for time limits so we can proceed to manage the bill. There has been extensive debate on the bill. The Washington Post reported today about the success of moving forward with the motion to proceed and, as I say, tomorrow we will be proceeding with the amendment process. The Post noted, as they put it, referring to me, that I had ``a bit of an obsession with the passage of this bill.'' I think that is an erroneous statement. I don't have a bit of an obsession; I have a total obsession with the passage of this bill. I say that because I have been working on this bill for the entire time I have been in the Senate. Shortly after I was elected in 1980, Senator Gary Hart came to me and was with a constituent, Johns Manville, and said there is a terrible asbestos problem. I have been a party to efforts over the course of the past two and one-half decades-plus to try to find an answer. It has been extremely elusive. Finally, Senator Hatch came up with the idea of a trust fund. When we passed the bill out of committee during the 108th Congress in July 2003, I then enlisted the aid of a senior Federal judge, Edward Becker, who had been chief judge of the Third Circuit, and who is very knowledgeable on asbestos matters. Judge Becker had written the opinion which was upheld by the Supreme Court of the United States, which said you could not use class actions on asbestos. That might have been an answer on consolidation class action status to handle the issue in the courts. The Supreme Court of the United States said that mode of procedure was not suitable for asbestos. Then the Supreme Court of the United States issued a challenge to the Congress to provide a legislative solution. That challenge has been issued by the Supreme Court on some four occasions, telling us that it was our business to come up with a solution. Judge Becker agreed to mediate and, as I say, we have had some 36 meetings in my conference room, attended by anywhere from 20 to 60 people. Stakeholders were principally involved, and that is defined as labor, AFL-CIO, which was represented ably at those meetings; we invited the trial lawyers and they attended the meetings, even though we knew there would be opposition from them because, realistically, it impacted their livelihoods; we had the manufacturers and we had the insurers. Last week, we saw come forward a very prominent plaintiffs' lawyer in the asbestos field, Dickie Scruggs, Esq., of Mississippi. He is also Senator Lott's brother-in-law. Senator Lott put the two of us in touch and we talked about the matter. He was one of the originators, if not the originator, of the litigation involving asbestos. From what he has seen over the years, he came to the conclusion that it was not a good idea to keep these asbestos cases in the courts; that a better idea was to have the trust fund, and he came in and made public statements. I believe he may even be on a commercial. I don't have a chance to watch too much television, except for C-SPAN. But he pointed out that the victims are simply not being compensated. When we have had a lot of talk on the Senate floor about special interests, this is one interest group which is not a special interest; it is a general interest, and that general interest is the large group of victims who are suffering from deadly diseases--mesothelioma and lung cancer and other ailments from exposure to asbestos--who are not being compensated. It is their interest we are seeking to take care of. When their companies go bankrupt, they don't have anybody to sue and that is why the trust fund has been created--a trust fund where the figure was established jointly by Senator Frist on behalf of the Republicans and then-Senator Daschle on behalf of the Democrats at $140 billion. !1The interested parties, the manufacturers and insurers, agreed to put up that money. The fund had started out with substantially less, but it was calculated that that would be an amount realistically calculated to take care of the problem. It is very hard when making projections to know with certainty what is going to happen. The Congressional Budget Office has made an exhaustive study and concluded it would cost in the range of $120 billion to $135 billion. They outlined one contingency which might be a little higher than $150 billion, but they said it was impossible to make the calculation, as they put it, ``with great certainty.'' !1Well, you cannot function in all cases with great certainty, but these projections are realistically calculated to do the job. If we are wrong, and when you talk about thousands of cases projected over decades, if our projections are not accurate, the claimants have the right to go back to court so that they are no worse off than they would be at the present time. They are limited to either Federal or State courts--but they cannot judge shop for special counties anywhere in the country, which is the practice today. Madison County, IL, was singled out and some counties in some other States. They have to go to the State courts where they live or where they worked. So we have a realistic plan to take care of this issue. !1But if we can have a better bill, we are very anxious to have that better bill. That is why we have invited our colleagues to come forward with any amendments they may have. The three Senators from the other side of the aisle who have spoken in opposition to the bill have conceded the very grave, difficult problem. They say this bill is not right, but they don't deny the transparency of how we have worked, and they don't deny the evidence that has gone into it or the comprehensive analysis. I have said I believe this is the most complicated piece of legislation that has ever confronted a legislative body. That is a very grandiose, sweeping statement, but I believe it to be true. I repeat that I challenge anybody who knows of some legislative activity that is more complicated than the one at hand. There have been extensive hearings, extensive negotiations, extensive analyses, extensive amendments, and we are still open for the amendment process. !1It is my hope we will do what the Democratic leader said yesterday, and that is go to the amendments and take them up, and that we will not face additional procedural challenges. If we do, we are prepared. There has been some talk in the cloakrooms and hallways about challenging them on a budget point of order, and we are prepared for that. The underlying merits are that there is no realistic budget problem, because there is no Federal money involved here. We have made the bill airtight that the Federal Government cannot be involved. It is all private contributions. If the plan does not succeed, we have alternative ways of dealing with the issue, but not to come back to the Federal Government. There are three possibilities of points of order. One is you cannot have legislation before there is a budget resolution. But on that situation, consulting with the experts on procedure, we can have the date of October 1 in the next fiscal year to solve that. !1There is an issue about an allocation that was made at the discretion of the chairman of the Budget Committee, and we believe that will be accomplished with that allocation being released by the chairman. All of this is a bit presumptive, but I think that is how it will work out. There is a third concern, which is that there not be more than $5 billion spent in any 10-year period between 1960 and about 40 years beyond that. So we will see what eventuates. We are working to cap expenditures so that we stay within that $5 billion limit. Mr. President, I ask unanimous consent that three additional letters from the International Association of Heat and Frost Insulators and Asbestos Workers, the United Automobile Workers, and the International Union of Painters and Allied Trades in support of S. 852, the Fairness in Asbestos Injury Resolution Act of 2005, be printed in the Record.

Mr. SPECTER. Mr. President, I see the distinguished Senator from West Virginia, the senior Member of this body, the former President pro tempore, former chairman of the Appropriations Committee. He has held every title there is around here. We consider Senator Byrd's longevity and stature as phenomenal. He was in Congress when Harry Truman was President, so he has served with a lot of Presidents. Senator Byrd makes a key distinction between serving with and serving under. He says serving with, and I think he is right. And if you are dealing with Senator Byrd, of course, he is right. I yield the floor.

Mr. SPECTER. Mr. President, it is about a quarter of 5, so we still have a fair amount of time left on today's calendar. There is no Senator in the Chamber, except you and me, Mr. President. So if there are any of our colleagues who want to speak on the asbestos bill, now would be a good time to come over and speak. There is a certain tempo about this Chamber. When there are a lot of Senators who want time, there is very limited time, fighting for the last extension of time, unanimous consent for 2 more minutes here and a little more there. Now is the time for anybody who wants to speak to come to the Senate Chamber. I might comment that we all have a lot of other things to do, beyond any question. I have been spending a lot of my time meeting with Senators in their offices talking about the bill and also working on the issue of electronic surveillance, which is very heavy on the Judiciary Committee calendar. I am now about to go to a meeting on immigration, but I will be available if the action on the floor heats up. Again, I urge any of my colleagues who want to speak, now is a good time. Again, I urge my colleagues to follow up on the request Senator Leahy and I made back on January 25: If you have amendments, let us know so we can manage this bill in an efficient way. In the absence of any Senator on the floor seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, on Monday, the Judiciary Committee held a hearing on the administration's electronic surveillance program and we dealt solely with the issues of law as to whether the resolution to authorize the use of force on September 14 provided authority in contradistinction to the Foreign Intelligence Surveillance Act, which flatly prohibits any kind of electronic surveillance without a court order. Then we got into the issue of the President's inherent powers under article II. It is difficult to define those powers without knowing more about the program and we do not know about the program. It was beyond the scope of our hearing, but it is something that may be taken up by the Intelligence Committee. But I made a suggestion to the administration in a letter, in which I wrote to Attorney General Gonzales and put in the Record at our Judiciary Committee hearing, that the administration ought to submit this program to the Foreign Intelligence Surveillance Court. They have the expertise and they are trustworthy. It is a regrettable fact of life in Washington that there are leaks from the Congress and there are leaks from the administration, but the Foreign Intelligence Surveillance Court has been able to maintain its secrecy. The Attorney General said the administration was disinclined to do that. In response to the letter, he wrote, a written response, he said that they would exercise all of their options. I am now in the process of drafting legislation which would call upon the Congress to exercise our article I powers under the Constitution to make it more of a matter for congressional oversight, but respecting the constitutional powers of the President under article I. The Congress has very substantial authority. The President has powers under article II; the Congress has very substantial powers under article I. In section 8, there are a series of provisions which deal with congressional authority on military operations. One which hits it right on the head is to make rules for the Government and regulations of the land and naval forces. That would comprehend what is being done now on the electronic surveillance program. The thrust of the legislative proposal I am drafting and have talked to a number of my colleagues about, with some affirmative responses, is to require the administration to take the program to the Foreign Intelligence Surveillance Court. I think that they ought to do it on their own because I think that there are many questions which have been raised by both the Republicans and Democrats. We want to be secure and we want the military, the administration and the President to have all the tools that they need to fight terrorism, but we also want to maintain our civil liberties. If that unease would be solved by having the Foreign Intelligence Surveillance Court tell the administration that it is constitutional, if they say that it is unconstitutional, then there ought to be a modification of it so what the administration is doing is constitutional. This comes squarely within the often-cited concurring opinion of Justice Jackson in the Steel Seizure case about the President's authority being at its utmost when Congress backs him, on middle ground when Congress has not spoken, and weakest when Congress has acted oppositely in the field, which I think Congress has done under the Foreign Intelligence Surveillance Act because the President's congressional authority then is whatever he has minus whatever Congress has that is taken away from him. As Justice Jackson said, what is involved is the equilibrium of the constitutional system. That is a very weighty concept--the equilibrium of the constitutional system. The legislation I am preparing will set criteria for what ought to be done to establish what the Foreign Intelligence Surveillance Court should apply in determining whether the administration's program is constitutional. The standard of probable cause ought to be the one which the Foreign Intelligence Surveillance Court should apply now--not the criminal standard, but the one for gathering intelligence. Then they ought to weigh and balance the nature of the threat, the scope of the program, how many people are being intercepted, what is being done with the information, what is being done on minimization--which is the phrase that the information is not useful in terms of deleting it or getting rid of it--how successful the program has been, if any projected terrorist threats have been thwarted, and all factors relating to the specifics on the program--its reasons, its rationale for existence and precisely what is being undertaken, its success--and that the Foreign Intelligence Surveillance Court ought to look to this, essentially, prospectively. The court does not have punitive powers, and I do not believe that it is of matter, except to work from this day forward as to what is being done. No one doubts--or at least I do not doubt--the good faith of the President, the Attorney General, and the administration on what they have done here. But as I said in the hearing, I said to Attorney General Gonzales, the administration may be right but, on the other hand, they may be wrong. The Foreign Intelligence Surveillance Court ought to take a look at the program, make a determination from this day forward whether it is constitutional, and if it is constitutional, then they ought to, under the statute, report back to Congress with their determination as to whether it is constitutional. The court ought to further make a determination as to whether it ought to be modified in some way which would be consistent with what the administration wants to accomplish but still be constitutional and not an unreasonable invasion of privacy. The President has represented that his program is reevaluated every 45 days. That is in terms of the evaluation of the continuing threat and what ought to be done. I think a 45-day evaluation period would be in order here as well. This question is one which is not going to go away. We had, yesterday, the comment by a Republican Member of the House of Representatives in the Intelligence Committee who chairs the subcommittee that oversees the National Security Agency. There are quite a number of people on both sides of the aisle who have expressed concerns regarding this program. It is my judgment that having it reviewed by the Foreign Intelligence Surveillance Court would accomplish all of the objectives, would maintain the secrecy of the program, would allow the President to continue it when there has been the determination by a court--that is how we determine probable cause on search warrants, on arrest warrants, on the activities, the traditional way of putting the magistrate, the judicial official between the Government and the individual whose privacy rights are being involved. I yield the floor.