Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, let me agree with Senators who have spoken out very sharply in opposition to the disclosures in the press this morning about ``President Bush Lets U.S. Spy on Callers Without Courts.'' That is wrong, clearly and categorically wrong. If you read some of the fine print, there are some indications that there were some level heads within the executive branch. If you get down into the fine print--it takes a lot of reading beyond page 1 and the other headlines--this appears: [I]n mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it. Later the article says: Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA PATRIOT Act. . . . There is no doubt that this is inappropriate. The chief judge of the Foreign Intelligence Surveillance Court stepped in and said: Don't provide this court with any information you got this way to get a warrant. Just don't do it. So if you read the fine print, there were some parts of the system which were working. But it is inexcusable to have spying on people in the United States without court surveillance in violation of our law, beyond any question. And I can tell you that this will be a matter for oversight by the Judiciary Committee as soon as we can get to it in the new year--a very high priority item. I might add, by way of addendum, that on a morning when we come to have a vote on the PATRIOT Act, it is a little disconcerting to see these headlines. It is not very good publicity with a broad brush as to what the Government is doing. The editorials are frequently published on the day the Senate is to vote. Somebody suggested that the news story, which had been held back by more than a year, was timed as well. I certainly would not want to suggest that. I yield the floor.

Mr. SPECTER. Mr. President, permit me to interject very briefly just to correct some of the misstatements which have been made that crop up again and again. This bill is not understood. This bill is not understood by Senators who are making representations on the floor which are not correct. I don't suggest they are doing it deliberately, but they don't know the bill. The argument has been made that the recipient of a national security letter has to tell the FBI the identity of his lawyer. That is simply not true. The conference report reads: In no circumstance shall a person be required to inform the Director of the FBI or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance. The representation is made here again and again that in section 215, there does not have to be a connection to a terrorism investigation or someone suspected of being a terrorist. The conference report does add a provision to the three criteria for foreign power, but the court has to make a determination on a factual showing that there is a terrorism investigation that does involve foreigners and that records are sought from another person, albeit not identified with one of the three criteria, in order to carry on the investigation. Again and again, the essence of the protection of civil rights traditionally has been that you interpose an impartial magistrate between the policeman and the citizen, and that protection is given under section 215. The argument has been made repeatedly that under the national security letter, there is no review. That is simply not the case. The recipient goes to a lawyer who can challenge the national security letter in court and have it quashed, eliminated, dispensed with, on a showing that it is unreasonable. If you get to the national security issue, then it is different with respect to a bad-faith showing. There is judicial review beforehand on the very broad term of being unreasonable, which is a hallmark of American law in auto accident cases and antitrust cases every time you turn around. The reasonable standard is traditional under our law. I yield to the Senator from Arizona, who has requested 2 minutes, and he can take whatever time he chooses.

Mr. SPECTER

Mr. SPECTER. Thirty seconds?

Mr. SPECTER. We have only 10 minutes left. Senator Cornyn wants to speak. I need to engage Senator Craig in a dialog.

Mr. SPECTER. Go ahead, on my time.

Mr. SPECTER. I thank the Senator from California and yield the floor.

Mr. SPECTER. I have the floor, Mr. President--on the national security letters. We have put in safeguards. The national security letter can be quashed if it is unreasonable. The conference report has set the Senate standard for the conclusive presumption, and I think we have been cognizant of civil rights. I take second place to no one--I know the Senator from Colorado's record as an attorney general and a protector of civil rights, and I have great respect for it, but I take second place to no one in my tenure in the Senate on protecting civil rights, and I think this bill does that. I yield the floor.

Mr. SPECTER. Mr. President, with all due respect, I think we do not need any newspaper editorials to tell the Senate to hang tough or to tell Senators to hang tough or to tell this Senator to hang tough. I think we have hung tough, mighty tough. Let me take up the specifics about what the Senator from Colorado has had to say.

Mr. SPECTER. One more point before I yield to the Senator from Arizona. It is a secret court because they are discussing national security matters. National security matters are always classified. We are briefed in Senate 407 all the time. We go to a secret room where there are classified materials. There is nothing unusual about that. I yield 10 minutes to the Senator from Arizona.

Mr. SPECTER. Will it be in advance of the 3:30 vote on the Labor-HHS bill?

Mr. SPECTER. May I suggest it be on the time of Senator Leahy.

Mr. SPECTER. Reserved, but later?

Mr. SPECTER. Mr. President, while the Senator from California is on the floor, I want to thank her for the complimentary comments, and I want to thank her for being a very productive and constructive member to the Judiciary Committee not only this year while I have been chairman but for many years. She and I had a 30-minute conversation yesterday by phone, after working hours, talking about these issues. If there are any specific points that trouble the Senator from California, I would be glad to discuss them with her, not only to try to deal with any issue she has, but I find that is a good method for acquainting all the Senators with what is at issue in the bill. I note there were no specific issues raised, and I am not asking that specific issues be raised. I heard what the Senator from California said, and I agree with her about the point of consensus. Senator Leahy and I have established a superb relationship, with bipartisanship, which has made the committee function this year, I think, very successfully. I do not think anyone could fault our efforts to come to terms. We just could not do it with the House of Representatives, in a bicameral system, as to what we could accomplish. I congratulate Chairman Sensenbrenner for going the extra mile. But if we could just run it through the Senate without a bicameral legislature, it would be a little different. Then we would have the Senate bill. But there is one thing I would disagree with the Senator from California about--when she says we are going to have a bill. We may not have a bill. The majority leader has said he is not going to go along with the 3-month extension. There is a real issue as to whether the House will take up a 3-month extension. We face many situations in the closing days of the Congress where the House finishes its work and departs. We have taken a lot of House bills where we had no choice, when they were gone. But we may well not have a 3-month extension, and this bill may well expire. That is an alternative which has to be considered by every Senator. I believe there are some Senators who would say they will take the responsibility for having the bill expire, the act expire. Some will take that. If cloture is not invoked and somebody says, Arlen Specter, go back and work on it some more, I will salute and I will be a good soldier and I will go back and work on it some more. But there are going to have to be a lot of moving parts coming into place before there is going to be an extension beyond December 31. I think people ought to consider that. When the majority leader says he is not for it--if he will not take it up, there will be none. Even if he does take it up and even if we pass it, which we might not--if it is not taken up by the House, there will be none. So I believe we have to consider the alternative that there will not be a bill if this bill is not passed. That brings me back to my point about the specific objections. I see Senator Sununu in the Chamber, and I am anxious to have a colloquy with him, if he is willing to do so. But I just wanted to thank the Senator from California and raise those considerations.

Mr. SPECTER. May I inquire when later, Madam President?

Mr. SPECTER. Mr. President, I have worked very closely with the distinguished Senator from Idaho, as he noted, on this matter, with lots of discussions and lots of dialog. He and I worked together on the Ruby Ridge investigation, as Senator Leahy was involved on the other side of the aisle. That was a high watermark of congressional oversight protection of the individual rights. I have a long history with Senator Craig and agree with him that you don't compromise on civil liberties. What you do with civil liberties is you protect them. But I submit to my colleague from Idaho that we have protected. I ask him: He starts off with the delayed notice. The pejorative term is ``sneak and peek.'' Delayed notice is when the law enforcement official shows the judge, the impartial arbiter between the citizen and law enforcement, that there are reasons to have delayed notice. Ordinarily, you have a search-and-seizure warrant. The target knows that right away. The current bill provides for ``reasonable period of time,'' which could mean anything. Some have gone for enormous periods of time. The House came in at 180 days and the Senate came in at 7 days. We were not unaware in picking 7 days we were starting a negotiating track. We were not going to have our entire way. The Fourth Circuit said 45 days is presumptively reasonable and we ended up with 30. I ask my colleague from Idaho, is it a compromise of civil liberties to have a 30-day notice period where you change the existing law from what is reasonable--which means anything--and the House comes down 150 days and we go up 30 days; is that a compromise?

Mr. SPECTER. You cannot take all my time. I will ask another question but may make the argument----

Mr. SPECTER. No, no.

Mr. SPECTER. Madam President, parliamentary inquiry: I understood Senator Harkin had an hour and a half on Labor-HHS and that I would have half an hour on Labor-HHS, and we would then go to the conference report on the PATRIOT Act.

Mr. SPECTER. Mr. President, we don't have a whole lot of time to debate this bill. The Senator from Vermont is right. He and I are due at a meeting on asbestos. The Senator and I are due on many important meetings. I invite anybody who has a question or a doubt about this bill to come to the floor and raise their concerns. If not, I will join my colleague in suggesting the absence of a quorum so we can step across the hall to a meeting.

Mr. SPECTER. Madam President, parliamentary inquiry: We are now proceeding for 2 hours on the PATRIOT Act, as the distinguished senior Senator from Vermont has said, with 1 hour under his control and 1 hour under my control?

Mr. SPECTER

Mr. SPECTER. I share the concerns and frustrations expressed by the distinguished ranking member of this subcommittee, Senator Harkin, and I believe he will agree with me that this bill, the bill that the Senate passed was structured as well as we could have structured it, given the allocation which we had.

Mr. SPECTER. My question to the Senator from Iowa would be, on this conference report, where I have already said publicly in the conference that I thought it was grossly inadequate, $5 billion under last year on health, which is our No. 1 capital asset in this country, and education, which is a major capital asset--health so we can function, education to prepare us for the future, and job training in the Department of Labor, I would ask him if--and I have said publicly that I intend to vote against this bill as a protest unless my vote is needed. And I know that is unusual for the chairman of the subcommittee to take that position. But I believe that Senator Harkin and the subcommittee and full Senate and I have done what we can on a bill subject to limitations that we have. I would ask the Senator from Iowa if there is anything more we could do given the restrictions as to allocation of what we were facing?

Mr. SPECTER. Madam President, there is time available on the bill, the Labor, Health and Human Services, and Education bill, for those who wish to speak in favor of it. If any of my colleagues wish to do so, I invite them to come to the floor at this time. If there are no speakers in favor of the bill on our time, I intend to utilize this time for a discussion on the PATRIOT Act, which has a very limited amount of time to debate and discuss these issues. But I renew my statement. If anybody wants to speak in favor of the bill, they should come to the floor at this time and we will find time for them to speak.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affaris be authorized to hold an off-the-floor markup during the session on Thursday, December 15, 2005, to consider the nominations of George W. Foresman to be Under Secretary for Preparedness, U.S. Department of Homeland Security, and Mary M. Rose to be Member, Merit Systems Protection Board. Agenda Nominations (1) George W. Foresman to be Under Secretary for Preparedness, U.S. Department of Homeland Security. (2) Mary M. Rose to be Member, Merit Systems Protection Board. Post Office Naming Bills (1) S. 1445, a bill to designate the facility of the U.S. Postal Service located at 520 Colorado Avenue in Arriba, CO, as the ``William H. Emery Post Office.'' (2) S. 1792/H.R. 3770, a bill to designate the facility of the U.S. Postal Service located at 205 West Washington Street in Knox, IN, as the ``Grant W. Green Post Office Building.'' (3) S. 1820, a bill to designate the facility of the U.S. Postal Service located at 6110 East 51st Place in Tulsa, OK, as the ``Dewey F. Bartlett Post Office.'' (4) S. 2036, a bill to designate the facility of the U.S. Postal Service located at 320 High Street in Clinton, MA, as the ``Raymond J. Salmon Post Office.'' (5) S. 2064, a bill to designate the facility of the U.S. Postal Service located at 122 South Bill Street in Francesville, IN, as the ``Malcolm Melville `Mac' Lawrence Post Office.'' (6) S. 2089, a bill to designate the facility of the U.S. Postal Service located at 1271 North King Street in Honolulu, Oahu, HA, as the ``Hiram L. Fong Post Office Building.'' (7) H.R. 2113, a bill to designate the facility of the U.S. Postal Service located at 2000 McDonough Street in Joliet, IL, as the ``John F. Whiteside Joliet Post Office Building.'' (8) H.R. 2346, a bill to designate the facility of the U.S. Postal Service located at 105 NW Railroad Avenue in Hammond, LA, as the ``John J. Hainkel, Jr. Post Office Building.'' (9) H.R. 2413, a bill to designate the facility of the U.S. Postal Service located at 1202 1st Street in Humble, TX, as the ``Lillian McKay Post Office Building.'' (10) H.R. 2630, a bill to designate the facility of the U.S. Postal Service located at 1927 Sangamon Avenue in Springfield, IL, as the ``J.M. Dietrich Northeast Annex.'' (11) H.R. 2894, a bill to designate the facility of the U.S. Postal Service located at 102 South Walters Avenue in Hodgenville, KY, as the ``Abraham Lincoln Birthplace Post Office Building.'' (12) H.R. 3256, a bill to designate the facility of the U.S. Postal Service located at 3038 West Liberty Avenue in Pittsburgh, PA, as the ``Congressman James Grove Fulton Memorial Post Office Building.'' (13) H.R. 3368, a bill to designate the facility of the U.S. Postal Service located at 6483 Lincoln Street in Gagetown, MI, as the ``Gagetown Veterans Memorial Post Office.'' (14) H.R. 3439, a bill to designate the facility of the U.S. Postal Service located at 201 North 3rd Street in Smithfield, NC, as the ``Ava Gardner Post Office.'' (15) H.R. 3548, a bill to designate the facility of the U.S. Postal Service located on Franklin Avenue in Pearl River, NY, as the ``Heinz Ahlmeyer, Jr. Post Office Building.'' (16) H.R. 3703, a bill to designate the facility of the U.S. Postal Service located at 8501 Philatelic Drive in Spring Hill, FL, as the ``Staff Sergeant Michael Schafer Post Office.'' (17) H.R. 3825, a bill to designate the facility of the U.S. Postal Service located at 770 Trumbull Drive in Pittsburgh, PA, the ``Clayton J. Smith Memorial Post Office.'' (18) H.R. 3830, a bill to designate the facility of the U.S. Postal Service located at 130 East Marion Avenue in Punta Gorda, FL, as the ``U.S. Cleveland Post Office Building.'' (19) H.R. 4053, a bill to designate the facility of the U.S. Postal Service located at 545 North Rimsdale Avenue in Covina, CA, as the ``Lillian Kinkella Keil Post Office.''

Mr. SPECTER. Mr. President, I ask unanimous consent at the Select Committee on Intelligence be authorized to meet during the session of the Senate on December 15, 2005, at 2:30 p.m., to hold a closed meeting.