Arlen Specter

Mr. SPECTER

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. May I inquire when later, Madam President?

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

Mr. SPECTER. Reserved, but later?

Mr. SPECTER. Mr. President, the Senator from New Hampshire is wrong on what this law provides. When he picks up the national security letter and says it may be challenged only on the bad faith requirement, he is wrong. There may be a challenge and the national security letter may be quashed under the express terms of the conference report if it is unreasonable or oppressive. The national security letter was not created by the PATRIOT Act, but we took this occasion to put civil liberty safeguards in this bill on the national security letter by eliminating the prohibition against consulting with a lawyer. Today, if you get a national security letter, you can't talk to a lawyer. The conference report gives an explicit right to talk to a lawyer. There had been a provision that before you talked to a lawyer you had to tell the FBI who the lawyer was. Senator Leahy raised an objection to that point, and he was right, and it was corrected. Yet if the FBI asks you who your lawyer is, then you have to tell them. But you don't have to go to the FBI first and disclose who your lawyer is. But there are significant changes in the conference report beyond the bad-faith issue that the Senator from New Hampshire talks about, and we ought to recognize that. But this conference report goes a long way to protect civil liberties by specifically saying you can go to a lawyer and get it quashed for certain reasons. As to the bad-faith requirement, the Senator from New Hampshire skims lightly over the fact that the Senate bill was even tougher than the conference report by going on to other sections. That is obscuring the issue. Take up the bad-faith requirement. I already read it a couple of times, this morning and on Monday and on Tuesday. But the Senate language was identical. But the conference report is more protective of civil liberties because, while the Senate bill said the Government had to certify anybody in the Government, the conference report requires a ranking official. But the Senator from New Hampshire then skips over to the 7-day requirement on notification. There is already a protection of civil rights because the court has to make a finding that the delayed notice is important to the investigation, or will hinder the investigation. To have the Fourth Circuit saying ``45 days'' when you have the current law saying ``reasonable,'' which could be anything, as a bargaining matter, we come with the Senate report at 7 and the House is at 180. We compromised at 30, and I think that is not unacceptable. Is it what Arlen Specter would like, or what Senator Sununu would like? But when the Senator from New Hampshire talks about getting an agreement where the House and Senate disagrees and you have an impasse, you don't have a bill. Chairman Sensenbrenner went the extra mile. Is he going to go further? That is a big question? If there is an impasse, there is no bill. To repeat, if cloture is not invoked, we don't have a bill, and I will go back to work. I will go back to the drawing board, and I will try to get a bill. But that doesn't say that there will be a bill when the majority leader has said he is not going to take up an extension and you have to get agreement from the House. On the section 215 provision, the conference report does give additional leeway beyond the three-pronged test. But we still have judicial review which you do not have today; and that is the traditional way of interposing the impartial magistrate between the citizen, on the one hand, and the law enforcement officers on the other. There have to be many hurdles gone through to get a terrorism investigation authorized. It is only a terrorism investigation where the court can allow the latitude to get somebody's records where it is important to the investigation. I yield the floor.

Mr. SPECTER. Mr. President, the Senator from New Hampshire is mixing apples and oranges. When he talks about bad faith, he is talking about disclosure. When he talks about a motion to quash a national security letter for its being unreasonable, it may be quashed on that ground alone. I am not going to ask the question again. I asked it twice. On neither occasion was there an answer that it was too high a bar to quash a national security letter if it is unreasonable. I will let my colleagues decide that who are voting on this. If the court has latitude to quash the national security letter because it is unreasonable, this is a fair standard. When the Senator from New Hampshire--if I could have his attention before he leaves--talks about 30,000 national security letters, I already said on the floor that is the Washington Post. But that is not accurate. I have invited my colleagues, and I will not ask the Senator from New Hampshire if he has sought a classified briefing. But I can't tell you what the answer to that is. Although I have asked the Department of Justice to release information to show the Washington Post statement of 30,000 is out of line and not accurate, I ask my colleagues not to vote on this bill based on what they read in the Washington Post. Where you have a contested issue--and I put this before the Senate on Monday--go to the Department of Justice, they will give you a classified briefing and tell you what the facts are. Don't vote on this bill by what you read in the Washington Post. I yield the floor.

Mr. SPECTER. Mr. President, I have the floor. I have not propounded the question yet. National security letters have been in existence for decades. While we take up the PATRIOT Act, we have used this occasion to add protections so that whereas today they are secret, we have explicitly provided the right to consult with a lawyer. I don't disagree there ought to be that right without providing it explicitly. Somebody ought to be able to go to a lawyer, but if they get a national security letter today, they are betwixt and between. Originally, this legislation had a requirement you had to tell the FBI who the lawyer was. The FBI wanted that provision because there are some lawyers who have been alleged to be involved in collusion with the terrorist organizations. As I said earlier, Senator Leahy objected to that and I agreed that you ought to be able to hire your own lawyer. If the FBI asks, okay, it is a fair request and you can tell them. Then we provided you can quash those national security letters if they are unreasonable. If you go to a judge and you say, this is unreasonable, now the standard of reasonableness is all over the law, what a reasonable man would do. Is that too high of a bar? There is judicial review. You come to the point of disclosure where you have the issue as to whether disclosure will impede the investigation. All through the law, there are limitations on disclosure where there is a legitimate law enforcement concern about not impeding an investigation. The determination as to whether you have a national security issue or are impeding diplomatic relations is a pretty touchy subject. We passed a Senate bill with a provision that on national security letters--until now there has been no challenge possible at all. We put statutory challenges in our Senate bill, and renewing a nondisclosure requirement, the certification by the Government--anybody in the Government, no delineation as to who--``that disclosure may endanger the national security of the U.S. or interfere with diplomatic relations shall be treated as conclusive unless the court finds the certification was made in bad faith.'' That is a pretty tough standard. But that was the Senate bill. Then in the conference report, we kept it. The Senator from Oregon was one of 100 Senators who did not object to the PATRIOT Act being passed by unanimous consent. But in the conference report we said let's do a little more here. Before you have a certification, let's make sure it is somebody who has a lot of responsibility--the attorney general, Director of the FBI, deputy attorney general, et cetera. My question to the Senator from Oregon is this: Aren't those at least somewhat meritorious in protecting civil liberties? Should we have gotten in conference--in a tough conference where Chairman Sensenbrenner, head of the House Judiciary Committee, went the extra mile--should this bill go down? Should this bill be filibustered because of that provision?

Mr. SPECTER. I want to call my colleagues' attention to the fact that we received a letter from nine Senators yesterday who are opposed to the PATRIOT Act. We have a detailed reply which is now being circulated. Again, I ask my colleagues to deal with the specifics. Anybody who has any concerns about any specific provisions, come to the floor and we are prepared to discuss them and see if we can satisfy those concerns. Beyond that, I will inform our colleagues as to what this bill is all about so there will be as much information as possible before the vote. I yield the floor.

Mr. SPECTER. We did not get Senator Craig. Mr. President, when the six Senators wrote a letter with a lot of concerns, we responded with a seven-page letter. When yesterday we received a letter with nine Senators, we responded with an eight-page letter which the staff has worked on. We have had extraordinary staff working on all sides. This goes for my staff, this goes for Senator Leahy's staff. The Judiciary Committee has not had any time off. We had an August recess for the Senate but not for the Senate Judiciary Committee.

Mr. SPECTER. There is no doubt about that. I sought recognition, and it is on my time. There is no doubt about that at all.

Mr. SPECTER. The interruption of the Senator from Wisconsin can be charged on his time. As to section 215, the Senator from Colorado is wrong. The conference report provides that there may be a ``challenge to the legality of the order by filing a petition with the FISA court,'' and that petition can take up the gag order. When he talks about the standards, there are the three criteria from the Senate bill, but there is an additional provision that the judge, judicial review on a terrorism investigation which has been authorized by going through quite a number of hurdles, those records are important for a terrorism investigation. If the Senator is talking about library records, it has to be the Director of the FBI or the Assistant Director, or the number-three man. They cannot be delegated. So there are really safeguards and protections for civil liberties in this bill. We hung tough and we got them. When the Senator from Colorado talks about the conference report on delayed notice, so-called sneak and peak, not much better, I will let my colleagues evaluate whether the Senator from Colorado is right or the Senator from Pennsylvania is right. Currently, under the PATRIOT Act, the only limitation is a reasonable period of time, which can be anything. The Senate bill came in at 7 days. The House bill came in at 180 days. The Fourth Circuit has said that 45 days is a reasonable period of time. Bear in mind that these delayed notice warrants are not issued unless the impartial judicial official standing between the citizen and the law enforcement officer, the judicial official, is satisfied that there ought to be a delay. If there is a customary search-and-seizure warrant which goes out, the target knows they have been served, but these are surreptitious. These are secret. There has to be a showing that the investigation will be harmed. When we put in 7 days, we were not unaware that there would be negotiations and that the House came in at 180 days. I think we had a pretty good result from the Senate's point of view to concede 23 days and the House conceded 150 days. So if the Senator from Colorado thinks that is ``not much better,'' I will rely on my colleagues to decide whether the Senate bill is not a whole lot better as a result of what we did. When he talks about the national security letters, I made this point several times on the floor, but perhaps the Senator from Colorado has not heard it because he continues to assert the Washington Post story. There have been briefings available, as I said earlier, and the Senator from Colorado can get one from the Department of Justice, that 30,000 figure is wrong. I cannot say what it is because it is classified, and I have asked the Department of Justice to make it an unclassified disclosure, which they have not done so far. I ask the Senator from Colorado, and I ask all of my colleagues, not to vote on this bill based on what they read in the Washington Post. If they have some concerns, come to the floor and we will find time to listen to their concerns and we will see if we can satisfy them, and certainly in that process inform other Senators as to what this bill is all about. I think we have come to grips with the concerns which the Senator from Colorado has articulated.

Mr. SPECTER. Mr. President, when the Senator from Hew Hampshire talks about a high bar for upsetting a national security letter, he overlooks the provision that you can quash, if it is unreasonable. If the judge finds it is unreasonable, is that too high a bar?

Mr. SPECTER. On my time, I redirect the question to the Senator from New Hampshire who says the bar is too high. Is it a high bar to quash a national security letter, if a court finds it is unreasonable?

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 suggest it be on the time of Senator Leahy.

Mr. SPECTER. Mr. President, I think the Senator from Wisconsin does not know the difference between an apple and an orange. This is not a criminal proceeding. If you have a criminal proceeding and a search warrant, you go into a court with a motion to quash and you put on witnesses, although some of those may be in camera. I was a district attorney for 8 years and there are occasions where they are in camera. If there are national security issues involved, they are consistently in camera on a variety of procedures. To say that I am mixing apples and oranges when you compare this to a criminal proceeding simply indicates the Senator from Wisconsin does not know the definition of an apple. I yield the floor.

Mr. SPECTER. Madam President, I encourage anyone who has issues of concern to come to the floor at this time so we may consider them. This is a very complicated Act. We have had some debate already. On Monday, I spoke at some length to describe the Act. On Tuesday, Senator Feingold and I had an extended discussion on the act. I talked to other of my colleagues who have raised questions about it, specifically the Senators who have favored a filibuster. And anybody who has an issue which they wish to raise, I would invite them to come to the floor so we can take up their concerns one by one. It will be illuminating, I think, to other Senators to hear what we are doing on these issues. At the outset, I will address some issues which have already been raised. One contention has been raised by one Senator on a change in the Senate bill to the conference report on challenging efforts to obtain documents under section 215. The conference report permits the recipient of a 215 order to ``challenge the legality of that order by filing a petition [with the Foreign Intelligence Surveillance Court].'' That provision omits a phrase from the Senate bill which says that they may ``challenge the legality of that order, including any prohibition on disclosure, by filing a petition with the Foreign Intelligence Surveillance Court.'' And the provision is illuminated on, including any prohibition on disclosure. Now, one Senator has contended that limits the challenge on disclosure, on the so-called gag order, which is not true. Under the conference report, under section 215, you may challenge the order, and that includes challenging a gag order on nondisclosure. This phrase ``including any prohibition on disclosure'' was stricken by the conferees, and I believe, on a fair representation, on agreement by the distinguished ranking member and me. He is, of course, free to speak for himself. But the reason it was stricken--whether it was with Senator Leahy's concurrence or not--was we did not want to limit the grounds for the court on reviewing the order. If you say there is a specification on prohibition of disclosure, it may raise the inference that is the reason the court would challenge legality. But there is no limitation on the challenge to legality. That would enable the petitioner to challenge legality on disclosure or for any other reason. So the opportunity to stop a gag order is preserved under the conference report. A second contention which has been raised is that the conference report, on section 215, should not have gone beyond the three criteria for establishing a foreign power. In a closed-door briefing, the Government presented persuasive reasons to have latitude for the court to authorize an order for other tangible things, records, where there was a terrorism investigation and there was good reason to believe these other tangible records were important for that terrorism investigation. That was not in the Senate bill, but that was a provision that was insisted upon and pressed for by the House, and I thought it was within the realm of reason, and we included it. But the protection of civil liberties is present in the conference report because the court has to find that it is a justifiable request on a terrorism investigation and important to that terrorism investigation. I have already gone into some detail on the protections in the bill for delayed notice provisions, so-called sneak and peek, where the Senate bill had a 7-day requirement, the House bill had 180 days, and we compromised at 30 days. The Ninth Circuit said that 7 days was presumptively reasonable. The Fourth Circuit has set the time at 45 days. In putting in a 7-day notice, we were not unaware of the fact that was a good negotiating position from which to start. The House made a concession of 150 days, going from 180 to 30. We made a concession of 30 days. Bear in mind, on the delayed notice, that is where there is a surreptitious, secret search. There has to be justification to get a search warrant to have a delayed notice, and it has to be shown to the satisfaction of the judge that if there was not that delay, the investigation would be impeded. Bear in mind, for those listening, the traditional safeguard on civil liberty is to interpose an impartial magistrate between the police, law enforcement, and the citizen, so that when you have a delayed notice provision on a showing of cause, that it would impede the investigation if that were not the case. We have already gone over in some detail in the Record the tightening of the provisions on roving wiretaps, where you have to identify the person involved and show that individual is likely to seek to evade the wiretap as a justification. A key provision we added on the Senate side was the sunset provision, where the Senate bill was a 4-year provision, and the House bill was 10 years. The House wanted to compromise at 7, and we held fast. We had assistance from the White House. The President was personally notified about this. The Vice President participated. We got that 4-year sunset, which is vital, so there will be a review of all of these provisions within the 4-year period. Bear in mind that the sunset applies to the three controversial provisions in the PATRIOT Act. It does not apply to the national security letters because the national security letters were not authorized by the PATRIOT Act. They have been in existence for decades. Now I come to a key consideration under the national security letters, where some have objected to the conclusive presumption, where there is a certification as provided for in the conference report by ranking officials that nondisclosure is required because disclosure would hinder national security or would hinder diplomatic negotiations. I have discussed this in the past, but it is worth repeating. The Senate bill that was adopted unanimously, 18 to 0, in committee, and without consent on the Senate floor, had the provision which is virtually identical to the conference report. The Senate bill provides that in reviewing a nondisclosure requirement: The certification by the Government that disclosure may endanger the national security of the United States or interfere with diplomatic relations shall be treated as conclusive unless the court finds that the certification was made in bad faith. That language is carried over in identical form in the conference report, with the addition that the conference report is more protective of civil liberties because the certification cannot be made by just anybody in the Government; it has to be made by a ranking official, such as the Attorney General or Deputy or head of the FBI. Again, let me invite those who have questions on the bill to come to the Chamber so we can have a discussion. If anybody has challenged any of the provisions, I invite them to come and state their concerns. I believe it is in the interest of the consideration by the Senate that we consider the bill in detail so that the Members can understand it and we can deal with specific objections that anyone has. How much time remains of the hour in the morning session?

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Of course they are different.

Mr. SPECTER. On my time, what apples and oranges am I mixing, I ask Senator Feingold?

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. President, without getting into methamphetamine, where we have accommodated the interests of the Senator from Oregon and other Senators by putting them on this bill because it is a measure which ought to proceed, let me ask the Senator from Oregon, when he complains about the national security letters, I ask whether the conference report is not a big step over existing law? National security letters have been in existence for decades.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Thursday, December 15, 2005, at 10 a.m., for a hearing titled, ``Hurricane Katrina: Who's In Charge of the New Orleans Levees?''.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, December 15, 2005, at 10 a.m. on pending committee business.

Mr. SPECTER

Mr. SPECTER. Mr. President, I shall be brief. I know two Senators are waiting to speak. I congratulate the House of Representatives for approving the conference report by a significant margin. I thank the majority leader for moving ahead procedurally with filing of the cloture motion. There have been a number of public statements made by Senators about an intention to filibuster. We are obviously at the conclusion of our work and we want to proceed. I am advised by the distinguished majority leader that this conference report will be on the floor tomorrow. I urge my colleagues to come to the Senate to debate the issue. It is a complicated bill. I addressed it at some length the day before yesterday with a floor statement, moving into the critical areas. Yesterday, Senator Feingold and I had an opportunity to discuss the bill for almost an hour. It is valuable for our colleagues to know the details as to what is in the bill. That can be best accomplished by an interchange of ideas, those who have objections stating them, and hearing the responses so that we may fulfill our responsibility as the world's greatest deliberative body. I look forward to that exchange and debate. I believe it is an acceptable bill, a good bill, not a perfect bill. I am prepared to go into detail. I have talked to many of my colleagues one on one, individually, and I have found, understandably, because of the complexity of the bill, that many of its provisions are not fully understood as to what they mean and what the import is and why we have come to this. Ideally, I would like to have seen the Senate bill go through unanimously, passed by the Judiciary Committee 18 to 0, and then on the unanimous consent calendar here, which is, I think, unprecedented for a bill of this magnitude. But we have a bicameral system, and we conferred at length with our colleagues in the House of Representatives and are presenting the conference bill, which I submit is a good bill that I am prepared to advocate tomorrow. I urge those who want to speak to come to the Senate tomorrow morning when we take up the bill and have a constructive debate so our colleagues may be informed about the contents and vote on the cloture motion in a timely way and hopefully move forward to consideration on an up-and-down vote. I thank my colleagues from Louisiana and Iowa for yielding this time.