Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that a letter dated November 4, 2005, and a letter which I signed along with some 69 other Senators, dated February 4, 2003, be printed in the Record.

Mr. SPECTER. Mr. President, I want to take an additional moment or two, while I have the floor, to make a brief argument in support of the motion which is going to be offered by Senator DeWine and Senator Byrd to instruct the budget conferees to drop the repeal of the Continued Dumping and Subsidy Offset Act. This legislation was passed in the year 2000 under a program which allows the Bureau of Customs and Border Protection to distribute duties collected on unfairly traded imports to those U.S. businesses and their workers who have been injured by dumped or unfairly subsidized imports. Over 700 companies in almost every State of the Union, including many small- and medium-sized companies, have received distributions under this act, benefitting producers and workers in lumber, crawfish, shrimp, honey, garlic, cement, mushrooms, steel, bearings, raspberries, furniture, semiconductor chips, and a broad range of other industries across the Nation hurt by continued unfair trade. My State, Pennsylvania, has been a victim to a very substantial extent. Companies in a variety of industries, including those that produce steel, cement, agriculture, and food products, have benefitted from the $1.261 billion since this program was put into operation. The World Trade Organization has objected to this provision, and it is my hope that the administration will fight the World Trade Organization's conclusion. There have been instances in the past where the World Trade Organization has said our practices violate their laws, and our executive branch has gone to fight them to make a change. I think that is what they should do here. This compensates the companies and the workers who have been victimized by these unfair trade practices. As a matter of basic and fundamental fairness, this money ought to continue going to that. In the interest of brevity, I ask unanimous consent that the complete text of my statement be printed in the Record following my oral remarks.

Mr. SPECTER. I thank the Chair and thank my colleague from New Mexico, who has been waiting patiently, or at least waiting, and yield the floor.

Mr. SPECTER

Mr. SPECTER. I have the floor, but I will yield to the Senator from Wisconsin on unanimous consent. I saw Senator Byrd one day perfect this, and I will not make a mistake of yielding without reserving the right to the floor.

Mr. SPECTER. Mr. President, the problem with the renewed argument by the Senator from Wisconsin is not on 7 days or 30 days, it is on 1 day. It is on any sneak and peek. It is on any delayed notification. Law enforcement has that latitude because they need to continue the investigation. If a disclosure is made, it will impede an investigation. A short period of time enables them to continue the investigation without alerting the target. One day would be too long for the argument which is made by the Senator from Wisconsin. We are conducting this debate as if we have a law enforcement community in this country made up totally of rogues who have no regard for the rights of the individual. And when they get a delayed notice warrant, bear in mind, my colleagues and the Senator from Wisconsin, they have gotten judicial review on this sneak-and-peek warrant. On this delayed notification warrant, they have gone to a judge and have gotten leeway on standards which are set forth and articulated in the PATRIOT Act. Mr. President, the Senate is not in order.

Mr. SPECTER. Back to the substance of the argument: this period of time, the less, the closer to the Senate position the better. But this is not some random act of a rogue law enforcement officer. This is a delayed notice warrant which has been obtained by going to an impartial magistrate and by showing cause and by showing reason to have this delayed notice. Mr. President, the Senator from New Hampshire was on the floor earlier today and has raised a number of arguments. I see other of my colleagues on the floor seeking recognition so I will not take these up at this time. But I would invite my colleagues to examine what the Senator from New Hampshire has had to say in the context of the debate which I have had with the Senator from Wisconsin because I think they are covered. But I will want to deal with them specifically. I would point out--I am looking through the transcript for a moment on some of the things which he has had to say. There are also some comments made by the Senator from Vermont, the distinguished ranking member, which I will comment about later. We will have a debate.

Mr. SPECTER. Mr. President, I did not acquiesce in this matter simply as a matter of druthers or nondruthers. I acquiesced in this matter because it was, as a total scheme of things, acceptable. There was adequate protection. It is not, as the Senator from Wisconsin defines it, broad-ranging authority of a judge. The impartial judicial official has to agree that it is a terrorism investigation, and that these records are crucial and important to the investigation, that they are relevant to the investigation, and it is not something that is extraneous but it is a terrorism investigation. I focus on this matter again not with any expectation of persuading the Senator from Wisconsin but to tell my colleagues why he is objecting to this provision, and to invite my colleagues, the other 98 Senators, if they want the briefing, to see why there were sensible reasons for the Department of Justice and the details of this provision not going too far, not impinging on civil liberties because I wouldn't support a bill which impinged on civil liberties. I simply wouldn't do it. But there are others who have contentions, and we had a great many concessions from the House of Representatives. I have taken up the two principal considerations which the Senator from Wisconsin was arguing, the conclusive presumption in the national security letter and this additional provision under section 215. But I want to come back for a moment to the national security letter on important concessions which the Senate obtained in the conference report, first, to point out that the national security letter was not established by the PATRIOT Act which we enacted shortly after 9/11. The national security letters have been in existence for decades. But the Senate utilized the revisions to the PATRIOT Act to put limitations on the national security letters because they fit within the overall parameters. We have some very important concessions on national security letters in the conference report. The standard has always been that if you had a national security letter, you kept quiet about it, the recipient did. There was no explicit opportunity for the recipient of a national security letter to challenge it. But the conference report fixing up the Senate provision explicitly gives the recipient of a national security letter the right to contact an attorney, to go to court, and to have a national security letter quashed, if it is unreasonable, oppressive, or otherwise contrary to law. The recipient also has the power to get a court order to tell the target. That is subject to a certification by these high-ranking governmental officials that it would endanger national security or diplomatic relations. But again, the provision in the conference report is more protective of civil liberties than what was in the Senate report. On this provision on national security letters, the conference report goes much further than existing law. Again, the national security letters were not covered in the PATRIOT Act. I don't have a question for the Senator from Wisconsin. I will come to some later, but I ask unanimous consent that I might yield to the Senator, if he cares to reply at this point to what I have said, without losing my right to the floor.

Mr. SPECTER. Mr. President, I suggest that the Senator from Wisconsin get a classified briefing and not accept what he reads in the Washington Post. The Washington Post is wrong. I hope the Senator from Wisconsin will not leave the floor. If I can have the attention of the Senator from Wisconsin, I hope he will not leave the floor while I make a couple of other comments. I will try to be brief, although I don't think it has been extensive so far.

Mr. SPECTER. Let me be brief with one comment about 30,000. I urge the Senator from Wisconsin to get a classified briefing and not to take the facts of the Washington Post, because the Washington Post is totally wrong. I am not at liberty to tell the Senator what the facts are, although I asked the Department of Justice to put those facts before the public. Too much is classified, and I think this is inappropriately classified. I would like to be able to detail it. Let me talk about the delayed notice provisions. Existing law provides for notification of the target in a reasonable period of time, which could mean anything. The Senate bill called for 7 days, the House bill wanted 180 days, and we got 30 days. I suggest in the totality of the legislation that we are in the 85 to 15-percent range, 85-percent Senate provisions, 15-percent House provisions, and the 15 percent which the House has does not impinge on civil liberties. I wouldn't take 1 percent if this were an inappropriate impingement on civil liberties. The 30 days can be extended by a court on cause shown for specific reasons. With respect to the wiretap provision, I joined the Senator from Wisconsin in opposing the roving wiretaps. I have never liked wiretaps. When I was district attorney for Philadelphia, this issue came up for consideration of our body, and I was the only one of 67 county district attorneys to object to wiretapping. Since I can only be brief here, I would invite my colleagues again--I know I am not going to persuade the Senator from Wisconsin. In talking about the late notice and talking about the wiretap provisions, I want my colleagues to look at the details as to how we have protected against random selection on the specification, a description of the person who is to be wiretapped, and showing that the person subject to the wiretap is likely to try to avoid the wiretap. The final comment I have to make is about sunsetting. The House put in a provision for a 10-year sunset. The Senate put in a provision for a 4-year sunset. The House wanted the compromise of 7 years, halfway between 4 and 10. The Senate conferees insisted on a compromise at 4 years. The House said it was not much of a compromise, not when they were at 10 and the Senate was at 4 years. I thank the White House for assistance in working this detail out. We did so on the expectation that by working the sunset to 4 years, we would have a number of Senators' signatures on the conference report and a number of House signatures on the conference report. I am not going to wash that linen in public as to what happened but only to say that our ability to review this bill at 4 years is a mighty potent weapon to keep law enforcement on its toes, knowing it is going to be subject to review in that period of time. I have pledged privately and publicly and again in the Senate yesterday to have extensive and piercing oversight as to what law enforcement does. I think the Senator from Wisconsin will agree on the point that in the year I have been chairman, there has been real oversight. We have called for it and done a job here. The debate has been very useful. I don't have any questions to pose to the Senator from Wisconsin. I am glad he is here to respond so the other side can be articulated and so my colleagues can make their own evaluation as to the weight of the objection of the Senator from Wisconsin to section 215, which is very limited to that one additional provision, which is justified, so they can evaluate his objection to the national security letters where the conclusive presumption is tighter in the conference report than in the Senate version and other protections, and the protections on delayed notice, so-called sneak and peek, and wiretaps, and then especially on sunset. The debate is very illuminating and does more than the speech I gave yesterday. There is nothing as dull as a speech on the Senate floor and nothing as lively as a little debate. This Senate has very little debate, very little exchange of ideas where Senators come and in a respectful way pose questions and in a respectful way give answers to illuminate rather than obfuscate; no table-pounding. I thank the Senator from Wisconsin for what he has done this year on the committee and for his thoughtful approach here, albeit wrong, albeit not persuasive and should not carry the day. I thank him for his contribution. Without yielding the floor, I ask unanimous consent I may yield to the Senator from Wisconsin without losing the floor.

Mr. SPECTER. I thank the Senator from Wisconsin. The last comments made the argument better than I have during the course of the last hour when he chastises me for agreeing to 30 days when I voted for 7 days but the House bill has 180 days. That is a reason to vote against the bill. He has made my case. When you take up an issue about what is fair and appropriate and adequately protective of civil rights as to when the target should be notified as to a surreptitious or secret search of his apartment, and you have an existing bill which says a reasonable period of time--which could be anything--and the Senate comes in at 7 days and the House comes in at 180 days, there is no real concession on civil liberties. The House made a concession of 150 days, from 180 to 30. The Senate made a concession of 23 days, from 7 to 30. I ask the other 98 Senators whether this is a meritorious argument, a weighty argument, or more of scintilla. That is an expression we use in the law when the item has virtually no weight. In the common law, they talk about a peppercorn being adequate for consideration. But this is a scintilla. Maybe this is not even a scintilla, to say a concession from 7 to 30 days is meaningful. I am glad the Senator from Wisconsin made that as his final, persuasive, overwhelming argument because that illustrates the flimsiness of the considerations.

Mr. SPECTER. The Senator from Wisconsin has raised an issue on the national security letters with respect to the presumption which arises when a high-ranking governmental official, such as the Attorney General, Deputy Attorney General, Assistant Attorney General, head of the FBI, or head of the departments making the request, certifies that there is a national security interest or an issue of diplomatic relations. This is an issue which, as I understand it, the ranking member, the Senator from Vermont, Mr. Leahy, raised earlier. The question I have for the Senator from Wisconsin is whether he is aware of the fact that the conclusive presumption, which is present in the conference report, is not as tight as the conclusive presumption which was present in the Senate bill which passed unanimously from the Judiciary Committee, of which the Senator from Wisconsin is a member, and by unanimous consent on the floor of the Senate, without objection by the Senator from Wisconsin. I refer specifically to the provision in the Senate bill which says: In reviewing a nondisclosure requirement, the certification by the Government that the 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 substantially repeated in the conference report, except that the conference report makes it tougher on the governmental certification by requiring the high-level official to make the certification. Quoting from the conference report, it says: If at the time of the petition the Attorney General, the Deputy Attorney General and Assistant Attorney General or the Director of the Federal Bureau of Investigation or, in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality--and now we come to the crucial language, continuing-- certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith. My questions to the Senator from Wisconsin are the obvious ones: No. 1, was he aware that the conference report has the identical provision, except more restrictive, and if so, why does he now object to this provision in the conference report when he approved it in committee and raised no objection on the floor?

Mr. SPECTER. Mr. President, the national security letters are stronger in the conference report than they were in the Senate bill. The conclusive presumption in the conference report is more protective than the language in the Senate bill on conclusive presumption. The conference report picking up the Senate bill provisions improves the civil liberties protection from existing law by the explicit right of the recipient to go to court to quash or to make the disclosure to the target.

Mr. SPECTER. One moment, and then I will yield for the Senator's reply. The point is, the Senate came to this conclusive presumption and the Senator from Wisconsin voted for it. The full Senate came to this conclusion. The Senator from Wisconsin did not object to it. So I think it is rather late in the day--frankly, too late in the day--for the Senator from Wisconsin to say that a provision which he has approved is the basis for rejecting the conference report because the conference report did not do something he would have liked better. Now, without yielding the floor, I ask unanimous consent that the Senator from Wisconsin be allowed to make whatever comments he chooses on this point.

Mr. SPECTER. Mr. President, the Senator from Wisconsin does not know what I did in conference because he was not a conferee. There is no reason why he should know. But I can tell him that I fought very hard for a lot of these provisions, and I can tell him further that I was not persuasive enough to get 100 percent of what I wanted.

Mr. SPECTER. Mr. President, before the Senator from Wisconsin leaves the floor, I request that he be available to discuss some of the provisions of the PATRIOT Act. I see him remaining on the floor, so permit me at this time to take up a couple of the issues which the Senator from Wisconsin has raised, appropriately putting my question to the Chair as our rules require, and then asking for responses.

Mr. SPECTER. Wait just a minute. I have the floor. I want to finish this, and I will come back to the Senator from Wisconsin and give him ample time to comment on what he wants to comment on. We have a bicameral system. If the Senate could act alone, we would have had the Senate bill. When the Senator from Wisconsin says he was not satisfied with this provision in the Senate bill contrasted with the SAFE Act, I would not disagree with him about that. I will not disagree with him about that at all. In the Senate bill, I did not have everything that I would like. There are 17 other members of the Judiciary Committee and there are many members who thought the Senate bill went too far on civil rights. It was necessary to balance very delicately to get 18 Senators to agree, sort of unheard of, and I will not go over the composition of the committee, but we have people from opposite ends of the political spectrum on that committee.

Mr. SPECTER. I will yield on the condition that I not lose my right to the floor.

Mr. SPECTER. Mr. President, I do not disagree with everything the Senator from Wisconsin has said. In fact, I like part of it where he said I was brilliant, I like the part where he said I was a tremendous chairman, but there were other parts with which I disagree as to what he said. A little levity will not hurt this debate any. I focus only on national security letters at the outset, to establish the point that the conference report is more protective of civil liberties on that point than the Senate bill. I want to go on to the other points. I have only faint hopes of persuading the Senator from Wisconsin to support the conference report, but I do think it is very useful to have this discussion because he is, appropriately, very deeply involved in this bill and there is no better way to acquaint our colleagues and the staffs--perhaps two or three people watching on C- SPAN2--to acquaint America, to the extent we can, with what we are doing here. On to section 215: Section 215 involves business records and the highly controversial point on library records. The Senator from Wisconsin is correct that the existing law is deeply flawed. Bear in mind, we are living under that law until we pass a new law. That is the law we are operating under today. Existing law enables a law enforcement official unilaterally to go to get records on his determination that they are relevant, and there is no judicial review. What the Senate bill did, and what the conference report perpetuates, is to put in judicial review. The traditional safeguard of liberty has been to interpose a disinterested, impartial magistrate between law enforcement and the citizen. That is what happens when you get a search-and-seizure warrant to establish probable cause. That is what happens when you get an arrest warrant to take somebody into custody. We have moved substantially toward that cause, although not quite probable cause for a search warrant or an arrest warrant, but a very substantial portion of the way by the Senate bill, which is perpetuated in the conference report, that a court may issue an order for records only on ``a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation to protect against international terrorism.'' The Senate bill established three criteria for the relevant standard. First, activities of a suspected agent of a foreign power; second, a foreign power or agent of a foreign power; third, an individual in contact with or known to a suspected agent of a foreign power. In conference we did add an additional provision, which the Senator from Wisconsin has objected to. The additional provision is that the judge may order the production of records of an individual where the judge concludes those records are important--crucial to the investigation, to a terrorism investigation. If I had my druthers, I wouldn't have put the provision in, but we had a closed-door briefing where the Department of Justice came in and showed us what they consider to be needed. I thought it was within the realm of reason, but I knew it would be an obstacle to getting the law put into effect and getting support for that provision, and I opposed it. But when I recognized that there are other points of view besides mine and besides the Senate's, and without a lot of other major concessions on the national security letter, which I have already described and will come back to--there were more concessions we got there--it seemed to me that provision was acceptable. The question which I have for the Senator from Wisconsin is whether he has had an opportunity to get that briefing? Last Thursday, I asked my Chief Counsel, who has done such an extraordinary job, Michael O'Neill--who was here a moment or two ago; he's probably too busy to stay and listen to his speeches--to make a briefing available to the Senator or his staff. My question to the Senator from Wisconsin is, No. 1, if he has had an opportunity to get that briefing; No. 2, if so, what he thought of it with respect to the weightiness of what the Department of Justice had to say; and, No. 3, if this modest addition is so significant as to sink--or in conjunction with other similarly unweighty matters--sink the bill?

Mr. SPECTER. Mr. President, with all due respect, the Senator from Wisconsin has not answered my question. When he takes up the SAFE Act, which he cosponsored, so did this Senator. I was not satisfied with the provisions of the PATRIOT Act in effect at the present time, and I was a cosponsor of the same bill as the Senator from Wisconsin, Senator Durbin, and others, in order to protect civil liberties, which I sought to do in the Senate bill and I sought to do, and I think successfully, in the conference report. When the Senator from Wisconsin talks about Section 215, I am coming to that and I wish to engage him in a discussion on that specifically, but let me put it aside for a minute so as not to confuse that issue. With respect to sneak and peak, the delayed notice, I am coming to that as well because there are major, vast improvements in the conference report over existing law. With respect to the roving wiretaps, I am coming to that, too. But focusing for just a minute one at a time so there can be some understanding--this is a very complicated bill. I spoke on it at some length yesterday afternoon in order to acquaint my colleagues with it. I have made quite a number of calls to my colleagues, as far as I can go, to acquaint people with what is in this bill so we can understand it and vote on it with an understanding. Coming back to the conclusive presumption in the national security letter, the question I posed to the Senator from Wisconsin was whether--well, maybe three questions. Does not he agree that the conference report is even more protective of civil liberties than the Senate bill? The second question: Did he know about it? And if on this provision alone, putting aside the others he referred to, 215, sneak and peak, and wiretap, and we want to come to sunset, too, which is a gigantic improvement--it was not mentioned by the Senator from Wisconsin. I think when we get to that he will concede that was a big improvement and maybe he overlooked it in commenting or at least any comment that I heard him make. But coming back to the national security letter, what about my three questions, if I may pose them through the Chair to the Senator from Wisconsin?

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to describe the conference report on the PATRIOT Act, which was agreed to by conferees in the House of Representatives and the Senate last Thursday. This is the first time the Senate has been in session since that time, and the first opportunity for me to make a floor statement outlining the provisions of the conference report. I begin by thanking the distinguished chairman of the House Judiciary Committee, Congressman James Sensenbrenner, for his cooperation and cordiality in working through many very difficult issues to come to agreement between the House and Senate conferees. There has been general agreement that reauthorization of the PATRIOT Act is necessary as an important tool in the fight against terrorism. One item which the PATRIOT Act accomplished, which was enacted shortly after 3,000 Americans were killed and many wounded on 9/11, was elimination of the so-called wall, so that evidence gathered under the Foreign Intelligence Surveillance Act could be used in a criminal prosecution. Prior to the enactment of that provision, if there was evidence obtained under the Foreign Intelligence Surveillance Act, which has a slightly lesser standard than probable cause used for a criminal search warrant, it could not be used for a criminal case. There is no disagreement, to my knowledge, with the proposition that this provision is very important and ought to be retained. Similarly, other provisions of the PATRIOT Act have been conceded to be important: the provisions on obtaining records, the provisions on wiretaps--although subject to some limitations, and I voted against that provision when the bill was up shortly after the 9/11 attacks in 2001--and provisions on delayed notice warrants. And there are many provisions which there has been general agreement ought to be retained. There have been questions raised, and appropriately so, about the sweep of the PATRIOT Act and whether it could accomplish its designed purposes while providing more protection for civil rights and civil liberties. A good bit of the public debate--most of the public debate-- has been focused on those provisions. The conference report makes vast improvements on existing law on items such as obtaining business records, the so-called library record provision; on the delayed notice provisions; and on roving wiretaps. There are limitations now imposed on national security letters, which have been in effect for decades. They were not created by the PATRIOT Act, but the reauthorization of the PATRIOT Act has provided a forum for reconsideration of the way national security letters are used and to provide safeguards for civil liberties. The principal concern expressed publicly about the PATRIOT Act is the ability of law enforcement to obtain business records--it has been commonly referred to as the ``library records provision.'' There is great concern about obtaining somebody's library records by an agent unilaterally, who makes the certification that the records are sought for an investigation, and the agent on his or her own goes and obtains the records. The conference report is a vast improvement on existing law because the conference report imposes judicial review, not quite up to the standard of probable cause for a search and seizure warrant or probable cause for an arrest warrant but cause shown. The statute provides that the court may issue an order for records only on ``a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation to protect against international terrorism.'' Having judicial intervention between the assertions of the law enforcement officer and the invasion of privacy to get these records is the common law standard; that is, the American way of protecting civil liberties. So the impartial magistrate is interposed between the police and law enforcement official and the citizen. The Senate bill provided that relevance would be established only on a showing one of three things: No. 1, that the records pertain to ``a foreign power or an agent of a foreign power; two, the activities of a suspected agent of a foreign power who is the subject of an authorized investigation; or three, an individual in contact with or known to a suspected agent of a foreign power.'' The conference report makes an important change to the standard from the Senate bill. This change was made after a closed-door briefing with the Department of Justice was able to show strong reasons to allow the judge to authorize obtaining records where one of those three conditions had not been met, where there was a terrorism investigation underway, and those records were crucial to moving ahead with that terrorism investigation. I believe, while it would be preferable to have the Senate version, that this provision is reasonable and realistic and is certainly not a substantial basis, not really any basis at all, for rejecting the conference report. The next most highly publicized concern has been on the so-called national security letter. I repeat, the national security letter was not created by the PATRIOT Act passed shortly after 9/11 but has been an investigative tool for decades. Under current law, there is no explicit right on the part of someone who has been served with a national security letter to do anything about it except to comply. The conclusion has been reached that the recipient may not make a disclosure of that national security letter. The conference report is a vast improvement. I have used the word ``vast'' repeatedly because it makes a very extensive improvement by enabling the recipient to go to a lawyer. It explicitly says you can go to your lawyer and you can challenge the national security letter and you can go to court. You can have the national security letter quashed if it is unreasonable, oppressive, or otherwise contrary to law. When you go to court, you can get permission to tell the target of the national security letter about the national security letter, if the judge finds that doing so would not harm national security, interfere with an investigation or diplomatic relations, or risk death or bodily injury to another person. The judicial review is somewhat limited in that there is a presumption that the certification by high-ranking officials of the Department of Justice or the FBI or the requesting agency will be conclusive on whether the disclosure will be harmful to national security or diplomatic relations. What was not understood, really misunderstood, during the course of the deliberation in the conference, was that the Senate bill, which was widely heralded as being a remarkably good bill, agreed to by all 18 members of the Judiciary Committee--and it is very unusual to have the Judiciary Committee agree unanimously on anything, let alone on a matter of civil rights, but that was done. Then, when the bill was forwarded to the floor, it went on our so-called unanimous consent calendar, which means it was passed by unanimous consent without any floor debate. It is highly unusual and perhaps unprecedented on a bill of this magnitude to be on the unanimous consent calendar because people all thought it was fine. That requires the absence of an objection. Any one Senator can prevent it going on to the unanimous consent calendar. That means 100 Senators have to in effect have acquiesced. The provision in the Senate bill was that ``in reviewing a nondisclosure requirement, a certification by the government that the disclosure may endanger the national security of the United States or interfere with diplomatic relations will be treated as conclusive unless the court finds that the certification was made in bad faith.'' As I said before, it was misunderstood and not noted by the conferees as to that provision in the Senate bill which drew only praise, not an objection. But there was an objection raised to a provision in the conference report which is more protective of civil liberties than that which was in the Senate report. The conference report specifies ``if at the time of the petition, the Attorney General, the Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality''--here comes the critical language--``certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.'' So the conference report is more protective of civil rights than was the Senate bill, which was so widely praised, because in the Senate bill you had to have a certification by the Government, which means any agent of the Government. But in the conference report, it was ratcheted up to require certification by these high-ranking officials, such as the Attorney General or the head of the FBI or the department heads or Assistant Attorneys General, all of whom are subject to Senate confirmation. I think, had the misconception not prevailed about the presence of that provision in the Senate bill, our conference would have been a lot shorter, and I think it fair to say, not with absolute certainty but fair to say, it would have had more signatures on the conference report. But in any event, the conference report gives much more by way of protection of civil liberties than is present under existing law. The third issue which was taken up to enhance the protection of civil liberties is the delayed notice provision, or the so-called ``sneak and peek provision.'' This involves a situation where there would be a warrant to search someone's house or apartment surreptitiously; that is, without giving notice to the individual. Under existing law, under the PATRIOT Act, the Government must notify the individual within a reasonable period of time. Reasonable has no definitive limit, is vague and indefinite; it is open to very wide interpretation as to what constitutes reasonable. The conference report imposes a maximum time limit of 30 days, which can be extended on cause shown if certain specific criteria were met. The Senate bill had a 7-day notice requirement. The House bill had a 180-day requirement, and the compromise was 30 days. So most of the provisions of the Senate bill or most of the substance of the Senate bill was agreed to. Now you have a set time limit, unless cause is shown to extend it; again, what I would characterize fairly as a vast improvement. Then there are provisions under the roving wiretap laws. I have always been concerned about the intrusion of privacy under wiretaps. In my days as district attorney, I was the sole district attorney among the 67 Pennsylvania counties to oppose legislation on wiretaps. When the PATRIOT bill came to the Senate shortly after September 11, I was one of the few Senators who voted against the wiretap provision. Law enforcement has made a case in support of a roving wiretap and the PATRIOT Act conference report protects civil liberties additionally by requiring that there be an identification of the individual, a description, and that there be a showing that the individual will seek to try to evade detection of the wiretap so that on that provision, as well, there is an enhancement of civil liberties. Perhaps the most contentious issue that was taken up by the conference was the issue of the sunset. The House of Representatives asked for a sunset of 10 years in their bill. The Senate bill has a sunset of 4 years. The House proposed, in a very forceful way, a compromise at 7 years, splitting the difference. The sunset provision is very important because all of the provisions of the PATRIOT Act expire at the end of the sunset unless there is a renewal. This puts law enforcement on notice that there will be oversight by the Judiciary Committees of both Houses, and the Senate Judiciary Committee has been very diligent on oversight and is committed to extensive oversight on this bill however it comes out. There were very long, detailed, extensive negotiations. I thank the White House. I thank the President, who was personally acquainted with this issue. I had the opportunity to travel with him to Philadelphia earlier today where he made a speech about Iraq. He said to me, it was my expectation if we fulfilled your request for assistance on getting a 4-year sunset, there would be a little more receptivity for the bill. I am paraphrasing what was involved. This issue went to the highest level of the Federal Government. We had tremendous assistance from the White House on the sunset provision. Not only was the President conversant with it, as I have stated, but the Vice President was involved in the negotiations, the Chief of Staff, Andrew Card, whom I talked to on a number of occasions, and others in the White House. This 4-year sunset is a major, major, major improvement for civil liberties interests in that these provisions will be in existence not for 10 years, 7 years, 6, 5, but only for 4 years. In essence, we have a bill which is not perfect. I don't know that we deal in perfection in the legislative process. The whole art of politics and legislation is the art of accommodation, conciliation, and compromise, which is a worthwhile concept. That is the way we work in a democracy. No one gets their way entirely. If I had my preference, we would have taken the Senate bill lock, stock, and barrel, and that would have been it. But we have a bicameral legislature and considerations and issues raised by the House of Representatives, I think again, are fairly raised and fairly stated. I explicitly compliment Chairman Sensenbrenner for his cooperation and his good work on this bill. That is, believe it or not, a somewhat abbreviated version of this legislation, this complex legislation. We had a letter from six of our colleagues--Senator Craig, Senator Sununu, Senator Murkowski, Senator Durbin, Senator Feingold, Senator Salazar--and I ask unanimous consent that a copy of their letter to me and a copy of my letter to them be printed in the Record.

Mr. SPECTER. I ask unanimous consent that a copy of a ``Dear Colleague'' letter circulated generally to all the Senators dated December 9, 2005, be printed in the Record.

Mr. SPECTER. The schedule which is currently anticipated is that the House of Representatives will take up this bill and vote on Wednesday and the Senate will take up a motion to proceed to vote on Wednesday. There is talk of a filibuster. Whatever Senators choose to exercise whatever rights they have, we will see, but I thought it would be useful in talking to a number of colleagues today, the request was made to see something in the Congressional Record which goes into some detail in hitting the hot spots, but I add to my colleagues who may be listening or staffers of my colleagues who may be listening or who may read this in the Congressional Record which will be in print today, my staff and I are ready, willing, and able to elaborate further on the substance of the conference report. This report has been the subject of negotiations between the House and Senate for weeks and has consumed all of last week. I thank the staffs on both the House and the Senate for extraordinarily diligent work, working around the clock. This was a full-time venture for me, personally, and other Members for the past many days. We have moved ahead because this bill expires on December 31. For those who want to reargue it and relitigate it and reconsider it, it will not get any better. If we go back to conference, were that course to be followed, there are a lot of limitations in the wings that could be added. With only that one provision about the conclusive presumption having been an issue, and it having been in the Senate bill which, again I repeat, we were misinformed about and the vast improvements on the issues we have mentioned, it is a bill that ought to be accepted so we can move on. We have a very heavy schedule in the Judiciary Committee. When we return in early January before the Senate goes into session, we have the confirmation hearings of Judge Alito for the Supreme Court scheduled on the 9th of January. We then have scheduled as the first item of legislative business asbestos reform when we go back into session on the 23rd. The first item of legislative business will be available on January 24. Then we have the issue of immigration reform, which is very high on the agenda. We have backing up the matter of reporters' privilege or reporters' shield and a long list of items of other confirmation proceedings to take up the time of the Judiciary Committee. I invite my colleagues' careful consideration, and I repeat the availability of staff and myself personally to answer any questions or make any elaborations. I yield the floor and suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Parliamentary inquiry: Do I have 5 minutes on the Durbin motion?

Mr. SPECTER. Mr. President, the appropriations bill on Labor, Health, Human Services and Education, in my judgment, as I have said repeatedly, is vastly underfunded. The Senate passed a bill within the context of our allocation. Working with my colleague, Senator Harkin, and our very energetic and devoted staff, we did the very best we could with the limited funding. But there simply wasn't enough money to do the job. Health is our major capital asset. Without health, we can't function. Education is our major capital asset for the future, to give opportunity for labor and worker training. We made the allocations as best we could, but the bill was underfunded. I made an effort, joined by Senator Harkin and by the subcommittee, to put LIHEAP in an emergency classification for $2.83 billion. I said in the conference that it would enable us to improve the bill--not where it ought to be but improve it substantially. I conferred with Chairman Regula and considered the projects--or so- called earmarks--which are $1 billion, where, as a matter of longstanding tradition, the Members in both the House and Senate, Democrats and Republicans, are enabled with an allocation to make designations within their districts or States because we know more about our States and our districts than, in many instances, do the officials who run the bureaucracy of the U.S. Government. I said if we could not get the $2.83 billion emergency declaration for LIHEAP that it was going to be my position that we ought not to include the earmarks for the projects. When we could not get that emergency declaration, we struck the earmarked projects. That was a very tough decision. We are paid to make tough decisions around here. I can't think of one in the time I have been here more disappointing to a lot of people in America who are relying on these projects. Although, the $1 billion spread around the country, here and there, is not unsubstantial--a lot of people were disappointed. Many Members were disappointed that the traditional allocations were not made. It is my hope that we can put the $2.83 billion into LIHEAP. We are facing a drastic situation with fuel costs, as we all know, and as significantly occasioned by Hurricane Katrina, which is an emergency. If there ever was a clear-cut emergency, it is what the consequences of Hurricane Katrina are. The fuel costs are a direct result of that. This is a classical, quintessential emergency. I think we have the 51 votes to pass it here in the Senate. The difficulty is going to be in getting our House colleagues to agree to it. But I hope we work our way out of this morass and impasse with approval of this resolution and ultimate approval by both bodies. I yield the floor.