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Public Statements

Statements on Introduced Bills and Joint Resolutions

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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - November 14, 2006)

BREAK IN TRANSCRIPT

By Mr. SPECTER:

S. 4051. A bill to provide sufficient resources to permit electronic surveillance of United States persons for foreign intelligence purposes to be conducted pursuant to individualized court-based orders for calls originating in the United States, to provide additional resources to enhance oversight and streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, to ensure review of the Terrorist Surveillance Program by the United States Supreme Court, and for other purposes; read the first time.

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which I have captioned as the ``Foreign Intelligence Surveillance Oversight and Resource Enactment Act of 2006.'' This is a modification of legislation which had been introduced by the Senator from California, Mrs. Feinstein, and myself and passed out of the Judiciary Committee.

If it is in accordance with the rules, I ask that this bill be held at the desk.

The purpose of this legislation is to provide for oversight on the administration's electronic surveillance program which has been in effect for many years and which was publicly disclosed in mid-December last year. We now are at a state where the provisions of earlier legislation which I introduced, which would call for judicial review by the Foreign Intelligence Surveillance Court, are no longer necessary. Events have overtaken the situation, with litigation having been started in a number of district courts, and a decision has come out of the U.S. district court in Detroit. The issue is now on appeal to the Sixth Circuit, and there is no longer any need to provide for a referral to the Foreign Intelligence Surveillance Court because the matter is now in litigation and will be carried through on the appellate process.

The legislation which I am introducing tracks the Feinstein-Specter bill in that it provides additional resources to the administration. It expands the time when the administration can get approval for an electronic surveillance that has already been accomplished. With these additional resources, I am advised that the NSA will be in a position to have individual warrants for all calls which originate in the United States and go overseas. The bill does not touch the calls which originate overseas and come through checkpoints or transmission in the United States and go back overseas, where both the point of origin and the point of conclusion is overseas. And, we do not deal with calls which originate overseas and come into the United States.

The President has contended that notwithstanding the provisions of the Foreign Intelligence Surveillance Act that it is the exclusive way to get a wiretap warrant, he has article II power. And, there will be a test of that in the court system, which is now underway. That test will involve what the courts have said is the balancing test: the invasion of privacy versus the value for law enforcement and for national security. So that as to calls to repeat--when they originate overseas and come into the United States, that will be the issue which will remain to be tested.

This proposal does not deal with the existing language that the Foreign Intelligence Surveillance Act is the exclusive remedy, nor does it deal with any assertion about the article II power of the President.

It has been my view, expressed on the floor on a number of occasions, that the article II power is what it is, congressional power is what it is, and if there is genuine article II power, then it supersedes an act of Congress because the Constitution trumps an act of Congress. This legislation does not deal with those issues which had created what I thought was a needless controversy.

The bill further provides that there will be review by the Supreme Court of the United States. I think there doubtless would be review by the Supreme Court as a matter of course, but in order not to take any chance on that, Congress has the authority to mandate review with the Supreme Court, and this bill does that.

In addition, the legislation provides for expedited review so that there will be a judicial determination as to the constitutionality of what the President has done with respect to the calls originating overseas and ending in the United States. I think this bill is a significant advance in protecting civil liberties by having individualized warrants on calls which originate in the United States and which go overseas.

We have had this electronic surveillance in existence for a long time. The effort which I have made has been to have it subjected to judicial review, and it is my hope that this stripped-down legislation, which does enhance civil liberties by providing for individual warrants on calls originating in the United States and expedited review in the Federal courts and expedited review by the Supreme Court, would be acceptable.

We have time yet in this session this year to legislate on this important subject.

Mrs. FEINSTEIN. Mr. President, will the Senator yield for a question?

Mr. SPECTER. I yield.

Mrs. FEINSTEIN. Through the Chair.

The PRESIDING OFFICER. The Senator from California is recognized.

Mrs. FEINSTEIN. Mr. President, I was trying, as the Senator from Pennsylvania spoke, to figure out exactly what bill it is he is speaking of. I gather this is his bill, not our bill, on which he is adding some of our bill's provisions, but he leaves out the critical part, which is reinforcing the exclusive authority of FISA; is that correct?

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SPECTER. Mr. President, the exclusive authority of FISA remains. This bill does not touch that. FISA is now the law of the land, and FISA says that it is the exclusive remedy for wiretapping. This legislation which I am introducing does not alter that, so it remains as provided in FISA that the Foreign Intelligence Surveillance Act is the exclusive remedy for wiretapping.

Mrs. FEINSTEIN. If I may, a second question: Will this bill allow the President to use his plenary authority to wiretap outside of FISA, first, and secondly, will it allow for program authority for wiretaps?

Mr. SPECTER. It does not deal with program authority at all. That was in the original legislation that I introduced as a way of getting the Foreign Intelligence Surveillance Court to review the program. But this does not deal with that, and it does not give the President any enhanced authority at all to conduct warrantless wiretaps. The bill doesn't deal with that.

Whatever authority the President has under article II, he has. What this bill does is submit for expedited review by the Supreme Court a determination as to whether the President has article II power to have a warrantless wiretap with a call that originates overseas and ends in the United States.

Mrs. FEINSTEIN. Again, through the Chair, if the Senator will put up with this for a moment more, is that to handle the switching issue, or would this apply to all calls coming in from outside the United States are exempt?

Mr. SPECTER. To repeat, the bill I am introducing does not touch that point. The bill I am introducing leaves the status quo on that point, and that is where some contend that it is illegal to have a wiretap where the call originates outside the United States and comes inside. The contention is made that it's governed by the Foreign Intelligence Surveillance Act and is, therefore, illegal. The President has a different argument. He is asserting article II power as Commander in Chief, and he says that his article II power, constitutional power, supersedes or trumps a statute. Whether he is right or wrong depends upon a judicial interpretation. Only the court can weigh, as the existing law is in this area, whether the importance of national security outweighs the invasion of privacy, and that determination is reserved for the Federal courts.

We are now having that determination in the Detroit case, ACLU v. NSA, where the district judge says it is unconstitutional and the Sixth Circuit now has taken the case. They have issued a stay, in effect, but they will take up the case on the merits.

Once the litigation is this far advanced, we are not now in the situation we were in last December when the Judiciary Committee, as the Senator from California knows, had four hearings and I had a bill to submit to the Foreign Intelligence Surveillance Court. That is bypassed now. Events have overtaken it.

This will provide for judicial review. It is my thought--and the Senator from California and I have talked about this again and again and have worked on her bill which I supported, voted out of committee 10 to 8 with 2 Republicans and 8 Democrats--this will expedite a determination as to whether all those calls originating overseas and coming in are or are not constitutionally tapped. And, it will help out with what the Senator from California has been the leader on--and that is to have individualized warrants for calls originating in the United States. That is a big advance on civil liberties if those calls are not tapped without a warrant.

Mrs. FEINSTEIN. I thank the Senator. He has been a very distinguished chairman of the committee. This is an issue in which, as a member of the Intelligence Committee and Judiciary Committee, I have had an intense interest. The Senator from Pennsylvania recognizes that. I appreciate that.

I am unsure whether this bill is for the purpose of judicial review of the President's article II authority--I think I understand what the Senator is doing. He is essentially exempting all those calls which come into the United States, not calls from point A to point B in the United States. I think that bears further discussion, but I trust no action will be taken on this bill in this session but that the Senator from Pennsylvania is submitting it as a marker for next year.

Mr. SPECTER. Mr. President, it would be my hope that we could act on it this session. I say that, subject to review by the Senator from California and by other Members and by the House of Representatives. The Senator from California and I and others have thought about this issue long and hard. This bill is a real effort to try to accommodate all of the concerns the Senator from California has raised. That is to maintain the status of the Foreign Intelligence Surveillance Act as the exclusive way to wiretap. That stands.

There is no statement about the authority of the President under article II, which had been objected to before. As I say, whatever the constitutional authority is, it is, regardless of what the bill says, but this bill says nothing about that. It says nothing.

The Senator from California and I have wanted to have individualized warrants wherever we could get them, and now the Senator from California took the lead on this. She has had access to this program, where I have not, because she is on the Intelligence Committee. It is anomalous that the chairman of the Judiciary Committee would not know the program, but I respect the division which gives that intelligence to the oversight committee. But she and I both wanted to have individualized warrants everywhere if we could get them. And, now we know we can get them on calls originating in the United States if we add the resources that were in the legislation crafted initially by the Senator from California, which I joined, which passed out of committee and onto the floor. And it does not deal with the ones overseas into the United States. Whatever authority the President has on that, he is going to have to assert in Federal court and satisfy ultimately the Supreme Court that he has that article II power. My view is the sooner we have this determination, the better off we are.

Mr. SPECTER. Mr. President, I am glad to respond, and I thank the Senator from California for the question. It would achieve individualized review of warrants on calls originating in the United States, and there are a lot of them. How many there are, I don't know, but the NSA officials have told us that if we give them the additional resources, which was suggested originally by the Senator from California and which I concur in on the Feinstein-Specter bill, that they could have individualized warrants. And, I think that would be a big step forward on civil rights.

Mrs. FEINSTEIN. Except what you are doing is effectively exempting, then, a call from outside into the United States because of the change in technology.

Mr. SPECTER. Mr. President, my bill does not exempt them. My bill just doesn't deal with them. Some say that FISA controls them and, therefore, they are illegal. The President says: No, he has article II power. And the only way that controversy can be resolved is in a Federal court, which will weigh them. And the Federal court in Detroit weighed them and said it was unconstitutional. And the Sixth Circuit has said they will review it. In the meantime, the program stands. But as the program stands, all of these warrantless wiretaps are going on and on and on. And we go one step further. We make sure the Supreme Court will take the case. We also have power in the Congress to expedite the review, set a timetable to get it done faster.

Mrs. FEINSTEIN. I will be very interested to look at the bill, and I thank you very much for this dialog. And this completes my questions. Thank you.

Mr. SPECTER. I thank the Senator from California for the colloquy which has further explained the bill.

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