FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED -- (Senate - June 23, 2008)
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Mr. SPECTER. Mr. President, I have sought recognition to address the issues on legislation which is coming from the House of Representatives amending the Foreign Intelligence Surveillance Act.
The issues on which the Senate will vote on the House bill involve very fundamental questions of constitutional rights versus the war on terrorism. We have legislation which has come from the House of Representatives which would grant retroactive immunity to the telephone companies on a showing that the companies receive written requests from the Government saying the program was legal.
At the outset, I recognize the telephone companies as good citizens. But the test of whether what has been done is legal is not determined by the assertion by the Government to the telephone companies that the program is legal. That determination can only be made by the courts on evaluation of congressional authority under article I, which has been exercised in the Foreign Intelligence Surveillance Act of 1978, since amended, contrasted with the President's article II powers as Commander in Chief. That test has not been waived.
I submit the historians will look back upon the period of time from 9/11 to the present and beyond as the greatest expansion of executive authority in the history of the country. I believe additional law enforcement tools were necessary. In my capacity as the chairman of the Judiciary Committee, I led the fight for the PATRIOT Act re-authorization on this floor to give law enforcement broader power.
But, at the same time, I have expressed my deep concern that there be a determination by the courts as to whether the warrantless wiretapping is valid under the Constitution. We have seen great stress laid upon the provision in the House measure that the exclusive means for wiretapping will be provided by the statute. But that does not stop the President from asserting his authority under article II of the Constitution.
The Foreign Intelligence Surveillance Act of 1978 has a similar provision of exclusivity, but that did not stop the President from initiating the Terrorist Surveillance Program which was kept secret for years from the Congress. The President has a sound constitutional argument that you cannot amend the Constitution by statute; you cannot take away the President's constitutional authority by a statute, but it is up to the courts to strike the balance and to make that determination.
Regrettably, Congress and the efforts which we have made have, I submit, been totally insufficient. We have had the so-called signing statements as an expansion of executive authority, and Congress has been unable to assert its authority under the Constitution on the legislation we send to the President. The Constitution is plain. Each House passes legislation. There is a conference report, and it is sent to the President and presented. Then the President has the option of either signing or vetoing.
But a practice has arisen in the past, very extensively used by this administration, to put in signing statements which are at material variance--that really directly contradict what is in the legislation. There may be some justification for a signing statement on some minor matters on an administrative level, but in my formal statement I go into a couple of examples on a controversy on enhanced interrogation, or so-called torture, which passed the Senate 90 to 9.
In a celebrated meeting between Senator McCain and President Bush, they reached a compromise. Then when the legislation went to the President, the President issued a signing statement saying that he had the authority to disregard it under his powers as Commander in Chief, article II authority.
In a similar vein on the PATRIOT Act re-authorization, we put in restrictions on what the law enforcement officials could do, negotiated with the administration, signed into law by the President, and again a statement was made that if the President chose to exercise his constitutional authority, article II power, he felt free to do so.
I introduced legislation to give the Congress standing to go to court to challenge these signing statements. The legislation has not gotten very far because of the impossibility of overriding a veto and because of the concern as to whether the constitutional standard of the case and controversy would be met. So here we have the unfettered practice of these signing statements as an example of executive authority.
Second, the Supreme Court review of the Terrorist Surveillance Program and habeas corpus has been inadequate. In the Detroit case, the Federal court finding the Terrorist Surveillance Program unconstitutional was appealed to the Sixth Circuit. After lengthy delays, the Sixth Circuit reversed the Detroit Federal court on the grounds of lack of standing. Then, again, after months of delay, the case went to the Supreme Court of the United States which, again, denied certiorari.
The issue of standing has sufficient flexibility, as demonstrated by the dissent in the Sixth Circuit, that the Supreme Court could have taken up the issue. The question on the Terrorist Surveillance Program presents the sharpest conflict of our era on the clash between the President's authority under article II as Commander in Chief and the authority of Congress to enact statutes, as we did under the Foreign Intelligence Surveillance Act of 1978.
Similarly, on habeas corpus, notwithstanding the Rasul decision, the Court of Appeals for the District of Columbia in Boumediene essentially disregarded the holding of the Supreme Court in Rasul when the Circuit Court for the District of Columbia said the decision by the Supreme Court turned on a statutory interpretation.
Habeas corpus is provided for in two ways under our law: No. 1, it is descended from the Great Writ, the Magna Carta, of 1215, and it is embodied in our constitutional law as made plain by Justice Stevens in Rasul. And there is also a statutory provision for habeas corpus. In the Military Commissions Act, the Congress modified the statutory provision, and the Court of Appeals for the District of Columbia saw fit to say that once the statute was changed, habeas corpus didn't apply--really flying in the face of what the holding was in Rasul.
Finally, a protracted period of time later, in Boumediene, the Supreme Court reinstated habeas corpus as it was bound to do based upon the clear holding of Rasul and the long history of the issue.
Congress has similarly been ineffective in curtailing executive authority in the National Security Act of 1947, which requires the President to notify the intelligence committees of both the House and Senate, and for protracted periods of time the executive branch ignored that requirement. Only when the confirmation of General Hayden as Director of CIA came up was there some compliance with that requirement.
The Judiciary Committee, during my tenure as chair, sought to bring in the telephone companies, sought to issue subpoenas to find out what the telephone companies were undertaking. On that situation, as I have said on the floor of the Senate, Vice President Cheney personally went behind my back to talk to Republican members of the Judiciary Committee without talking to me at any stage. That effort was made because the telephone companies, unlike the executive branch, unlike the President--the telephone companies do not have executive privilege.
Similarly, the Senate defeated my amendment on the Foreign Intelligence Surveillance Act which would have substituted the Government for the telephone companies as the parties defendant. There was a way that the telephone companies could have been recognized for their good citizenship and held harmless by having the Government step into their shoes. But that amendment was defeated.
I submit the case for this determination has a very important dimension beyond the customary doctrine of separation of powers because we are asked to give retroactive immunity to something while we don't even know on the record the full import of what is involved. The warrantless wiretapping, the data mining by the telephone companies is known only to some Members of Congress. It is not known to the public. I intend to offer an amendment which will require that the district court--the House bill now lodges jurisdiction in the district court to make the determination on the legality of FISA--my amendment will call for the district court to make the determination as to whether what has been done by the telephone companies is constitutional.
The ultimate vote on this matter is a tough one. There are quite a number of provisions in the House bill which are protective of civil liberties. I have detailed them in my formal written statement. So when I come to a balance as to voting for the bill or not, my inclination is to vote in favor of the bill because of the importance of the ongoing activities of the telephone companies, notwithstanding my deep concern for civil rights. But there is a much better alternative, and that much better alternative would have been to have substituted the Government for the telephone companies as the party defendant or, now, to submit the question of constitutionality to the district court.
My vote was misunderstood on the Military Commissions Act. When I had led the fight to retain habeas corpus in that bill, it was defeated 51 to 48--but we later voted for the bill because of its recognition of the applicability of the Geneva Conventions and other important parts of the bill. I said at the time that because of the severability clause, the Supreme Court of the United States would reinstate habeas corpus--which, of course, in the past couple of weeks, we know the Supreme Court has done.
We are dealing here, essentially, with very subtle and very nuanced provisions. There are very tough judgments to be made in the legislative context. The war on terrorism is still on the front burner. We do not know what is going to come next.
So that any time there is a balance as to what we ought to do, because of the value which I think is present from this data-mining and the work done by the telephone companies, I think it ought to be maintained. But where we have an option of doing it in a constitutional way, either by sunshine or by submitting it to the court, that is the preferable course of conduct.
I ask unanimous consent that the full text of a detailed statement summarizing my position and a draft amendment be printed in the Record so my colleagues will have an opportunity to review both my written statement and my oral presentation of the proposal for an amendment which I intend to offer when the bill comes up.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Floor Statement on FISA
The Senate is coming to a critical vote on our duty to exercise our most fundamental constitutional obligation on separation of powers: to strike the appropriate balance between the war against terrorism and protecting civil rights. We are asked by the House of Representatives to approve their bill on amending the Foreign Intelligence Surveillance Act, a bill which gives retroactive immunity to the telephone companies that facilitated warrantless surveillance, but does not require a judicial determination that the government's program was constitutional.
It is totally insufficient to confer immunity merely because the companies received written requests from the government saying the program was legal. While it is true that the standard of review has been changed from ``abuse of discretion'' to ``substantial evidence'' in this bill, the real question is ``substantial evidence'' of what? Only that the President authorized the program and the government sent written requests to the companies assuring them it was legal. The court is not required to find that the requests were lawful, or that the surveillance itself was constitutional.
The provision that the legislation will be the exclusive means for the government to wiretap is meaningless because that specific limitation is in the 1978 Act and it didn't stop the government from conducting the warrantless Terrorist Surveillance Program with the telephone companies' assistance. The bill leaves the President with his position that his Article II powers as commander in chief cannot be limited by statute. That is a sound constitutional argument, but only the courts can ultimately decide that issue, and this bill dodges the issue by limiting judicial review.
The constitutional doctrine of separation of powers has been mangled since 9/11. I believe that, decades from now, historians will look at the time between 9/11 and the present as the greatest expansion of unchecked executive power in the history of the country. I believe that much, if not most, of that power was necessary to fight terrorism and I led the fight as Chairman of the Judiciary Committee to expand law enforcement powers under the PATRIOT Act. I also offered numerous pieces of legislation designed to bring the Terrorist Surveillance Program under federal court review and to ensure that vital intelligence gathering could continue with appropriate oversight. In the 109th and 110th Congresses, I introduced several versions of the National Security Surveillance Act (first introduced on March 16, 2006), the Foreign Intelligence Surveillance Improvement and Enhancement Act (with Senator Feinstein, first introduced on May 24, 2006), and the Foreign Intelligence Surveillance Oversight and Resource Enhancement Act (first introduced on November 14, 2006).
There has to be a check and balance. The Congress has been totally ineffective, punting to the courts and then seeking to limit the courts' authority as the House of Representatives is now doing. The problem is compounded by the fact that the Supreme Court had ducked and delayed deciding where the line is between Congressional authority under Article I and presidential authority under Article II.
Let me document the ineffectiveness of Congress:
(1) Signing Statements: The constitution is explicit that Congress sends legislation to the president who has only two options: sign or veto. Instead on key provisions limiting executive authority, including Senator McCain's amendment--adopted 90 to 9 in the Senate--to ban ``cruel, inhuman or degrading'' treatment of any prisoner held by the United States, and the new PATRIOT Act sections requiring audits and Congressional reporting to ensure the FBI does not abuse its terrorism-related powers to secretly demand the production of records, the President has signed the Congressional presentment and then issued a statement asserting his Article II power to ignore those limitations.
My legislation to give Congress standing to challenge the constitutionality of those signing statements has gone nowhere because of three factors: (1) The disinclination of Congress to challenge the president in the context of getting blamed if there were another terrorist attack; (2) the virtual impossibility of overriding a veto; and (3) the doubts by a few that such legislation would satisfy the constitutional requirements of the case and controversy.
(2) Requiring Supreme Court Review of the TSP and Habeas: The efforts to get a Supreme Court ruling on the constitutionality of the Terrorist Surveillance Program were ducked by the Supreme Court. The ruling of the U.S. District Court in Detroit holding the Terrorist Surveillance Program unconstitutional was reversed by the 6th Circuit on a 2-1 vote on lack of standing and the Supreme Court denied certiorari. The doctrine of standing has enough flexibility, as demonstrated by the dissent in the 6th Circuit, to have enabled the Supreme Court to take up the most fundamental clash between Congress and the president in our era, if the Supreme Court had the courage to do so.
The Supreme Court acted almost as badly on the habeas corpus issue in initially denying certiorari on the D.C. Circuit's decision in Boumediene, which ignored the plain language in Rasul confirming that habeas corpus was a constitutional right, not just one based on legislation which Congress had changed. Only when confronted with the overwhelming evidence on the inadequacy of the Combat Status Review Tribunals did the Supreme Court finally grant a petition for reconsideration on certiorari and ordered the District Courts to grant habeas corpus review after a very long delay.
(3) Violation of the National Security Act: The Congress was remedy-less to do anything when the President ignored the National Security Act of 1947 which requires notification of programs like the Terrorist Surveillance Program to the House and Senate Intelligence Committees. It was only when the administration needed the confirmation of General Michael Hayden to be Director of the CIA that any effort at compliance was made.
(4) Subpoenas for Telecoms: My efforts as Chairman of the Judiciary Committee in June 2006 to get information about the telephone companies' warrantless wiretapping were obstructed by an unusual breach of protocol by Vice President Dick Cheney personally when he went behind my back to urge other Judiciary Committee members to oppose my efforts to subpoena the telephone companies which, unlike the administration, could not plead executive privilege.
(5) Military Commissions Act: Congress has been docile, really inert, in failing to push back on the executive's encroachment on our authority. My amendment to retain habeas corpus in the Military Commissions Act was defeated 48-51. Meanwhile, the Graham-Levin amendment to the National Defense Authorization Act for Fiscal Year 2006 passed by the shocking vote of 84-14 despite the fact that it was drafted overnight, had no hearing and virtually no debate with my having only two minutes to speak in opposition. On its face the amendment stripped the Supreme Court of jurisdiction by vesting exclusive jurisdiction with the District of Columbia Circuit. It would be hard to find an amendment on a more important subject given less scrutiny and passed with less thought and in such haste.
(6) FISA Substitution Amendment: Similarly, the Senate defeated my amendment to the Foreign Intelligence Surveillance Act which would have substituted the government for the telephone companies as the defendants in the pending litigation. That would have protected the telephone companies but left the courts to decide if the program was constitutional.
The Senate now has the opportunity to provide for judicial review by amending the House Foreign Intelligence Surveillance Act bill to authorize the U.S. District Courts to determine the constitutionality of the administration's program before granting immunity to the telephone companies.
The case for that determination has an important extra dimension beyond separation of powers. It involves a repugnant factor; namely, that the government had instigated and maintained for many years a secret practice, the scope of which is unknown to the public and known only to some members of Congress. It smacks of Star Chamber proceedings from old England. Now the administration insists on retroactive immunity and the House has complied. It is time the Senate stood up and earned its reputation as the ``world's greatest deliberative body'' and at least demonstrate some courage, if not a full profile, by insisting on judicial review.
In offering an amendment for judicial review, I am mindful of the importance of what the telephone companies have been doing on the war against terrorism from my classified briefings. It is a difficult decision to vote for retroactive immunity if my amendment fails, but I will do so, just as I voted for it when my substitution amendment failed because I conclude that the threat of terrorism and the other important provisions in the House bill outweigh the invasion of privacy.
I do so with great reluctance because it sets a terrible precedent for the executive to violate the Foreign Intelligence Surveillance Act, the National Security Act of 1947, and the presentment clause of the constitution and then receive a Congressional pardon. It is especially galling since Congress could both protect the telephone companies by substitution and allow the lawsuits to go forward or authorize their continuance by my amendment.
I also intend to vote for the bill regardless of what happens to my amendment because of the other important features of the bill. It requires prior court review of the government's foreign-targeted surveillance procedures, except in exigent circumstances (the 7-day exception). Also, the FISA Court must determine whether--going forward--the foreign targeting and minimization procedures satisfy the Fourth Amendment. The bill also requires prior, individualized court orders based on probable cause for U.S. persons when they are outside the country. And, the bill requires a comprehensive Inspector General review of the Terrorist Surveillance Program.
I know that this nuanced position of fighting retroactive immunity and then voting for the bill will be misunderstood because of the complexity of the issues and the subtleties of my rationale.
I have been similarly misunderstood in my castigation of the provisions eliminating statutory habeas corpus and court-stripping in the Military Commissions Act and then voting for the bill. I did so, and gave my contemporaneous reasons, because the Act contained many important provisions, such as implementing the Geneva Conventions in accordance with the Supreme Court's Hamdan ruling. The Act also brought the military commissions within Congressional authorization and the law--something the current bill seeks to do for vital intelligence gathering. I said at the time that the Supreme Court would strike the exclusion of habeas corpus, leaving the rest of the Act intact under the severability clause, and that did happen in Boumediene.
It is my hope that my colleagues in the Senate and House too would give a little extra consideration to this issue because it is past time for Congress to assert itself and at least leave the courts free to determine constitutional rights and separation of powers.
In section 802(b) of the Foreign Intelligence Surveillance Act of 1978, as added by section 201 of the Act, strike paragraph (1) and insert the following:
``(1) REVIEW OF CERTIFICATIONS.--
``(A) IN GENERAL.--Except as provided in subparagraph (B), a certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.
``(B) COVERED CIVIL ACTIONS.--In a covered civil action relating to assistance alleged to have been provided in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, a certification under subsection (a) shall be given effect unless the court--
``(i) finds that such certification is not supported by substantial evidence provided to the court pursuant to this section; or
``(ii) determines that the assistance provided by the applicable electronic communication service provider was unconstitutional.
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