WORKING TOGETHER -- (Senate - July 07, 2008)
Mr. SPECTER. Mr. President, I was pleased to hear some of the comments by our leaders earlier on a conciliatory note after the fireworks a week ago Thursday before we adjourned. The fireworks over the Medicare bill I think vastly overshadowed the fireworks a week later on the Fourth of July. I am glad to hear them talk about working together.
If there is one point of virtual unanimity in America today, it is the American people are sick and tired of the partisan bickering in Washington, DC. When they talk about coming together on energy and the high prices of gasoline, every Member has to hear it everywhere because that is such a prominent item of great pain and suffering in America today: the high cost of gasoline and the high cost of heating oil when winter comes, especially for the seniors who have the choice of either heating or eating. I believe there are some things that can be done in the short term, difficult as so many of the items are. I have spoken before about the issue and do not intend to speak at length today. But I am encouraged by what Senator Reid and Senator McConnell have had to say.
One item which could be acted upon immediately, which could have some immediate impact, is the effort Senator Kohl and I have made for many years now to take away the antitrust exemption for OPEC oil-producing nations. Right now, they have a sovereign immunity. But there is nothing sovereign about what goes on in fixing the prices of oil in the international market--fixing the prices by having the OPEC countries get into a small room, lower production and increase the cost because the supply is lower and the demand is greater.
While we certainly ought to undertake conservation measures, as we finally did, raising the miles per gallon last year to 35, and with many other items we could make on conservation, we could have a significant and short-term impact upon supply by taking away the antitrust exemption, which we can do under the case law. It is a commercial transaction. It passed the Senate by a big vote. More than 70 Senators voted for it in the past.
It is on the agenda. It has been voted out of the Judiciary Committee. The OPEC countries say they shouldn't be subject to the antitrust laws. Well, they find it very profitable not to be. They say it wouldn't do any good because OPEC is paying now for all of the production it can undertake, but 3 weeks ago, Saudi Arabia made an announcement that they were going to increase production. The speculation behind that announcement was that they were concerned about measures which were being undertaken by the United States and other countries to respond. In the long term, their interests might be best off if they increase production. Well, I think if they were subjected to the antitrust laws, we would put them to the test.
There is no earthly reason they should not be subjected to our antitrust laws. That has not moved forward because of some concerns that there ought to be some companion legislation on drilling. Well, that is something which ought to be considered--not carte blanche and not necessarily in broad, sweeping terms but on a case-by-case basis.
I have a very strong record in my tenure in the Senate on environmental protection, but if you take ANWR, I was convinced 20 years ago when I made a trip there that ANWR could be the subject of very substantial exploration with adequate concern for environmental protection. ANWR has a footprint about as big as Philadelphia International Airport, and there are ways of drilling down with a single hole proliferating underground. I saw the caribou there. I saw the other drilling in the area. I saw how the caribou and other environmental concerns could be protected. Too often, when the matter has come up on the floor--and it has come up on many occasions--we can't get to the 60-vote threshold; 56, 57, something in that range. It becomes a battle by competing forces who are dug in and entrenched.
I think it is an item the Congress could consider in some greater detail and on a selective basis move in the immediate future to try to increase our own capacity. You don't have to go completely on offshore or completely on shale or completely in any direction, but some studied analysis and some careful consideration, trying to leave the entrenched battle lines which have characterized this body and the House on this issue for so long, would be very salutary and I think could lead to a better result. At least that is one man's opinion, having been there, having looked at it, and having heard people on both sides over the past two decades.
The subject of Medicare is very much a lead topic. It is the lead story in the New York Times this morning, and it is the lead story all across America. It would be my hope that the leaders could yet come to a resolution of the issue on some sensible terms without having a ``gotcha'' vote; without moving forward, as the majority leader did a week ago Thursday, on predicting how many Democratic Senators there would be and making it a test case and having a political cost on the vote, but to try to work it through to get legislation finished so that doctors do not get a 10.6-percent cut. I believe there is widespread support in both bodies not to have that cut go into effect and to alleviate the concerns of seniors that doctors will stop taking Medicare patients because of that cut, which is so excessive--legislation which has been pending for a long time. Each year, the cut comes up, and each year, the cut is rescinded.
The core problem on this issue really arises from the difficulties caused by the procedure known as filling the tree. We have seen, in the course of the past two decades, a new procedure adopted where the majority leader utilizes his primacy--that means his ability to get recognition--to offer an amendment and then to offer a second amendment before any other Senator has a chance to offer an amendment, and then no other Senator can offer an amendment.
When the Medicare bill first came up 2 or 3 weeks ago, I talked to Senator Reid and said that I would support cloture if the procedures of the Senate were honored and an amendment could be offered. He said he would do that. I voted for cloture.
When the bill came up a week ago Thursday, there was no opportunity to offer an amendment because the House of Representatives had passed a Medicare bill and left town. They do that from time to time. They pass a bill, send it over, and leave town. They present an ultimatum to the Senate: Take it or leave it--a rather convenient way to have a de facto amendment to the U.S. Constitution.
The Constitution provides for a bicameral legislature. For those who don't know that highfalutin word, that means there are two bodies. All grade school children know you have to pass a bill in the House and a bill in the Senate, and then it goes to the President for signature or veto. But when the House leaves town, suddenly it becomes a unicameral legislature--a constitutional amendment, all in one fell swoop by buying airplane and railway tickets. Well, I am not prepared to accept that kind of an edict from the House of Representatives or the majority leader or anybody, and it would seem to me that processes were being shortcut. It took the unusual step of writing to the President and urging him to use his constitutional authority to recall the House of Representatives into session during the week of July 4th. I didn't have much expectation that it would be done, but the House ought not to leave town and leave us without recourse to offer amendments, which is our right under the Constitution, and to send it back to the House for their concurrence, and that could be done yet. It is my hope we will move in that direction.
This business of filling the tree is of recent origin. Going back to the 99th Congress in 1985 and 1986, Senator Dole used it five times. Senator Byrd used it in the next Congress three times. In the next Congress, Senator Mitchell didn't use it at all. Then, in the 103rd, for 1993 and 1994, Senator Mitchell used it nine times. Then Senator Lott picked it up a few times in the intervening years until the 106th Congress, when he used it nine times. Then Senator Frist used it nine times in the 109th Congress. So far, Senator Reid has used it 12 times. That process precludes Senators from offering amendments. That is not the way the Senate has been designed to run.
I was concerned about this and made an extensive statement on global warming and in February of last year, some 18 months ago, introduced a rule change and wrote to the chairperson of the Rules Committee and the ranking Republican urging that that rule be taken up so that the Senate can work its will on preserving the right of Senators to offer amendments. Were that to be done, then when the effort was made on cloture, it wouldn't be summarily dismissed if there was a fair chance to offer amendments.
There has been a major development on the very important issues relating to warrantless wiretapping in an opinion issued by the Chief Judge of the U.S. district court in San Francisco on the constitutionality of the Foreign Intelligence Act. The case handed down last Wednesday--some 56 pages, very complicated, very important--is on the issues which are being raised in the debate which we are going to have later this week on FISA. This is the same judge who handed down another very extensive opinion on the litigation involving the 40 telephone companies that are being sued in his court, issued on July 20, 2006, some 29 pages. This case is now under appeal under the state secrets doctrine.
Because of their tremendous impact on the issues which we are going to be considering, interested parties may review Chief Judge Walker's opinion in Al-Haramain Islamic Foundation v. Bush online at: http://www.cand.usÐcourts.gov/cand/judges.nsf/61fffe74f99516Ðd088256d480060b72d/35760d9e4cc9207588257Ð47a0082f983/$FILE/Al <Haramain%Ð20Order%20Following %20Remand%207-2-08.pdf and his decision in Hepting v. AT&T, located at 439 F.Supp. 2d 974 (N.D. Cal. 2006).
Mr. SPECTER. The core of Chief Judge Walker's opinion is a very important holding, and that is essentially that the Foreign Intelligence Surveillance Act is the exclusive way to have wiretapping and that the President exceeded his constitutional authority in putting into effect the terrorist surveillance program.
This is what Chief Judge Walker had to say:
Congress appears clearly to have intended to, and did, establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities.
The Supreme Court of the United States candidly ducked the issue in the case coming out of Detroit. The Federal judge there had held the terrorist surveillance program unconstitutional. The Sixth Circuit reversed on the ground of standing, but, as demonstrated from the scholarly dissenting opinion on the standing issue, there was ample grounds to have granted standing. It is really a very flexible doctrine.
Then the Supreme Court of the United States denied certiorari and in effect ducked the case, really avoiding deciding the most important constitutional confrontation of our era on the President's authority under article II and the congressional authority under article I. But now the fat is in the fire again, as of last Wednesday, with Judge Vaughn's opinion.
Then you come down to the issue of standing, which is still to be determined, but this is what Judge Walker had to say about that:
Both plaintiff amici hint at the proper showing when they refer to ``independent evidence disclosing that plaintiffs have been surveilled'' and a ``rich load of disclosure to support their claims'' in various of the multidistrict litigation cases.
So that when you have Judge Walker, who has the consolidation of the 40 cases picking up this issue, there is strong--well, it is more than a suggestion or a hint; it is a pretty extensive statement that there is a rich load of disclosure to support the claims of standing.
The business about the court stripping is always problemsome. But it is especially problemsome in the context of an ongoing case that is about to reach fruition, where such extensive consideration has been given and a decision may be imminent. It is very unseemly on our doctrine of separation of powers for the Congress to step in and grant retroactive immunity.
This is especially problemsome, as I see it, because we are being asked to grant retroactive immunity where there has not even been an on the record disclosure of what we are immunizing. You have the allegations as contained in the litigation--the allegations of data mining--but you have a program where most of the Members of Congress have not even been briefed on it. Yet we are asked to come in and grant retroactive immunity.
It is especially problemsome, as I see it, because we could maintain the program and still not subject the telephone companies to liability in a couple directions. The telephone companies have been good citizens. When this matter came up several months ago the first time in the Senate, I proposed an amendment to substitute the Federal Government as the party defending. The party can take over the litigation in the shoes of the telephone companies, with the same defenses, no more and no less than the telephone companies have, no governmental immunity, no sovereign immunity but State secret doctrine, if it applied. That way, you don't foreclose the courts from acting.
There is another alternative, which is my pending amendment--scheduled to be argued and voted upon this week. Our legislation does not give it to the Foreign Intelligence Surveillance Courts but to the district courts generally. But all there has to be is a showing that there was a request made in the proper form by the administration to the judge for carrying out this program, whatever it is. That is under our bill. Well, my amendment would broaden that to give the court the jurisdiction to decide constitutionality.
In a sense, that has already been foreclosed by what Judge Walker said last Wednesday in finding the terrorist surveillance program unconstitutional. The Foreign Intelligence Surveillance Act of 1978 not only covers warrantless wiretapping, but it covers pen registers and it covers trap-and-trace devices. So presumably--and this is all a matter of presumption because we don't know exactly what the program is--it would cover whatever program there is at issue in this legislation.
And then we have the amendment pending by Senator Bingaman, which I am working on with him collaboratively, which picks up the obligation of the inspectors general of the various intelligence agencies to review the program and then to send it back to Congress 90 days later to see if we will uphold it when we know something more about the program. Certainly, today, it qualifies as a pig in a poke. We don't know what it is for which we are asked to grant retroactive immunity. So another alternative would be the proposal that Senator Bingaman has introduced, which I have cosponsored, which would call for the decision at a time when Congress at least knows a little something about what it is we are voting on.
In essence, I submit that we have come to a very serious situation where, in the future, historians are going to look back at the period from 9/11 to the present time as the greatest expansion of executive authority in history. The Congress has been totally ineffectual to restrain that. The National Security Act of 1947 requires that both intelligence committees be fully briefed on programs such as the terrorist surveillance program, which was violated by the President and the executive branch. Briefings were not made until piecemeal, and finally they needed the confirmation of General Hayden. It has been longstanding tradition for the executive branch to tell the chairman of the Judiciary Committee and the ranking member about this. It came as a surprise to me by reading the New York Times one Friday in December of 2005, when we were arguing the PATRIOT Act on the final day and expected to pass it, and the legislation blew up in our faces when that was disclosed. Some Senators said they intended to vote for the PATRIOT Act but didn't do so when confronted with the secret program that the administration had not disclosed. But the administration violated the statute and had no recourse. The administration violated the Foreign Intelligence Surveillance Act and could not get a review by the Supreme Court of the United States in the case coming out of Detroit and the Sixth Circuit.
Then you had the hesitancy of the Supreme Court ruling on habeas corpus. In Rasul, Justice Stevens's opinion goes at great length to trace the constitutional common-law basis for the right of a writ of habeas corpus, starting with John at Runnymede, which was 1215. There was an alternative analysis of the statute on habeas corpus. The case gets to the District of Columbia Circuit Court, and they ignore the citations of constitutional authority and say: Well, Congress changed the statute and that governs, flying in the face of a Supreme Court direction and order from a superior court. And then the Supreme Court danced around Boumediene for a long time. First, cert was denied, and then in an unusual petition for reargument, taking five votes, granted cert because of the ineffective and insufficient procedures of the combat status review board.
So you have a long history of ineptitude--total ineptitude--by the Congress and more than ineptitude by the Congress, complicity in passing the Military Commissions Act and facilitating a free hand by the administration in changing the legislation on habeas corpus. That should not have had an impact on the ultimate result because habeas corpus is a constitutional right, and the Supreme Court finally got around to saying so when confronted with the totally insufficient procedures on the combat status review board. So we have another chance when the
FISA legislation comes up. We have a lot of guidance, from what Chief Judge Walker has had to say.
It is understandable that the Congress continues to support law enforcement powers because of the continuing terrorist threat. No one wants to be blamed for another 9/11. My own briefings on the telephone companies' cooperation with the Government--and I speak in terms only of reports and allegations because it is not a matter of record--my own briefings on the telephone companies' cooperation with the Government have convinced me of the program's value, so that I voted for it, even though my amendment to substitute the Government for the telephone companies was defeated in the Senate's February vote. Similarly, I am prepared to support it again as a last resort, even if it cannot be improved by providing for judicial review.
However, since Congress has been so ineffective in providing a check and balance, I will fight hard this week--starting today with this speech--to secure passage of an amendment to keep the courts open. When the stakes are high, as they invariably are when Congress addresses civil liberties and national security, Members frequently must choose between the lesser of two imperfect options. Unfortunately, we too often back ourselves into these corners by deferring legislation until there is a looming deadline or a congressional recess. Perhaps that is why so many of my colleagues have resigned themselves to accept the current bill without seeking to improve it.
I ask my colleagues to look to Judge Walker's opinions as guidance as to what we ought to be doing to back him up on what he has done, in a courageous way, in taking the bull by the horns and declaring the terrorist surveillance program unconstitutional and setting the path for standing.
Although I am prepared to stomach the bill if I must, I am not ready to concede that the debate is over. Contrary to the conventional wisdom, I don't believe it is too late to make this bill better. Perhaps the Fourth of July holiday will inspire the Senate to exercise its independence from the executive branch now that we have returned to Washington.
I thank the Chair and my distinguished colleague from North Dakota for his patience--if he has any. Senator Dorgan customarily does.
I yield the floor.
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