WAMU-FM "The Diane Rehm Show" - Transcript

Interview

MS. REHM: As we talk about several amendments being considered to the FISA law, the Foreign Intelligence Surveillance Act and joining us now by phone from his Senate office is Senator Arlen Specter. He's a Republican of Pennsylvania and ranking member of the Senate Judiciary Committee.

Good morning to you, sir. Thanks for joining us.

SEN. SPECTER: Good morning, Diane. Thank you for the invitation. This Senate consideration comes at a very critical time because just last Wednesday, the chief judge, Judge Walker of the District Court of San Francisco who has jurisdiction over these telephone cases and also consolidated jurisdiction nationwide, handed down a very important opinion where he found the terrorist surveillance program was unconstitutional, in violation of the Foreign Intelligence Surveillance Act and also said that from the other pending cases he put it there was a, quote, "rich load," closed quote of materials on the standing issue, highly complicated, and he didn't decide it in his 59-page opinion. But I think it's pretty clear that it's not a coincidence that he came down with this major decision.

MS. REHM: Well, I know that tomorrow the Senate is going to consider three amendments related to that issue, the immunity for the telecom companies. You're sponsoring two of them.

Explain what they would do.

SEN. SPECTER: Well, the amendments that I'm backing would require that there be a judicial determination by the district court on constitutionality. Of course, that's already been decided by Judge Walker and the case would go to him. That standard instead of just -- that the papers were in order submitted by the Department of Justice, which is just the attorney general's unilateral statement that it's constitutional.

So my bill would require that before you have any grant of immunity. It seems to me very hard to give retroactive immunity when most members of Congress have not been briefed and don't know what the program is. A few of us have been briefed and it's confidential, but all we have are allegations about what the telephone companies are supposed to have done, but it's not in the public domain except in a speculative basis and it seems to me it's just very, very hard to do that.

We face a tough situation here, Diane, in that the program by all accounts is highly effective and we don't want to lose it. But we could keep the program and still protect constitutional rights by substituting the government and the party defendant in the shoes of the telephone company. This is pretty heavy stuff on a five-minute interview, but that's a brief --

MS. REHM: And you clearly believe that this is important. Would you vote for this bill if your two amendments do not pass?

SEN. SPECTER: With great reluctance, Diane, I will only because of the superceding importance of preventing another terrorist attack. I think that's a sentiment you see far and wide in so many of the votes, which have been taken. There is a great dislike for the vast expansion of executive authority, but when the showdown comes, the dangers from another terrorist attack are just horrifying.

MS. REHM: All right. So suppose your amendments do pass. Is it worth risking a presidential veto? Yesterday, we heard the attorney general and the director of national intelligence tell the Senate majority leader that they would recommend a veto if an amendment delaying immunity passes.

SEN. SPECTER: Well, I'd be more than willing to risk a presidential veto. Let him do it. That's his constitutional authority. I don't think the Congress ought to back off from our constitutional responsibilities. Too often, a veto threat comes out of the White House and the Congress caves in. We don't want to have a fight. Well, the Constitution was not designed to give the president supremacy. He can veto it and then there are open questions that are subject to negotiation. But he needs this program and I think he has to be flexible and I haven't yet gotten a good answer from the White House as to why we shouldn't have the government substituted as the party defendant.

Listen, the telephone companies have been good citizens. They did what they were asked to do. But you can keep the courts open. If you don't have the courts open, Diane, Congress has been totally ineffective in restraining executive power. I think historians will look back at this period from 9/11 to now as the greatest expansion of executive authority, that intelligence committees weren't notified in violation of the statute. The terrorist surveillance program was ignored. Congress could never legislate to get that done.

You have the Supreme Court ducking this issue, on the Detroit decision which was upheld by the 6th Circuit on grounds of lack of standing 2-1 and if you read the dissenting opinion, you hear very tough stuff, there was ample room for the Supreme Court to hear that case and decide the constitutional confrontation.

MS. REHM: So what chances do you see right now for any of the amendments passing?

SEN. SPECTER: Well, it depends on your listenership, Diane. I was on the floor yesterday explaining my position and I said that it depends upon public reaction. We've had the Sunday shows, for example, just filled with presidential material when this is a dominating issue. It attracted virtually no attention in the mainstream press. Thank God for NPR. But if enough people understood what was going on, if Judge Walker's opinion holding the terrorist surveillance program unconstitutional reached enough people -- we just got back from a week recess. It's time Congress declared its own independence from this executive expansion.

MS. REHM: Finally, Senator, I want to ask you how you are?

SEN. SPECTER: Well, pretty good. I finished the 11th of 12 chemotherapy treatments and my approach to them is that they're tough, but tolerable and it's good to be dizzy, Diane, and I am.

MS. REHM: I'm glad. Thank you so much for joining us. Senator Arlen Specter of Pennsylvania. Good luck tomorrow.

SEN. SPECTER: Thanks very much. Thank you, Diane.

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