FISA Amendments Act of 2008
Floor Speech
FISA AMENDMENTS ACT OF 2008 -- (Senate - July 08, 2008)
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Mr. SPECTER. Mr. President, would the distinguished Senator from Wisconsin yield for a question?
Mr. FEINGOLD. I will.
Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was a very extensive analysis of these issues by Chief Judge Walker of the San Francisco District Court handed down last Wednesday, and I think it was no coincidence that the decision preceded just a few days--after everybody knew, including Chief Judge Walker--of the Senate taking up this question.
In that opinion, Chief Judge Walker finds the Terrorist Surveillance Program unconstitutional. He says, flatly, that the language of the Foreign Intelligence Surveillance Act of 1978 means what it says on the exclusive remedy for warrants, and that the President exceeded his article II powers as Commander in Chief.
As we all know, the Detroit District Court came to the same conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on standing, and then the Supreme Court of the United States handily ducked the question by the noncert. That is the principal constitutional confrontation of our era, on article I powers by Congress and article II powers of the President as Commander in Chief. They denied cert. And on the standing issue, as disclosed by the Senate opinion in the Sixth Circuit, the Supreme Court could easily have taken the case to resolve this big issue.
But now Judge Walker has decided, and it is very significant, because Judge Walker has these more than 40 cases pending on the effort to grant retroactive immunity. The case he decided it on is the Oregon case where State secrets are involved, with the inadvertent disclosure by the Federal agents.
It is hard for me to see how you have a State secret which is no longer secret. And you have a document, just electronic surveillance, which was disclosed, so it is no longer a secret. That remains to be decided under the opinion of Chief Judge Walker, but he says there is a ``rich lode'' of material on the standing issue.
These questions involve extraordinarily complex matters. The Senator from Wisconsin knows that. He has been deeply involved in it. And the distinguished chairman knows that, because he has been deeply involved in these matters. My question to the Senator from Wisconsin is twofold:
One, what do you see as the immediate ramifications of Chief Judge Walker's opinion handed down a few days before we are to decide it?
And a related question: What do you think of the likelihood that Members of the Senate have had or could have an adequate opportunity to review that 59-page opinion with all of its detailed ramifications?
Mr. FEINGOLD. Mr. President, I thank the Senator for asking the question. Yes, I referred to this decision in my brief comments about this amendment. I think it is obviously a significant decision. As I indicated, it deals with the State secrets issue. It says that FISA is in fact the exclusive means and that the evidentiary rules regarding FISA should control, rather than State secrets. That is an important finding. But even more important is what the Senator from Pennsylvania is alluding to, which is the broader issue that the judge didn't decide, but clearly he indicated where he would head on the question of whether the President's TSP program was illegal--and I have long believed that it was illegal. In fact, the Senator and I were the first Members to comment on the revelation of this program in December of 2005 on the floor of the Senate.
I have examined it closely myself, as a member of the Intelligence Committee and the Judiciary Committee, and I feel even more strongly today than I did then that this program was illegal and there needs to be accountability for that illegality. That accountability can come in part from litigation of the kind that involved this district court decision, and it can come from other cases that are pending. But my concern, of course, is that if we jam this bill through, it may have an impact on the ability to pursue that underlying legal issue because of the effective granting of immunity to telephone companies. So this decision has significance, but I can't tell you that I know all the ramifications.
Obviously, Members of the Senate, to answer your question, should review the opinion and have a chance to find out more about the opinion. But there are 70 Members of the Senate who haven't even had the benefit of what you and I have had, which is the briefing on the actual TSP and what happened from 2001 to 2007 with regard to wiretapping.
I thank the Senator for making this important point about Senators being ready to grant this immunity without reviewing the litigation.
Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield for just one more question? And that is, in the context, is the Senator--I asked him to yield for one more question, and I will use a microphone so perhaps he can hear me, perhaps some people on C-SPAN2 will hear me, perhaps some Senators will hear me, because we need to be heard on this subject because of its complexity.
The question relates to what the Senator from Wisconsin has said. He puts it at some 70 Members of the Senate have not been briefed on the program. I have heard from House leadership that most of the Members of the House have not been briefed on the program. There has been no official determination. The language is picked up from the allegations of the complaint as to what is alleged.
The question is, How can the Congress intelligently decide--maybe that is too high a standard. But how can the Congress, especially the world's greatest deliberative body, the U.S. Senate--how can the decision be made on electronic surveillance, granting retroactive immunity, when we don't know what we are granting retroactive immunity to?
The second part is, How can we fly in the face of the decision by the judge who is ruling on these cases--we are sending them all to him--when he, speaking for the court: The law of the case is that the terrorist surveillance program is unconstitutional, that it exceeds the authority.
The Foreign Intelligence Surveillance Act also covers the pen register and related items, so--not specifying what is involved here--whatever is involved, sending it to the judge who has already said it is unconstitutional. How can we deal in an intelligent manner given those two critical factors?
Mr. FEINGOLD. Mr. President, I again thank the Senator from Pennsylvania for his comments and question. Really, the only appropriate answer is to say ``amen'' to everything he just said. Think about this: To vote on anything when 70 Members of the Senate haven't been briefed on it seems unbelievable, and then you add to it that it has to do with the most critical issue of our time: How can we best protect our country from those who attacked us while also observing the rule of law? That would be bad enough. But then you add to it, as the Senator from Pennsylvania has indicated, that this goes to the very core issue of the structure of the Constitution. Is it really true, as the administration puts forward in defense of the TSP program, that article II of the Constitution somehow allows the executive and Commander in Chief power to override an absolutely clear, exclusive authority adopted by Congress pursuant to Justice Jackson's third tier of the test set out in his Youngstown opinion?
All of these levels are implicated by this. The Senator could not be more correct. This is an amazingly inappropriate use of legislative interference, pushed by this administration, and Senators should take a very hard look at whether they want to be associated with such an attack on the rule of law in this country.
I yield the floor.
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Mr. SPECTER. Mr. President, would the Senator yield for a question; two questions, very briefly?
Mr. ROCKEFELLER. Of course.
Mr. SPECTER. The first question relates to the fact, as represented, that some 70 Members of the Senate will not have been briefed on the program.
I have been advised by the leadership in the House that most of the Members of the House have not been briefed on the program. The chairman, in detail, went over what the telephone companies cannot do because they cannot make any public disclosures.
And my question is: How can we intelligently grant retroactive immunity on a program that most Members of Congress do not know what we are granting retroactive immunity on?
Mr. ROCKEFELLER. First of all, I should point out to the distinguished Senator from Pennsylvania that there was a period when members of the Intelligence Committee, members of the Judiciary Committee, were not even able to go to the Executive Office Building to look at any of the orders that came down, President to Attorney General to National Security Advisor, then a letter to the companies. We were not allowed to do that.
The chairman and the vice chairman were allowed to do that. Nobody else was. That changed. And it changed because this Senator and a number of others put tremendous pressure, because it was such a ridiculous situation that I could not even talk to my committee members about it. And so they expanded that to include not only committee members but also some staff from both the Intelligence and Judiciary
Committees.
So I would say to the good Senator that intelligence is difficult, and it is difficult to legislate it on the floor of the Senate. Let me phrase it this way. There is a common view held by many that members of the Intelligence Committee and then, to some extent, the Judiciary Committee, in fact, have the intelligence, they control the intelligence, it is all theirs.
I wish to debunk that right now. We control no intelligence. It is entirely controlled, meted out or not, by the executive branch. This executive branch has been extremely cautious, stingy, I would say undemocratic, in doing this.
The good Senator from Missouri who is coming in now, the vice chairman of the Intelligence Committee and I have fought like bears to expand the number of people who can have access to these programs. But I cannot argue that the Senator--his point is worthy of thought.
I think then one has to consider, are the people on the Judiciary Committee and the people on the Intelligence Committee representative of good faith, people of reasonable intellect, people who know their business, and people who exercise fair judgment? I have been handed a note to say something I have already said, that the public reporting accompanying the Senate Intelligence Committee bill, detailed, with a great deal of specificity, what the companies received from the Federal Government.
That still does not allow me to argue the Senator's point. It is a peculiar and difficult nature of legislating intelligence legislation on the floor of the Senate. But it is not weakened by so doing because of what I have indicated, because of what the inspectors general, granted, not in time for this, will come up with, and, secondly, what I would call the very high standard of people who serve on both the Republican and the Democratic side of the Senate and House Judiciary Committee and Intelligence Committee.
Mr. SPECTER. Mr. President, my second question is, very briefly----
Mr. BOND. Mr. President, I would like to reclaim my time.
The ACTING PRESIDENT pro tempore. There are 34 minutes remaining in opposition. The Senator from West Virginia has the floor.
Mr. SPECTER. Mr. President, very briefly on the second question, and I will be very brief--the chairman has gone over the ineffectiveness of Congress in dealing with the statutory requirement for notice to the Intelligence Committees which wasn't followed. We have gone over the ineffectiveness of the courts in dealing with enforcing the Foreign Intelligence Surveillance Act, where the Supreme Court, as I detailed earlier, had ducked the question. So given the ineffectiveness of Congress--and I know, I chaired the Intelligence Committee in the 104th Congress and could find out hardly anything; I found the Director of the CIA knew so little about what was going on--and then the signing statements, the only recourse we have now is to the courts and to Chief Judge Walker.
So my question to you is, if we are to maintain separation of powers and determination of constitutionality, article I versus article II powers, how in the world can we act to divest Chief Judge Walker of his jurisdiction in the case, especially in light of the opinion he handed down last Wednesday?
Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying he indicated that Judge Walker said this was not a constitutional effort between 2001 and 2007, and it was not constitutional. But when the Senator offers his own amendment this afternoon, I will make the point I make now, that even if it is determined that the program is unconstitutional--and that, for reasons I will explain after lunch when we do the amendment, will not be possible--the immunity fact is not compromised. It is not changed. You are talking about the constitutionality of the White House's action. This bill talks about title I and then title II and a couple of other titles which referred to protecting basic rights, reverse targeting, all kinds of things such as that, which, in fact, came from Senator Feingold, and it is not involved in the constitutionality. It is not involved in that. Even if the judge ruled it unconstitutional, it would make no difference whatsoever on title II.
Mr. SPECTER. I respect Senator Bond's time, and I will pursue this with the chairman when my amendment is called up later today.
I thank my colleagues.
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