Congressional Record: January 25, 2006 (Senate)
Page S35-S108
Judiciary Commmittee Agenda
[...]
Mr. SPECTER.
The Judiciary Committee, on the second item, is scheduled to hold a
hearing on the wartime Executive power and NSA's surveillance authority
on February 6. I think my colleagues will be interested in a letter
which I have written to the Attorney General dated January 24,
yesterday, outlining a series of some 15 questions to be addressed in
advance of the hearing or at the time of the Attorney General's opening
statement--at least that request--to try to set the parameters and
issues of that hearing. I ask unanimous consent that the letter to
Attorney General Gonzalez be printed in the Record at the conclusion of
my statement today.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
U.S. Senate,
Committee on the Judiciary,
Washington, DC, January 24, 2006.
Hon. Alberto R. Gonzales,
Attorney General, U.S. Department of Justice, Washington, DC.
Dear Attorney General Gonzales: I write to let you know
some of the subjects which I would like you to address in
your opening statement on the Judiciary Committee hearing
scheduled for February 6, 2006, on ``Wartime Executive Power
and the NSA's Surveillance Authority.''
(1) In interpreting whether Congress intended to amend the
Foreign Intelligence Surveillance Act (FISA) by the September
14, 2001 Resolution (Resolution), would it be relevant on the
issue of Congressional intent that the Administration did not
specifically ask for an expansion for Executive powers under
FISA? Was it because you thought you couldn't get such an
expansion as when you said: ``That was not something that we
could likely get?''
(2) If Congress had intended to amend FISA by the
Resolution, wouldn't Congress have specifically acted to as
Congress did in passing the Patriot Act giving the Executive
expanded powers and greater flexibility in using ``roving''
wiretaps?
(3) In interpreting statutory construction on whether
Congress intended to amend FISA by the Resolution, what is
the impact of the rule of statutory construction that repeals
or changes by implication are disfavored?
(4) In interpreting statutory construction on whether
Congress intended to amend FISA by the Resolution, what would
be the impact of the rule of statutory construction that
specific statutory language, like that in FISA, trumps or
takes precedence over more general pronouncements like those
of the Resolution?
(5) Why did the Executive not ask for the authority to
conduct electronic surveillance when Congress passed the
Patriot Act and was predisposed, to the maximum extent
likely, to grant the Executive additional powers which the
Executive thought necessary?
(6) Wasn't President Carter's signature on FISA in 1978,
together with his signing statement, an explicit renunciation
of any claim to inherent Executive authority under Article II
of the Constitution to conduct warrantless domestic
surveillance when the Act provided the exclusive procedures
for such surveillance?
(7) Why didn't the President seek a warrant from the
Foreign Intelligence Surveillance Court authorizing in
advance the electronic surveillance in issue? (The FISA Court
has the experience and authority to issue such a warrant. The
FISA Court has a record establishing its reliability for non-
disclosure or leaking contrasted with concerns that
disclosures to many members of Congress involved a high risk
of disclosure or leaking. The FISA Court is a least as
reliable, if not more so, that the Executive Branch on
avoiding disclosure or leaks.)
(8) Why did the Executive Branch not seek after-the-fact
authorization from the FISA Court within the 72 hours as
provided by the Act? At a minimum, shouldn't the Executive
have sought authorization from the FISA Court for law
enforcement individuals to listen to a reduced number of
conversations which were selected out from a large number of
conversations from the mechanical surveillance?
(9) Was consideration given to the dichotomy between
conversations by mechanical surveillance from conservations
listened to by law enforcement personnel with the contention
that the former was non-invasive and only the latter was
invasive? Would this distinction have made it practical to
obtain Court approval before the conservations were subject
to human surveillance or after-the-fact approval within 72
hours.
(10) Would you consider seeking approval from the FISA
Court at this time for the ongoing surveillance program at
issue?
(11) How can the Executive justify disclosure to only the
so-called ``Gang of Eight'' instead of the full intelligence
committees when Title V of the National Security Act of 1947
provides:
Sec. 501. [50 U.S.C. 413] (a)(1) The President shall ensure
that the congressional intelligence committees are kept fully
and currently informed of the intelligence activities of the
United States, including any significant anticipated
intelligence activity as required by this title. (Emphasis
added)
(2)(e) Nothing in this Act shall be construed as authority
to withhold information from the congressional intelligence
committees on the grounds that providing the information to
the congressional intelligence committees would constitute
the unauthorized disclosure of classified information or
information relating to intelligence sources and methods.
(Emphasis added)
(12) To the extent that it can be disclosed in a public
hearing (or to be provided in a closed executive session),
what are the facts upon which the Executive relies to assert
Article II wartime authority over Congress' Article I
authority to establish public policy on these issues
especially where legislation is approved by the President as
contrasted to being enacted over a Presidential veto as was
the case with the War Powers Act?
(13) What case law does the Executive rely upon in
asserting Article II powers to conduct the electronic
surveillance at issue?
(14) What academic or export opinions does the Executive
rely upon in asserting Article II powers to conduct the
electronic surveillance at issue?
(15) When foreign calls (whether between the caller and the
recipient both being on foreign soil or one of the callers or
recipients being on foreign soil and the other in the U.S.)
were routed through switches which were physically located on
U.S. soil, would that constitute a violation of law or
regulation restricting NSA from conducting surveillance
inside the United States, absent a claim of
unconstitutionality on encroaching on Executive powers under
Article II?
This letter will further confirm our staffs' discussions
that the Committee will require, at a minimum, the full day
on February 6th for your testimony.
Sincerely,
Arlen Specter.
