Congressional Record: May 26, 2006 (Senate)
Page S5324-S5325                    


  Mr. SPECTER. Mr. President, I voted against General Hayden for the 
position of Director of Central Intelligence as a protest vote against 
the administration's policy of not informing the Congress, with special 
emphasis on the Judiciary Committee, in a way which enables the 
Congress and the Judiciary Committee to do our constitutional job on 
oversight. I have no quarrel with General Hayden. He is a man with an 
outstanding record. I have no objection to his retaining his military 
status. He has testified in a way, before the Intelligence Committee, 
which was candid. I would be especially pleased to support a fellow 
Pennsylvanian. But in light of what the administration has done on the 
NSA program, which he has headed for many years, I feel constrained to 
vote ``no'' as a protest.
  The administration has not complied with the National Security Act of 
1947, which requires notification of all members of the Intelligence 
Committee. That was only done in the few days prior to the confirmation 
hearings on General Hayden. In fact, the administration for years 
notified only the so-called Gang of 8, the majority and minority 
leaders of the House and Senate, and the chairmen, vice chairman, and 
ranking members of the Intelligence Committees. Just because that had 
been the practice, it is not justification for violating the express 
language of the National Security Act of 1947, which requires 
notification of all members of the Intelligence Committees.
  During the 104th Congress, I chaired the Intelligence Committee, and 
for that period of time I was a member of the so-called Gang of 8. 
Candidly, I don't think the administration told the Gang of 8 very much 
about what went on.
  Be that as it may, admittedly the administration did not tell anybody 
but the Gang of 8 about their electronic surveillance program until it 
was disclosed by the New York Times on December 16 and the Judiciary 
Committee brought in the Attorney General and had pressed on in a 
series of hearings; then, belatedly, a subcommittee was formed in the 
Intelligence Committee and seven additional members were informed. 
Then, at first, the House resisted to having only part of their 
Intelligence Committee informed, but, finally, 11 Members of the House 
were informed. Then, in the wake of the Hayden nomination, the 
administration finally complied with the Act by informing all of the 
members of the Intelligence Committee--I think, plainly, so that they 
could get General Hayden confirmed.
  When the Judiciary Committee called in Attorney General Gonzales on 
February 6, which was the first day we could do it after the mid-
December disclosures and the hearings which we had scheduled on Justice 
Alito, it was an embarrassing performance. The Attorney General refused 
to say anything of substance about what the program was. We were ready 
to retire into a closed session, had that been productive, but it was a 
situation where the Judiciary Committee was stonewalled, plain and 
  The Attorney General then wrote us a letter on February 28 seeking to 
clarify and explain what he had testified to before--and only more 
questions were raised. We have still not resolved the issue as to 
whether we will recall the Attorney General before the Judiciary 
Committee, but there is a question as to its value and whether we can 
get anything from a repeat performance from Attorney General Gonzales. 
As I say, that remains an open question.
  In the interim, I have proposed legislation which would turn over the 
administration's surveillance program to the Foreign Intelligence 
Surveillance Court. That court has a record of expertise. That court 
has a record for not leaking and we could have it make the 
determination as to the constitutionality of the program.
  We had a hearing where we brought in four ex-judges of the Foreign 
Intelligence Surveillance Court who know its operations in great 
detail. They made some suggestions which were incorporated into my 
proposed legislation, thereby improving it. They answered the questions 
about the possibility of an advisory opinion and the issue of the case 
in controversy requirement.
  I have since conferred with Senator Feinstein and Congresswoman Jane 
Harman, ranking member on Intelligence in the House, about working on 
legislation. Both of those individuals have been privy to briefings by 
the administration on the program. There was a suggestion that, with 
additional resources and with some structural changes--for example, 
expanding the 3-day period to 7 days--the FISA Court would be in a 
position to pass, on an individual basis, the program. Whether that is 
so or not, I don't know, but that is a possibility.
  When the disclosures were made about the telephone companies 
providing substantial information to the administration and the NSA, 
the Judiciary Committee scheduled a hearing. We had it set for June 6. 
Yesterday, in an executive session, the issue was considered about 
subpoenas, since two of

[[Page S5325]]

the four telephone companies had requested subpoenas; the issue was 
also raised as to a closed session.
  There were objections raised by some members of the committee about 
calling in the telephone companies. Suggestions were made by other 
members of the committee about calling in other members of the 
  Since we were in the middle of the debate on immigration, we held a 
very brief meeting in cramped circumstances in the President's Room off 
the Senate floor. It was decided to defer the hearing with the 
telephone companies by 1 week to give the committee an opportunity on 
June 6, the same date we had previously scheduled a hearing, to 
consider these issues and decide them at greater length.
  An interesting suggestion was made by one of the members of the 
committee--that in the past, when that member of the Judiciary 
Committee was on the Intelligence Committee, he had called for a secret 
session of the full Senate to discuss matters which had been disclosed 
to him in the Intelligence Committee which he was barred from saying 
publicly. That is an avenue which I am currently pursuing.
  The stonewalling of the Congress--and particularly the Judiciary 
Committee and precluding the Judiciary Committee from discharging our 
constitutional duty of oversight--is particularly problemsome in light 
of a pattern of expanding executive authority.
  A ranking member of the administration reportedly told a ranking 
member of Congress that ``we don't have to tell you anything.'' We have 
scheduled a hearing on signing statements where the President has 
asserted his authority to pick and choose what he likes and what he 
doesn't like in legislation which was passed by the Congress and signed 
by the President.
  The Constitution gives the President the authority to veto but not to 
cherry pick.
  We have the case of Judith Miller, the newspaper reporter put in jail 
for 85 days during an investigation of a national security issue as to 
whether the identity of the CIA agent had been disclosed, but there was 
also an investigation as to whether there had been perjury or 
obstruction of justice during the national security investigation. 
Perjury and obstruction of justice are serious charges, but they do not 
rise to the level of a national security issue, which would be the 
threshold for such action as jailing a reporter for 85 days.
  We now have the situation where the Attorney General, on a Sunday 
talk show last week, raised the possibility of prosecuting newspapers 
under a World War I espionage statute.
  We have the situation where the congressional quarters of Congressman 
Jefferson were subject to a search and seizure warrant without prior 
notification of the Speaker of the House of Representatives or someone 
in the House, with very serious questions raised there.
  I am advised by one of the members of those informed on the 
administration's surveillance program that, reportedly, the FBI now 
seeks to question Members of Congress about disclosures on the 
administration's surveillance program.
  These are all circumstances and situations which pose very 
substantial peril to the separation of powers, and Congress has not 
asserted its Article I powers and ought to do so.
  I have talked to FBI Director Mueller and to the Deputy Attorney 
General about the search and seizure on Congressman Jefferson. This is 
a matter which ought to be inquired into--perhaps quietly--to see if a 
protocol can be arrived at about what would be done if this situation 
were to reoccur in the future.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  (The remarks of Mr. SPECTER pertaining to the introduction of S. 852 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. BYRD. Mr. President, for how long am I to be recognized?
  The PRESIDING OFFICER. For as much time as the Senator consumes.
  Mr. BYRD. I thank the Chair.
  Mr. President, I yield to my distinguished friend from Montana so 
that he may speak for not to exceed 10 minutes, and that I then be 
recognized in my own right.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Montana is recognized for 10 minutes.
  Mr. BAUCUS. Mr. President, thank you, and I thank my good friend from 
West Virginia. I know what he is going to speak on. The person he is 
going to speak about was a great person, a person I very much admired, 
as I admire the Senator from West Virginia--a wonderful relationship, 
wonderful, wonderful. It is a model for so many of us in the Senate and 
the country. I thank my very good friend.
  Mr. BYRD. Mr. President, I thank my dear friend, Senator Baucus, for 
his kind remarks.