Congressional Record: December 5, 2006 (Senate)
Page S11160




 A LABOR, HEALTH AND HUMAN SERVICES, EDUCATION APPROPRIATIONS BILL AND
                             HABEAS CORPUS

  Mr. SPECTER. [...]
  Similarly, it had been my hope that we would have moved on the
legislation to provide protection for civil liberties on the
surveillance program put into effect by the President, which is
designed to protect America from another terrorist attack and to
balance security interests versus privacy interests.
  When this program was disclosed on December 16 of last year, almost a
year ago, we moved ahead in the Judiciary Committee to have a series of
hearings to try to find a way to have judicial review in accordance
with the tradition and concept in the United States, having the
impartial magistrate between the Government and the person subject to
surveillance, to search and seizure, or to wiretapping. The initial
legislation would have given that authority to the Foreign Intelligence
Surveillance Court, which was selected because of the expertise that
court has and because they can maintain secrecy. In my legal opinion,
there is no doubt that the administration program violates FISA, the
Foreign Intelligence Surveillance Act. But the President has asserted
that there was article II power, inherent powers as Commander in Chief,
which warrants this program without--justifies this program without
warrants.
  I cosponsored legislation introduced by the senior Senator from
California, Mrs. Feinstein, which would extend the time for retroactive
approval by the FISA court in 3 to 7 days and would increase the
resources so that according to General Alexander, the head of NSA,
there were such resources to have individualized warrants for calls
originated in the United States and going outside the United States.
According to General Alexander and the National Security
Administration, and General Hayden his predecessor, there are too many
calls coming from outside and in to have individualized warrants. But
it would be an enormous step forward for civil liberties to have the
individual warrants for calls originating in the United States and
going out.
  As to the calls originating outside the United States and coming in,
let's have the judicial determination made as to whether the President
is correct that he has article II powers. That can only be determined
by the court, weighing the invasion of privacy on the one hand against
the interests of security on the other.
  The legislation which I introduced, S. 4051, modifies earlier
versions, modifies the so-called Feinstein-Specter bill by recognizing
the changing circumstances where a number of district courts have taken
up the issue in the U.S. District Court in Detroit to declare the
surveillance program unconstitutional. It is now in the Sixth Circuit.
  Let the process proceed to have the adjudication as to whether the
President is right that there are article II powers or whether there is
a violation.
  The legislation which I have introduced, S. 4051, on November 14,
provides further for mandatory review by the Supreme Court and
expedited review. If we would focus on this issue, we could come to
grips with it and we could legislate. Every day that passes there is
incursion on civil rights and constitutional rights because there are
wiretaps which are not supported by affidavit or probable cause and
court authorization. We have it within our power to alter that today if
we would come to grips with the issues on all the calls originating in
the United States and going out and then, to repeat, to allow the court
to decide whether the President is correct on whether calls outside
coming in are covered by his article II powers.
  It is my hope that this legislation will be taken up early in the
next session because we ought to come to grips with the balance of
rights versus security.


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