[Congressional Record: June 23, 2008 (Senate)]
[Page S5950-S5953]
FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED
Mr. REID. Mr. President, I now move to proceed to Calendar No. 827,
H.R. 6304, the Foreign Intelligence Surveillance Act.
The ACTING PRESIDENT pro tempore. The motion is debatable.
Cloture Motion
Mr. REID. Mr. President, I send to the desk a cloture motion.
The ACTING PRESIDENT pro tempore. The clerk will report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on the motion to
proceed to Calendar No. 827, H.R. 6304, the FISA Amendments
Act of 2008.
Sheldon Whitehouse, Patty Murray, Max Baucus, Tim
Johnson, Ken Salazar, Barbara A. Mikulski, John D.
Rockefeller, IV, Herb Kohl, Robert P. Casey, Jr.,
Daniel K. Inouye, Mary Landrieu, Blanche L. Lincoln,
Mark L. Pryor, Dianne Feinstein, Thomas R. Carper,
Joseph Lieberman, Claire McCaskill.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, I ask unanimous consent that further
proceedings under the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SPECTER. Mr. President, I have sought recognition to address the
issues on legislation which is coming from the House of Representatives
amending the Foreign Intelligence Surveillance Act.
The issues on which the Senate will vote on the House bill involve
very fundamental questions of constitutional rights versus the war on
terrorism. We have legislation which has come from the House of
Representatives which would grant retroactive immunity to the telephone
companies on a showing that the companies receive written requests from
the Government saying the program was legal.
At the outset, I recognize the telephone companies as good citizens.
But the test of whether what has been done is legal is not determined
by the assertion by the Government to the telephone companies that the
program is legal. That determination can only be made by the courts on
evaluation of congressional authority under article I, which has been
exercised in the Foreign Intelligence Surveillance Act of 1978, since
amended, contrasted with the President's article II powers as Commander
in Chief. That test has not been waived.
I submit the historians will look back upon the period of time from
9/11 to the present and beyond as the greatest expansion of executive
authority in the history of the country. I believe additional law
enforcement tools were necessary. In my capacity as the chairman of the
Judiciary Committee, I led the fight for the PATRIOT Act re-
authorization on this floor to give law enforcement broader power.
But, at the same time, I have expressed my deep concern that there be
a determination by the courts as to whether the warrantless wiretapping
is valid under the Constitution. We have seen great stress laid upon
the provision in the House measure that the exclusive means for
wiretapping will be provided by the statute. But that does not stop the
President from asserting his authority under article II of the
Constitution.
The Foreign Intelligence Surveillance Act of 1978 has a similar
provision of exclusivity, but that did not stop the President from
initiating the Terrorist Surveillance Program which was kept secret for
years from the Congress. The President has a sound constitutional
argument that you cannot amend the Constitution by statute; you cannot
take away the President's constitutional authority by a statute, but it
is up to the courts to strike the balance and to make that
determination.
Regrettably, Congress and the efforts which we have made have, I
submit, been totally insufficient. We have had the so-called signing
statements as an expansion of executive authority, and Congress has
been unable to assert its authority under the Constitution on the
legislation we send to the President. The Constitution is plain. Each
House passes legislation. There is a conference report, and it is sent
to the President and presented. Then the President has the option of
either signing or vetoing.
But a practice has arisen in the past, very extensively used by this
administration, to put in signing statements which are at material
variance--that really directly contradict what is in the legislation.
There may be some justification for a signing statement on some minor
matters on an administrative level, but in my formal statement I go
into a couple of examples on a controversy on enhanced interrogation,
or so-called torture, which passed the Senate 90 to 9.
In a celebrated meeting between Senator McCain and President Bush,
they reached a compromise. Then when the legislation went to the
President, the President issued a signing statement saying that he had
the authority to disregard it under his powers as Commander in Chief,
article II authority.
In a similar vein on the PATRIOT Act re-authorization, we put in
restrictions on what the law enforcement officials could do, negotiated
with the administration, signed into law by the President, and again a
statement was made that if the President chose to exercise his
constitutional authority, article II power, he felt free to do so.
I introduced legislation to give the Congress standing to go to court
to challenge these signing statements. The legislation has not gotten
very far because of the impossibility of overriding a veto and because
of the concern as to whether the constitutional standard of the case
and controversy would be met. So here we have the unfettered practice
of these signing statements as an example of executive authority.
Second, the Supreme Court review of the Terrorist Surveillance
Program and habeas corpus has been inadequate. In the Detroit case, the
Federal court finding the Terrorist Surveillance Program
unconstitutional was appealed to the Sixth Circuit. After lengthy
delays, the Sixth Circuit reversed the Detroit Federal court on the
grounds of lack of standing. Then, again, after months of delay, the
case went to the Supreme Court of the United States which, again,
denied certiorari.
The issue of standing has sufficient flexibility, as demonstrated by
the dissent in the Sixth Circuit, that the Supreme Court could have
taken up the issue. The question on the Terrorist Surveillance Program
presents the sharpest conflict of our era on the clash between the
President's authority under article II as Commander in Chief and the
authority of Congress to enact statutes, as we did under the Foreign
Intelligence Surveillance Act of 1978.
Similarly, on habeas corpus, notwithstanding the Rasul decision, the
Court of Appeals for the District of Columbia in Boumediene essentially
disregarded the holding of the Supreme Court in Rasul when the Circuit
Court for the District of Columbia said the decision by the Supreme
Court turned on a statutory interpretation.
Habeas corpus is provided for in two ways under our law: No. 1, it is
descended from the Great Writ, the Magna Carta, of 1215, and it is
embodied in our constitutional law as made plain by Justice Stevens in
Rasul. And there is also a statutory provision for habeas corpus. In
the Military Commissions Act, the Congress modified the statutory
provision, and the Court of Appeals for the District of Columbia saw
fit to say that once the statute was changed, habeas corpus didn't
apply--really flying in the face of what the holding was in Rasul.
Finally, a protracted period of time later, in Boumediene, the
Supreme Court reinstated habeas corpus as it was bound to do based upon
the clear holding of Rasul and the long history of the issue.
Congress has similarly been ineffective in curtailing executive
authority in the National Security Act of 1947, which requires the
President to notify the intelligence committees of both the House and
Senate, and for protracted periods of time the executive branch ignored
that requirement. Only when the confirmation of General Hayden as
Director of CIA came up was
[[Page S5951]]
there some compliance with that requirement.
The Judiciary Committee, during my tenure as chair, sought to bring
in the telephone companies, sought to issue subpoenas to find out what
the telephone companies were undertaking. On that situation, as I have
said on the floor of the Senate, Vice President Cheney personally went
behind my back to talk to Republican members of the Judiciary Committee
without talking to me at any stage. That effort was made because the
telephone companies, unlike the executive branch, unlike the
President--the telephone companies do not have executive privilege.
Similarly, the Senate defeated my amendment on the Foreign
Intelligence Surveillance Act which would have substituted the
Government for the telephone companies as the parties defendant. There
was a way that the telephone companies could have been recognized for
their good citizenship and held harmless by having the Government step
into their shoes. But that amendment was defeated.
I submit the case for this determination has a very important
dimension beyond the customary doctrine of separation of powers because
we are asked to give retroactive immunity to something while we don't
even know on the record the full import of what is involved. The
warrantless wiretapping, the data mining by the telephone companies is
known only to some Members of Congress. It is not known to the public.
I intend to offer an amendment which will require that the district
court--the House bill now lodges jurisdiction in the district court to
make the determination on the legality of FISA--my amendment will call
for the district court to make the determination as to whether what has
been done by the telephone companies is constitutional.
The ultimate vote on this matter is a tough one. There are quite a
number of provisions in the House bill which are protective of civil
liberties. I have detailed them in my formal written statement. So when
I come to a balance as to voting for the bill or not, my inclination is
to vote in favor of the bill because of the importance of the ongoing
activities of the telephone companies, notwithstanding my deep concern
for civil rights. But there is a much better alternative, and that much
better alternative would have been to have substituted the Government
for the telephone companies as the party defendant or, now, to submit
the question of constitutionality to the district court.
My vote was misunderstood on the Military Commissions Act. When I had
led the fight to retain habeas corpus in that bill, it was defeated 51
to 48--but we later voted for the bill because of its recognition of
the applicability of the Geneva Conventions and other important parts
of the bill. I said at the time that because of the severability
clause, the Supreme Court of the United States would reinstate habeas
corpus--which, of course, in the past couple of weeks, we know the
Supreme Court has done.
We are dealing here, essentially, with very subtle and very nuanced
provisions. There are very tough judgments to be made in the
legislative context. The war on terrorism is still on the front burner.
We do not know what is going to come next.
So that any time there is a balance as to what we ought to do,
because of the value which I think is present from this data-mining and
the work done by the telephone companies, I think it ought to be
maintained. But where we have an option of doing it in a constitutional
way, either by sunshine or by submitting it to the court, that is the
preferable course of conduct.
I ask unanimous consent that the full text of a detailed statement
summarizing my position and a draft amendment be printed in the Record
so my colleagues will have an opportunity to review both my written
statement and my oral presentation of the proposal for an amendment
which I intend to offer when the bill comes up.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Floor Statement on FISA
The Senate is coming to a critical vote on our duty to
exercise our most fundamental constitutional obligation on
separation of powers: to strike the appropriate balance
between the war against terrorism and protecting civil
rights. We are asked by the House of Representatives to
approve their bill on amending the Foreign Intelligence
Surveillance Act, a bill which gives retroactive immunity to
the telephone companies that facilitated warrantless
surveillance, but does not require a judicial determination
that the government's program was constitutional.
It is totally insufficient to confer immunity merely
because the companies received written requests from the
government saying the program was legal. While it is true
that the standard of review has been changed from ``abuse of
discretion'' to ``substantial evidence'' in this bill, the
real question is ``substantial evidence'' of what? Only that
the President authorized the program and the government sent
written requests to the companies assuring them it was legal.
The court is not required to find that the requests were
lawful, or that the surveillance itself was constitutional.
The provision that the legislation will be the exclusive
means for the government to wiretap is meaningless because
that specific limitation is in the 1978 Act and it didn't
stop the government from conducting the warrantless Terrorist
Surveillance Program with the telephone companies'
assistance. The bill leaves the President with his position
that his Article II powers as commander in chief cannot be
limited by statute. That is a sound constitutional argument,
but only the courts can ultimately decide that issue, and
this bill dodges the issue by limiting judicial review.
The constitutional doctrine of separation of powers has
been mangled since 9/11. I believe that, decades from now,
historians will look at the time between 9/11 and the present
as the greatest expansion of unchecked executive power in the
history of the country. I believe that much, if not most, of
that power was necessary to fight terrorism and I led the
fight as Chairman of the Judiciary Committee to expand law
enforcement powers under the PATRIOT Act. I also offered
numerous pieces of legislation designed to bring the
Terrorist Surveillance Program under federal court review and
to ensure that vital intelligence gathering could continue
with appropriate oversight. In the 109th and 110th
Congresses, I introduced several versions of the National
Security Surveillance Act (first introduced on March 16,
2006), the Foreign Intelligence Surveillance Improvement and
Enhancement Act (with Senator Feinstein, first introduced on
May 24, 2006), and the Foreign Intelligence Surveillance
Oversight and Resource Enhancement Act (first introduced on
November 14, 2006).
There has to be a check and balance. The Congress has been
totally ineffective, punting to the courts and then seeking
to limit the courts' authority as the House of
Representatives is now doing. The problem is compounded by
the fact that the Supreme Court had ducked and delayed
deciding where the line is between Congressional authority
under Article I and presidential authority under Article II.
Let me document the ineffectiveness of Congress:
(1) Signing Statements: The constitution is explicit that
Congress sends legislation to the president who has only two
options: sign or veto. Instead on key provisions limiting
executive authority, including Senator McCain's amendment--
adopted 90 to 9 in the Senate--to ban ``cruel, inhuman or
degrading'' treatment of any prisoner held by the United
States, and the new PATRIOT Act sections requiring audits and
Congressional reporting to ensure the FBI does not abuse its
terrorism-related powers to secretly demand the production of
records, the President has signed the Congressional
presentment and then issued a statement asserting his Article
II power to ignore those limitations.
My legislation to give Congress standing to challenge the
constitutionality of those signing statements has gone
nowhere because of three factors: (1) The disinclination of
Congress to challenge the president in the context of getting
blamed if there were another terrorist attack; (2) the
virtual impossibility of overriding a veto; and (3) the
doubts by a few that such legislation would satisfy the
constitutional requirements of the case and controversy.
(2) Requiring Supreme Court Review of the TSP and Habeas:
The efforts to get a Supreme Court ruling on the
constitutionality of the Terrorist Surveillance Program were
ducked by the Supreme Court. The ruling of the U.S. District
Court in Detroit holding the Terrorist Surveillance Program
unconstitutional was reversed by the 6th Circuit on a 2-1
vote on lack of standing and the Supreme Court denied
certiorari. The doctrine of standing has enough flexibility,
as demonstrated by the dissent in the 6th Circuit, to have
enabled the Supreme Court to take up the most fundamental
clash between Congress and the president in our era, if the
Supreme Court had the courage to do so.
The Supreme Court acted almost as badly on the habeas
corpus issue in initially denying certiorari on the D.C.
Circuit's decision in Boumediene, which ignored the plain
language in Rasul confirming that habeas corpus was a
constitutional right, not just one based on legislation which
Congress had changed. Only when confronted with the
overwhelming evidence on the inadequacy of the Combat Status
Review Tribunals did the Supreme Court finally grant a
petition for reconsideration on certiorari and ordered the
District Courts to grant habeas corpus review after a very
long delay.
[[Page S5952]]
(3) Violation of the National Security Act: The Congress
was remedy-less to do anything when the President ignored the
National Security Act of 1947 which requires notification of
programs like the Terrorist Surveillance Program to the House
and Senate Intelligence Committees. It was only when the
administration needed the confirmation of General Michael
Hayden to be Director of the CIA that any effort at
compliance was made.
(4) Subpoenas for Telecoms: My efforts as Chairman of the
Judiciary Committee in June 2006 to get information about the
telephone companies' warrantless wiretapping were obstructed
by an unusual breach of protocol by Vice President Dick
Cheney personally when he went behind my back to urge other
Judiciary Committee members to oppose my efforts to subpoena
the telephone companies which, unlike the administration,
could not plead executive privilege.
(5) Military Commissions Act: Congress has been docile,
really inert, in failing to push back on the executive's
encroachment on our authority. My amendment to retain habeas
corpus in the Military Commissions Act was defeated 48-51.
Meanwhile, the Graham-Levin amendment to the National Defense
Authorization Act for Fiscal Year 2006 passed by the shocking
vote of 84-14 despite the fact that it was drafted overnight,
had no hearing and virtually no debate with my having only
two minutes to speak in opposition. On its face the amendment
stripped the Supreme Court of jurisdiction by vesting
exclusive jurisdiction with the District of Columbia Circuit.
It would be hard to find an amendment on a more important
subject given less scrutiny and passed with less thought and
in such haste.
(6) FISA Substitution Amendment: Similarly, the Senate
defeated my amendment to the Foreign Intelligence
Surveillance Act which would have substituted the government
for the telephone companies as the defendants in the pending
litigation. That would have protected the telephone companies
but left the courts to decide if the program was
constitutional.
The Senate now has the opportunity to provide for judicial
review by amending the House Foreign Intelligence
Surveillance Act bill to authorize the U.S. District Courts
to determine the constitutionality of the administration's
program before granting immunity to the telephone companies.
The case for that determination has an important extra
dimension beyond separation of powers. It involves a
repugnant factor; namely, that the government had instigated
and maintained for many years a secret practice, the scope of
which is unknown to the public and known only to some members
of Congress. It smacks of Star Chamber proceedings from old
England. Now the administration insists on retroactive
immunity and the House has complied. It is time the Senate
stood up and earned its reputation as the ``world's greatest
deliberative body'' and at least demonstrate some courage, if
not a full profile, by insisting on judicial review.
In offering an amendment for judicial review, I am mindful
of the importance of what the telephone companies have been
doing on the war against terrorism from my classified
briefings. It is a difficult decision to vote for retroactive
immunity if my amendment fails, but I will do so, just as I
voted for it when my substitution amendment failed because I
conclude that the threat of terrorism and the other important
provisions in the House bill outweigh the invasion of
privacy.
I do so with great reluctance because it sets a terrible
precedent for the executive to violate the Foreign
Intelligence Surveillance Act, the National Security Act of
1947, and the presentment clause of the constitution and then
receive a Congressional pardon. It is especially galling
since Congress could both protect the telephone companies by
substitution and allow the lawsuits to go forward or
authorize their continuance by my amendment.
I also intend to vote for the bill regardless of what
happens to my amendment because of the other important
features of the bill. It requires prior court review of the
government's foreign-targeted surveillance procedures, except
in exigent circumstances (the 7-day exception). Also, the
FISA Court must determine whether--going forward--the foreign
targeting and minimization procedures satisfy the Fourth
Amendment. The bill also requires prior, individualized court
orders based on probable cause for U.S. persons when they are
outside the country. And, the bill requires a comprehensive
Inspector General review of the Terrorist Surveillance
Program.
I know that this nuanced position of fighting retroactive
immunity and then voting for the bill will be misunderstood
because of the complexity of the issues and the subtleties of
my rationale.
I have been similarly misunderstood in my castigation of
the provisions eliminating statutory habeas corpus and court-
stripping in the Military Commissions Act and then voting for
the bill. I did so, and gave my contemporaneous reasons,
because the Act contained many important provisions, such as
implementing the Geneva Conventions in accordance with the
Supreme Court's Hamdan ruling. The Act also brought the
military commissions within Congressional authorization and
the law--something the current bill seeks to do for vital
intelligence gathering. I said at the time that the Supreme
Court would strike the exclusion of habeas corpus, leaving
the rest of the Act intact under the severability clause, and
that did happen in Boumediene.
It is my hope that my colleagues in the Senate and House
too would give a little extra consideration to this issue
because it is past time for Congress to assert itself and at
least leave the courts free to determine constitutional
rights and separation of powers.
____
Draft Amendment
In section 802(b) of the Foreign Intelligence Surveillance
Act of 1978, as added by section 201 of the Act, strike
paragraph (1) and insert the following:
``(1) Review of certifications.--
``(A) In general.--Except as provided in subparagraph (B),
a certification under subsection (a) shall be given effect
unless the court finds that such certification is not
supported by substantial evidence provided to the court
pursuant to this section.
``(B) Covered civil actions.--In a covered civil action
relating to assistance alleged to have been provided in
connection with an intelligence activity involving
communications that was authorized by the President during
the period beginning on September 11, 2001, and ending on
January 17, 2007, a certification under subsection (a) shall
be given effect unless the court--
``(i) finds that such certification is not supported by
substantial evidence provided to the court pursuant to this
section; or
``(ii) determines that the assistance provided by the
applicable electronic communication service provider was
unconstitutional.
