[Congressional Record: April 23, 2009 (Senate)]
[Page S4679-S4680]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER:
S. 877. A bill to provide for the non-discretionary Supreme Court
review of certain civil actions relating to the legality and
constitutionality of surveillance activities; to the Committee on the
Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to introduce
legislation that will mandate Supreme Court review of challenges to the
warrantless wiretapping program authorized by President Bush after 9/
11, commonly known as the Terrorist Surveillance Program or TSP.
While the Supreme Court generally exercises discretion as to whether
it will review a case or grant ``certiorari,'' there are precedents for
Congress to direct Supreme Court review on constitutional issues--
including the statutes forbidding flag burning and requiring Congress
to abide by Federal employment laws--and the gravity of this issue
merits Congressional action.
In August 2006, Judge Anna Diggs Taylor of the U.S. District Court
for
[[Page S4680]]
the Eastern District of Michigan issued a 43-page opinion finding the
TSP unconstitutional. At the time, many applauded and many others
criticized her decision, but we have yet to see appellate review on the
merits. Instead, in July 2007, the U.S. Court of Appeals for the 6th
Circuit overturned the district court's decision on other grounds. By a
2-1 vote, in ACLU v. NSA, it declined to rule on the legality of the
program, finding that the plaintiffs lacked standing to bring the suit.
The Supreme Court then declined to hear the case, even though the
doctrine of standing has enough flexibility, as demonstrated by the
dissent in the 6th Circuit, to have enabled it to take up this
fundamental clash between Congress and the President.
With the Supreme Court abstaining, another lone district judge took a
stand. In In re National Security Agency Telecommunications Records
Litigation, Chief Judge Vaughn Walker in the Northern District of
California considered a case brought by an Islamic charity that claims
to have been a subject of the surveillance program. In a 56-page
opinion he held that Congress's enactment of the Foreign Intelligence
Surveillance Act of 1978, FISA, had constrained the President's
inherent authority--if any--to conduct warrantless wiretapping:
``Congress appears clearly to have intended to--and did--establish the
exclusive means for foreign intelligence surveillance activities to be
conducted. Whatever power the executive may otherwise have had in this
regard, FISA limits the power of the executive branch to conduct such
activities.'' Nevertheless, this finding is preliminary.
Whatever Chief Judge Walker ultimately decides, my bill will permit
any party who is disaffected by a subsequent decision in the Ninth
Circuit to have the case heard by the Supreme Court by eliminating
discretionary review. Under my bill, the Supreme Court would also have
to review appeals concerning the constitutionality or legality of: the
Terrorist Surveillance Program writ large; the statutory immunity for
telecommunications providers created by Title II of the FISA Amendments
Act of 2008; and any other intelligence activity involving
communications that was authorized by the President during the period
beginning on September 11, 2001, and ending at such time as the
activity was approved by a Federal court.
Relying on similar precedents, the bill requires the High Court to
expedite its consideration of such cases. The bill, however, is limited
to circumstances where the Court has not previously decided the
question at issue. Thus, it does not create a permanent right of review
for all similarly situated parties, but it does require the Court to
take up the matter in the first instance.
Congress clearly has the power to require appellate review by the
Supreme Court under Article III, Section 2 of the Constitution, and it
has exercised this prerogative. For example, 28 U.S.C. Sec. 3904
provides for direct appeal to the Supreme Court of decisions ``upon the
constitutionality'' of the Congressional Accountability Act if the
Court ``has not previously ruled on the question'' and requires the
Court to ``expedite the appeal.'' Congress used nearly identical
language to provide for direct appeal and expedited Supreme Court
review of the constitutionality of a ban on flag burning in 18 U.S.C.
Sec. 700.
I propose similar action here. It is hard to conceive of a better
case to have finally decided in the Supreme Court than one which
challenges the legality of warrantless wiretapping--or the
constitutionality of the retroactive statutory defenses passed by
Congress last year.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 877
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL
ACTIONS.
Chapter 81 of title 28, United States Code, is amended by
inserting at the end the following:
``SEC. 1260. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL
ACTIONS CONCERNING SURVEILLANCE ACTIVITIES.
``(a) In General.--The Supreme Court shall, if it has not
previously ruled on the question, accept jurisdiction over
any appeal of an interlocutory or final judgment, decree, or
order of a court of appeals in any case challenging the
legality or constitutionality of--
``(1) the President's Surveillance Program, commonly known
as the Terrorist Surveillance Program, as defined in section
301(a)(3) of the Foreign Intelligence Surveillance Act of
1978 Amendments Act of 2008 (Public Law 110-261);
``(2) the statutory defenses established in Section
802(a)(4) of the Foreign Intelligence Surveillance Act of
1978, as amended by title II of the Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2008 (Public Law
110-261); or
``(3) any intelligence activity involving communications
that was authorized by the President during the period
beginning on September 11, 2001, and ending at such time as
the activity was approved by a Federal court.
``(b) Expedited Consideration.--The Supreme Court shall
advance on the docket any appeal referred to in subsection
(a), and expedite the appeal to the greatest extent
possible.''.
SEC. 2. CLERICAL AMENDMENT.
The chapter analysis for chapter 81 of title 28, United
States Code, is amended by inserting at the end the
following:
``Sec. 1260. Mandatory supreme court review of certain civil actions
concerning surveillance activities.''.
______
