[Congressional Record Volume 147, Number 131 (Wednesday, October 3, 2001)]
[Senate]
[Page S10144]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       THE ANTITERRORISM PACKAGE

  Mr. SPECTER. Madam President, I have sought recognition to express my 
concern about what is happening on the antiterrorism package. Two weeks 
ago Attorney General John Ashcroft met with Members in an adjacent 
room, 211, down the hall, and asked for legislation that week. I 
responded we could not do it instantly but we could do it briefly.
  Since that time, we have only had one hearing in the Senate Judiciary 
Committee, a week ago yesterday, where we heard from Attorney General 
Ashcroft for about 75 minutes. Most of the members of the committee did 
not have a chance to question him. I did.
  We really have a serious issue of prompt action by the Congress. But 
it has to be deliberative. We have to be sure of what is in the 
legislation. When Attorney General Ashcroft testified, he said on the 
detention of aliens, the only ones they wanted to detain were those who 
were subject to deportation proceedings. My response to that was that I 
thought they had the authority now, but the bill was much broader. It 
authorized detention of aliens without any showing of cause at the 
discretion of the Attorney General, and we could give the Attorney 
General and law enforcement the additional authority. But it had to be 
carefully drawn.
  Similarly, on the use of electronic surveillance, the Attorney 
General said he wanted to have the availability of electronic 
surveillance on content only on a showing of probable cause, but the 
amendments to the Foreign Intelligence Surveillance Act were broader.
  Here again, I think we can give the Department of Justice and law 
enforcement what they need, but we have to carefully craft the bill. We 
have not had any hearings since. There is a meeting scheduled later 
today with all Republican Senators, with our ranking member, Senator 
Hatch, to have what I understand will be compromise legislation which 
has been worked out. But the difficulty is that the Supreme Court of 
the United States has, in a series of decisions, struck down acts of 
Congress when there has been an insufficient record showing a 
deliberative process and showing reasons for why the Congress has done 
what the legislation seeks to accomplish. In the area of law 
enforcement and civil liberties, there is, perhaps, more of a balancing 
test than in any other field.
  What we need to do is to have a record. If the Department of Justice 
can show that there is a need for electronic surveillance which more 
closely approximates the standards of the Foreign Intelligence 
Surveillance Act than the traditional standards of probable cause--a 
really pressing need with factual matters--that is something which the 
Judiciary Committee ought to consider. If there are pressing matters 
about the detention of aliens--I understand the House has a bill which 
would allow for detention for 7 days, which is a protracted period of 
time--there has to be a showing as to what is involved. That can be 
accomplished only through the hearing process. Perhaps we need closed 
hearings. But I am very concerned, and I have communicated my concern 
that something may happen in the intervening time which might be 
attributable to our failure to act.
  I hope we will let the Judiciary Committee undertake its activities. 
We have a lot of seasoned people there who have prosecutorial and 
governmental experience, who have things to add to really understand 
exactly what the specific needs are and to structure legislation which 
will meet those specific needs and which, under a balancing test that 
the courts have imposed, will survive constitutional muster.
  But we are on notice and we are on warning that the Court will strike 
down legislation if there is not a sufficient deliberative record as to 
why the legislation is needed.
  It was my hope that we could have had a markup early this week, and 
we still could with dispatch. There is no reason that the Senate can't 
have hearings on Fridays, or on Saturdays, when we are not going to be 
in session, to have markups and sit down with Department of Justice 
people to get the details as what they need perhaps in closed session 
and move ahead to get this legislation completed.
  I think we can accommodate the interests of law enforcement, a field 
in which I have had some experience, and also the civil liberties and 
constitutional rights, a field again that I have had some familiarity 
with.
  I thank my distinguished colleague from New Hampshire for letting me 
speak at this time.

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