[Congressional Record Volume 147, Number 135 (Wednesday, October 10, 2001)]
[Senate]
[Pages S10427-S10429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 EXPANSION OF LAW ENFORCEMENT ACTIVITY

  Mr. SPECTER. Mr. President, I will further discuss briefly the 
terrorism legislation which we expect to come to the floor later today. 
I have a reservation of some 30 minutes on the unanimous consent 
agreement which will be propounded later by the majority leader, but I 
think a few comments are in order at this time.
  I have no doubt that there is a need for expanded law enforcement 
authority. That has been demonstrated by the fact that offenses of 
terrorism do not have the availability of electronics surveillance 
which other offenses can employ. This is demonstrated by the fact that 
there have been significant failures under the Foreign Intelligence 
Surveillance Act and that the Attorney General has represented a need 
to have additional detention for aliens who are subject to deportation.

[[Page S10428]]

  When the Senate Judiciary Committee held a hearing two weeks ago 
yesterday, I questioned Attorney General John Ashcroft on the record 
about the scope of the Anti-Terrorism bill. The bill did not delineate 
the Attorney General's needs for law enforcement. Attorney General 
Ashcroft commented that what the Department of Justice had in mind was 
the detention of aliens who were subject to deportation. It may well be 
that there is existing authority for the Attorney General to accomplish 
that, but if additional authority is necessary, then I think the 
Congress is prepared to give that additional authority. However, the 
bill as drafted, did not so delineate the detention to those subject to 
deportation.
  Attorney General Ashcroft further made representations about the need 
to change the Foreign Intelligence Surveillance Act. He said before 
looking to use content there would be a statement of probable cause. 
Again, in reviewing the specific legislation, that was not present in 
the bill, so there had to be a revision of the text of the bill.
  The Senate Judiciary Committee had only an hour and 20 minutes of 
hearings, two weeks ago yesterday. The Constitutional Law Subcommittee 
had hearings last Thursday morning. I have grave concerns that there 
has not been sufficient deliberation that would establish a record and 
withstand a constitutional challenge in the Supreme Court of the United 
States. I will expand upon this point during the course of the 
consideration of the bill later today or tomorrow morning and will cite 
the Supreme Court decisions which have struck down acts of Congress 
where a sufficient showing of the deliberative process has been 
lacking.
  In my judgment, that has been an overextension, a usurpation, by the 
Supreme Court of the United States of the separation of the powers. For 
the Supreme Court of the United States, in effect, to tell Congress 
that Congress has not ``thought through'' legislation that is part of 
the congressional function, that legislation violates a specific term 
or provision of the Constitution, that it is vague and ambiguous in 
violation of the due process clause of the 14th Amendment, or that 
Congress has run afoul of some other constitutional provision, then so 
be it. However, it seems to me an extraordinary stretch of judicial 
authority for the Supreme Court to say that the Congress has not been 
sufficiently deliberative, and that only the Supreme Court of the 
United States can gauge what is sufficiency on the deliberative 
process. That is the case law.
  In the absence of hearings and in the absence of a record, there is a 
concern on my part that the legislation will withstand constitutional 
muster. There is no doubt there is a need to act with dispatch.
  In my judgment, and I have communicated this to the Chairman and 
Ranking Member of the Senate Judiciary Committee, we could have held a 
hearing three weeks ago. We could have worked on a Friday or Saturday. 
That is not beyond the workload of the Senate. Perhaps, we could have 
held closed sessions on confidential material. Also, we could have 
marked up the bill, undergoing the usual deliberative process--the 
Senate Judiciary Committee works on bills of much lesser importance--
and then have had it reported to the floor. Instead, the bill lay 
unproduced and held at the desk for action under Rule 14 without that 
customary committee hearing process, committee deliberation, and 
committee markup in executive session.
  I thought, in the absence of any other Senator in the Chamber, that 
it would be appropriate to make a few comments in that regard at this 
time.
  But there is no doubt that there is a very heavy overhang on 
Washington, DC, at the present time as a result of the September 11 
terrorist attacks. That very heavy overhang really exists, as I see it, 
across the country. I felt this when Senator Santorum and I went to 
Somerset County, Pennsylvania on September 14, 3 days after the 
September 11 attack. Although there had been no casualties on the 
ground, 40 Americans had lost their lives in that ill-fated plane, and 
there was a great urgency in hearing from Washington, D.C. alongside a 
great sense of concern.
  Earlier today I went to Pennsylvania to meet with the Pennsylvania 
Business Roundtable. Again, there is a sense in the air of a heavy 
cloud over America, which we have to work through. I am confident that 
we will. I believe the Bush administration has done an excellent job in 
organizing an international coalition and not acting precipitously, but 
rather, acting very carefully. I believe Osama bin Laden will be 
brought to justice.
  In the interim, as we look through the kinds of problems which law 
enforcement faces, I think it is important for Congress to have acted 
with dispatch--really even earlier than that. However, that could be 
done only with appropriate regard for constitutional rights. We can 
have deliberation, with hearings and analysis, get the job done for law 
enforcement, and protect constitutional rights at the same time. As we 
work through the very important issue of homeland security and the 
issue of reorganization of the intelligence community, I welcome 
comments from my colleagues on the draft legislation which I am 
submitting into the Record. It is going to require collaboration from 
many Members.
  As I have said, Congressman Thornberry has already introduced 
legislation in the House; Senator Lieberman and Senator Robert Graham 
of Florida are working on it, as am I. I think from this we can 
structure some legislative changes which can better protect America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I was not able to be here prior to the 
statement of the distinguished Senator from Pennsylvania. I would note 
both on the Intelligence Committee and on the Judiciary Committee his 
has been one of the most consistent and most clear voices on these 
issues. In fact, one of the things that disappointed me when we brought 
up the terrorism bill is the Attorney General was able to stay there 
only for part of the hearing. I was glad he was able to stay long 
enough for what was intended to be the first round of questioning, 
questioning from the senior Senator from Pennsylvania. He has a way of 
getting to the crux of the matter. I would have liked to have gone 
further on that.
  These are serious matters. I get concerned when we have to rush 
things through without the kind of deliberation and scrutiny they 
deserve. The Senator from Pennsylvania has raised the obvious fact of 
making, for constitutional purposes, a record demonstrating legislative 
intent. Among all the suggestions he made, this is one to which we 
should pay the most attention. Sometimes as we rush--I say that as one 
who wants to get a terrorism bill up here and voted on, and hoping the 
House can do the same and we can get on to conference. But, frankly, we 
can spend a lot of time on this floor sometimes debating matters that 
are of minuscule moment and we would be better off if we did the kind 
of long-range thinking that he and others have discussed.
  I think in the report, our former colleagues, Senator Rudman of New 
Hampshire and Senator Hart of Colorado, after September 11, after the 
fact, made everybody come and dust them off and say a lot of what 
happened was predicted here, and how we respond to it.
  I worry sometimes also we think by passing a new law we will protect 
ourselves. We will go back, the Senate will go back--and I am sure the 
House will, too--and review the files of the Department of Justice, the 
FBI, and others for information that was there and perhaps not looked 
at nor acted upon prior to September 11. That is not to find scapegoats 
but to say: Was this a mistake? Had it been done differently would we 
have stopped this terrorist attack?
  Sometimes we close the barn door after the horse has been stolen. We 
spend billions of dollars around this country so you cannot drive a car 
bomb into the lobby of buildings. In this case, the bomb came through 
the 80th floor of the building.
  We should look at this matter very carefully, find out where mistakes 
were made prior to the 11th--and there were--find out what is needed, 
and I suspect it will not be just new laws but new ways of doing things 
to take care of it.
  On the question of better use of computers, certainly the better use 
of translators, if you have after the fact

[[Page S10429]]

the Attorney General and the FBI Director having to go on public 
television saying, please, we need some people and we will pay $35 or 
$40 an hour to translate Arabic material or whatever other languages, 
somebody has to ask the question: Why weren't you doing that before?
  There are so many things we have to do. But I hope people listen to 
the Senator from Pennsylvania. I intend to. I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent the order for the 
quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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