[Congressional Record Volume 152, Number 66 (Wednesday, May 24, 2006)]
[Senate]
[Page S5121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself and Mrs. Feinstein):
  S. 3001. A bill to ensure that all electronic surveillance of United 
States persons for foreign intelligence purposes is conducted pursuant 
to individualized court-issued orders, to streamline the procedures of 
the Foreign Intelligence Surveillance Act of 1978, and for other 
purposes; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition to introduce the 
Foreign Intelligence Surveillance Improvement and Enhancement Act of 
2006.
  First, I would like to thank Senator Feinstein and her staff for 
their work on what I believe is an excellent and much needed proposal.
  No one disputes that preserving our homeland must be our first 
priority. Without that, every other goal falls away. And no one can 
dispute that the enemy we face today is an enemy beyond negotiation. It 
is an enemy that believes it is on a mission from God to establish a 
worldwide theocracy and destroy all those who preach tolerance of other 
ideas. It is an enemy that regards mercy as a moral failing, and 
proudly plays videotapes of its followers beheading innocent civilians.
  At the same time, no one disputes that we must, in fighting to 
preserve America, ensure that we protect what is uniquely American--our 
way of life, our principles, and our belief in liberty. Throughout our 
history, we have balanced the need to protect our Nation with the need 
to preserve our freedom.
  No one disputes that we must continue to achieve both of these ends. 
The question is how to do so.
  I believe that the Foreign Intelligence Surveillance Improvement and 
Enhancement Act goes a long way to answering this question. It is a 
responsible bill that establishes a workable framework for the future.
  This bill eliminates some artificial and outdated constraints in 
FISA:
  It grants the executive branch 7 days, instead of 3 days, for seeking 
an emergency order--a change that the FISA judges who testified before 
the Judiciary Committee advocated; it cuts through redtape by 
confirming that applications for FISA orders may be made by delegees of 
the Attorney General, such as the Deputy Attorney General and Assistant 
Attorney General of the National Security; it creates new emergency 
provisions, allowing extended periods of surveillance in the event our 
Nation is once again attacked; and it allocates additional personnel to 
DOJ to prepare applications for FISA orders in a prompt and timely 
manner.
  This bill also ensures that our civil liberties are protected by 
strengthening oversight of the executive branch:
  It eliminates the current ambiguity in FISA and the National Security 
Act of 1947, and makes it clear the executive branch must inform all 
members of the Senate and House Intelligence Committees on all 
electronic surveillance programs; it requires the executive branch to 
submit an additional report to the congressional Intelligence 
Committees listing any recommendations for legislative or 
administrative improvements in FISA, so that we in Congress can update 
FISA as needed; it establishes rigorous reporting requirements for the 
exercise of emergency surveillance powers; and it establishes a 
document management system to ensure that information concerning 
electronic surveillance programs is readily available for review by the 
Foreign Intelligence Surveillance Court and Congress, to allow for 
short term decisions and long-term accountability.
  I do have one concern over the bill, a concern over 
constitutionality. The bill states that the only way the President may 
carry out electronic surveillance is through the procedures outlined in 
FISA or the Federal Criminal Code. During the four hearings I held in 
the Senate Judiciary Committee, numerous scholars and five FISA judges 
called this provision into question. They testified that the President 
has certain inherent powers that we in Congress cannot take away. They 
explained that to the extent a bill purports to override the 
President's inherent powers, and tell the President that he may not use 
them, the bill might be unconstitutional.
  I think this is precisely the type of complex and weighty concern 
that we should work out in the Judiciary Committee, through study, 
analysis, and discussion. And I look forward to having those 
discussions with Senator Feinstein and the other members of the 
committee.
  I urge my colleagues to support the Foreign Intelligence Surveillance 
Improvement and Enhancement Act of 2006.
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