[Congressional Record Volume 152, Number 128 (Tuesday, November 14, 2006)]
[Senate]
[Pages S10926-S10928]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 4051. A bill to provide sufficient resources to permit electronic 
surveillance of United States persons for foreign intelligence purposes 
to be conducted pursuant to individualized court-based orders for calls 
originating in the United States, to provide additional resources to 
enhance oversight and streamline the procedures of the Foreign 
Intelligence Surveillance Act of 1978, to ensure review of the 
Terrorist Surveillance Program by the United States Supreme Court, and 
for other purposes; read the first time.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation which I have captioned as the ``Foreign Intelligence 
Surveillance Oversight and Resource Enactment Act of 2006.'' This is a 
modification of legislation which had been introduced by the Senator 
from California, Mrs. Feinstein, and myself and passed out of the 
Judiciary Committee.
  If it is in accordance with the rules, I ask that this bill be held 
at the desk.
  The purpose of this legislation is to provide for oversight on the 
administration's electronic surveillance program which has been in 
effect for many years and which was publicly disclosed in mid-December 
last year. We now are at a state where the provisions of earlier 
legislation which I introduced, which would call for judicial review by 
the Foreign Intelligence Surveillance Court, are no longer necessary. 
Events have overtaken the situation, with litigation having been 
started in a number of district courts, and a decision has come out of 
the U.S. district court in Detroit. The issue is now on appeal to the 
Sixth Circuit, and there is no longer any need to provide for a 
referral to the Foreign Intelligence Surveillance Court because the 
matter is now in litigation and will be carried through on the 
appellate process.
  The legislation which I am introducing tracks the Feinstein-Specter 
bill in that it provides additional resources to the administration. It 
expands the time when the administration can get approval for an 
electronic surveillance that has already been accomplished. With these 
additional resources, I am advised that the NSA will be in a position 
to have individual warrants for all calls which originate in the United 
States and go overseas. The bill does not touch the calls which 
originate overseas and come through checkpoints or transmission in the 
United States and go back overseas, where both the point of origin and 
the point of conclusion is overseas. And, we do not deal with calls 
which originate overseas and come into the United States.
  The President has contended that notwithstanding the provisions of 
the Foreign Intelligence Surveillance Act that it is the exclusive way 
to get a wiretap warrant, he has article II power. And, there will be a 
test of that in the court system, which is now underway. That test will 
involve what the courts have said is the balancing test: the invasion 
of privacy versus the value for law enforcement and for national 
security. So that as to calls to repeat--when they originate overseas 
and come into the United States, that will be the issue which will 
remain to be tested.
  This proposal does not deal with the existing language that the 
Foreign Intelligence Surveillance Act is the exclusive remedy, nor does 
it deal with any assertion about the article II power of the President.

[[Page S10927]]

  It has been my view, expressed on the floor on a number of occasions, 
that the article II power is what it is, congressional power is what it 
is, and if there is genuine article II power, then it supersedes an act 
of Congress because the Constitution trumps an act of Congress. This 
legislation does not deal with those issues which had created what I 
thought was a needless controversy.
  The bill further provides that there will be review by the Supreme 
Court of the United States. I think there doubtless would be review by 
the Supreme Court as a matter of course, but in order not to take any 
chance on that, Congress has the authority to mandate review with the 
Supreme Court, and this bill does that.
  In addition, the legislation provides for expedited review so that 
there will be a judicial determination as to the constitutionality of 
what the President has done with respect to the calls originating 
overseas and ending in the United States. I think this bill is a 
significant advance in protecting civil liberties by having 
individualized warrants on calls which originate in the United States 
and which go overseas.
  We have had this electronic surveillance in existence for a long 
time. The effort which I have made has been to have it subjected to 
judicial review, and it is my hope that this stripped-down legislation, 
which does enhance civil liberties by providing for individual warrants 
on calls originating in the United States and expedited review in the 
Federal courts and expedited review by the Supreme Court, would be 
acceptable.
  We have time yet in this session this year to legislate on this 
important subject.
  Mrs. FEINSTEIN. Mr. President, will the Senator yield for a question?
  Mr. SPECTER. I yield.
  Mrs. FEINSTEIN. Through the Chair.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I was trying, as the Senator from 
Pennsylvania spoke, to figure out exactly what bill it is he is 
speaking of. I gather this is his bill, not our bill, on which he is 
adding some of our bill's provisions, but he leaves out the critical 
part, which is reinforcing the exclusive authority of FISA; is that 
correct?
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the exclusive authority of FISA remains. 
This bill does not touch that. FISA is now the law of the land, and 
FISA says that it is the exclusive remedy for wiretapping. This 
legislation which I am introducing does not alter that, so it remains 
as provided in FISA that the Foreign Intelligence Surveillance Act is 
the exclusive remedy for wiretapping.
  Mrs. FEINSTEIN. If I may, a second question: Will this bill allow the 
President to use his plenary authority to wiretap outside of FISA, 
first, and secondly, will it allow for program authority for wiretaps?
  Mr. SPECTER. It does not deal with program authority at all. That was 
in the original legislation that I introduced as a way of getting the 
Foreign Intelligence Surveillance Court to review the program. But this 
does not deal with that, and it does not give the President any 
enhanced authority at all to conduct warrantless wiretaps. The bill 
doesn't deal with that.
  Whatever authority the President has under article II, he has. What 
this bill does is submit for expedited review by the Supreme Court a 
determination as to whether the President has article II power to have 
a warrantless wiretap with a call that originates overseas and ends in 
the United States.
  Mrs. FEINSTEIN. Again, through the Chair, if the Senator will put up 
with this for a moment more, is that to handle the switching issue, or 
would this apply to all calls coming in from outside the United States 
are exempt?
  Mr. SPECTER. To repeat, the bill I am introducing does not touch that 
point. The bill I am introducing leaves the status quo on that point, 
and that is where some contend that it is illegal to have a wiretap 
where the call originates outside the United States and comes inside. 
The contention is made that it's governed by the Foreign Intelligence 
Surveillance Act and is, therefore, illegal. The President has a 
different argument. He is asserting article II power as Commander in 
Chief, and he says that his article II power, constitutional power, 
supersedes or trumps a statute. Whether he is right or wrong depends 
upon a judicial interpretation. Only the court can weigh, as the 
existing law is in this area, whether the importance of national 
security outweighs the invasion of privacy, and that determination is 
reserved for the Federal courts.
  We are now having that determination in the Detroit case, ACLU v. 
NSA, where the district judge says it is unconstitutional and the Sixth 
Circuit now has taken the case. They have issued a stay, in effect, but 
they will take up the case on the merits.
  Once the litigation is this far advanced, we are not now in the 
situation we were in last December when the Judiciary Committee, as the 
Senator from California knows, had four hearings and I had a bill to 
submit to the Foreign Intelligence Surveillance Court. That is bypassed 
now. Events have overtaken it.
  This will provide for judicial review. It is my thought--and the 
Senator from California and I have talked about this again and again 
and have worked on her bill which I supported, voted out of committee 
10 to 8 with 2 Republicans and 8 Democrats--this will expedite a 
determination as to whether all those calls originating overseas and 
coming in are or are not constitutionally tapped. And, it will help out 
with what the Senator from California has been the leader on--and that 
is to have individualized warrants for calls originating in the United 
States. That is a big advance on civil liberties if those calls are not 
tapped without a warrant.
  Mrs. FEINSTEIN. I thank the Senator. He has been a very distinguished 
chairman of the committee. This is an issue in which, as a member of 
the Intelligence Committee and Judiciary Committee, I have had an 
intense interest. The Senator from Pennsylvania recognizes that. I 
appreciate that.
  I am unsure whether this bill is for the purpose of judicial review 
of the President's article II authority--I think I understand what the 
Senator is doing. He is essentially exempting all those calls which 
come into the United States, not calls from point A to point B in the 
United States. I think that bears further discussion, but I trust no 
action will be taken on this bill in this session but that the Senator 
from Pennsylvania is submitting it as a marker for next year.
  Mr. SPECTER. Mr. President, it would be my hope that we could act on 
it this session. I say that, subject to review by the Senator from 
California and by other Members and by the House of Representatives. 
The Senator from California and I and others have thought about this 
issue long and hard. This bill is a real effort to try to accommodate 
all of the concerns the Senator from California has raised. That is to 
maintain the status of the Foreign Intelligence Surveillance Act as the 
exclusive way to wiretap. That stands.
  There is no statement about the authority of the President under 
article II, which had been objected to before. As I say, whatever the 
constitutional authority is, it is, regardless of what the bill says, 
but this bill says nothing about that. It says nothing.

  The Senator from California and I have wanted to have individualized 
warrants wherever we could get them, and now the Senator from 
California took the lead on this. She has had access to this program, 
where I have not, because she is on the Intelligence Committee. It is 
anomalous that the chairman of the Judiciary Committee would not know 
the program, but I respect the division which gives that intelligence 
to the oversight committee. But she and I both wanted to have 
individualized warrants everywhere if we could get them. And, now we 
know we can get them on calls originating in the United States if we 
add the resources that were in the legislation crafted initially by the 
Senator from California, which I joined, which passed out of committee 
and onto the floor. And it does not deal with the ones overseas into 
the United States. Whatever authority the President has on that, he is 
going to have to assert in Federal court and satisfy ultimately the 
Supreme Court that he has that article II power. My view is the sooner 
we have this determination, the better off we are.
  Mrs. FEINSTEIN. I thank the chairman. I would like to look very 
closely

[[Page S10928]]

at this bill. I am very reluctant to move right now. You have mentioned 
the case percolating up through the courts now. I am really unsure why 
passage of this bill now would achieve anything. It seems to me it 
would be better to wait and see what the court does. I would appreciate 
your response to that.
  Mr. SPECTER. Mr. President, I am glad to respond, and I thank the 
Senator from California for the question. It would achieve 
individualized review of warrants on calls originating in the United 
States, and there are a lot of them. How many there are, I don't know, 
but the NSA officials have told us that if we give them the additional 
resources, which was suggested originally by the Senator from 
California and which I concur in on the Feinstein-Specter bill, that 
they could have individualized warrants. And, I think that would be a 
big step forward on civil rights.
  Mrs. FEINSTEIN. Except what you are doing is effectively exempting, 
then, a call from outside into the United States because of the change 
in technology.
  Mr. SPECTER. Mr. President, my bill does not exempt them. My bill 
just doesn't deal with them. Some say that FISA controls them and, 
therefore, they are illegal. The President says: No, he has article II 
power. And the only way that controversy can be resolved is in a 
Federal court, which will weigh them. And the Federal court in Detroit 
weighed them and said it was unconstitutional. And the Sixth Circuit 
has said they will review it. In the meantime, the program stands. But 
as the program stands, all of these warrantless wiretaps are going on 
and on and on. And we go one step further. We make sure the Supreme 
Court will take the case. We also have power in the Congress to 
expedite the review, set a timetable to get it done faster.
  Mrs. FEINSTEIN. I will be very interested to look at the bill, and I 
thank you very much for this dialog. And this completes my questions. 
Thank you.
  Mr. SPECTER. I thank the Senator from California for the colloquy 
which has further explained the bill.

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