[Congressional Record Volume 154, Number 110 (Monday, July 7, 2008)]
[Senate]
[Pages S6348-S6351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            WORKING TOGETHER

  Mr. SPECTER. Mr. President, I was pleased to hear some of the 
comments by our leaders earlier on a conciliatory note after the 
fireworks a week ago Thursday before we adjourned. The fireworks over 
the Medicare bill I think vastly overshadowed the fireworks a week 
later on the Fourth of July. I am glad to hear them talk about working 
together.
  If there is one point of virtual unanimity in America today, it is 
the

[[Page S6349]]

American people are sick and tired of the partisan bickering in 
Washington, DC. When they talk about coming together on energy and the 
high prices of gasoline, every Member has to hear it everywhere because 
that is such a prominent item of great pain and suffering in America 
today: the high cost of gasoline and the high cost of heating oil when 
winter comes, especially for the seniors who have the choice of either 
heating or eating. I believe there are some things that can be done in 
the short term, difficult as so many of the items are. I have spoken 
before about the issue and do not intend to speak at length today. But 
I am encouraged by what Senator Reid and Senator McConnell have had to 
say.
  One item which could be acted upon immediately, which could have some 
immediate impact, is the effort Senator Kohl and I have made for many 
years now to take away the antitrust exemption for OPEC oil-producing 
nations. Right now, they have a sovereign immunity. But there is 
nothing sovereign about what goes on in fixing the prices of oil in the 
international market--fixing the prices by having the OPEC countries 
get into a small room, lower production and increase the cost because 
the supply is lower and the demand is greater.
  While we certainly ought to undertake conservation measures, as we 
finally did, raising the miles per gallon last year to 35, and with 
many other items we could make on conservation, we could have a 
significant and short-term impact upon supply by taking away the 
antitrust exemption, which we can do under the case law. It is a 
commercial transaction. It passed the Senate by a big vote. More than 
70 Senators voted for it in the past. It is on the agenda. It has been 
voted out of the Judiciary Committee. The OPEC countries say they 
shouldn't be subject to the antitrust laws. Well, they find it very 
profitable not to be. They say it wouldn't do any good because OPEC is 
paying now for all of the production it can undertake, but 3 weeks ago, 
Saudi Arabia made an announcement that they were going to increase 
production. The speculation behind that announcement was that they were 
concerned about measures which were being undertaken by the United 
States and other countries to respond. In the long term, their 
interests might be best off if they increase production. Well, I think 
if they were subjected to the antitrust laws, we would put them to the 
test.

  There is no earthly reason they should not be subjected to our 
antitrust laws. That has not moved forward because of some concerns 
that there ought to be some companion legislation on drilling. Well, 
that is something which ought to be considered--not carte blanche and 
not necessarily in broad, sweeping terms but on a case-by-case basis.
  I have a very strong record in my tenure in the Senate on 
environmental protection, but if you take ANWR, I was convinced 20 
years ago when I made a trip there that ANWR could be the subject of 
very substantial exploration with adequate concern for environmental 
protection. ANWR has a footprint about as big as Philadelphia 
International Airport, and there are ways of drilling down with a 
single hole proliferating underground. I saw the caribou there. I saw 
the other drilling in the area. I saw how the caribou and other 
environmental concerns could be protected. Too often, when the matter 
has come up on the floor--and it has come up on many occasions--we 
can't get to the 60-vote threshold; 56, 57, something in that range. It 
becomes a battle by competing forces who are dug in and entrenched.
  I think it is an item the Congress could consider in some greater 
detail and on a selective basis move in the immediate future to try to 
increase our own capacity. You don't have to go completely on offshore 
or completely on shale or completely in any direction, but some studied 
analysis and some careful consideration, trying to leave the entrenched 
battle lines which have characterized this body and the House on this 
issue for so long, would be very salutary and I think could lead to a 
better result. At least that is one man's opinion, having been there, 
having looked at it, and having heard people on both sides over the 
past two decades.
  The subject of Medicare is very much a lead topic. It is the lead 
story in the New York Times this morning, and it is the lead story all 
across America. It would be my hope that the leaders could yet come to 
a resolution of the issue on some sensible terms without having a 
``gotcha'' vote; without moving forward, as the majority leader did a 
week ago Thursday, on predicting how many Democratic Senators there 
would be and making it a test case and having a political cost on the 
vote, but to try to work it through to get legislation finished so that 
doctors do not get a 10.6-percent cut. I believe there is widespread 
support in both bodies not to have that cut go into effect and to 
alleviate the concerns of seniors that doctors will stop taking 
Medicare patients because of that cut, which is so excessive--
legislation which has been pending for a long time. Each year, the cut 
comes up, and each year, the cut is rescinded.
  The core problem on this issue really arises from the difficulties 
caused by the procedure known as filling the tree. We have seen, in the 
course of the past two decades, a new procedure adopted where the 
majority leader utilizes his primacy--that means his ability to get 
recognition--to offer an amendment and then to offer a second amendment 
before any other Senator has a chance to offer an amendment, and then 
no other Senator can offer an amendment.
  When the Medicare bill first came up 2 or 3 weeks ago, I talked to 
Senator Reid and said that I would support cloture if the procedures of 
the Senate were honored and an amendment could be offered. He said he 
would do that. I voted for cloture.
  When the bill came up a week ago Thursday, there was no opportunity 
to offer an amendment because the House of Representatives had passed a 
Medicare bill and left town. They do that from time to time. They pass 
a bill, send it over, and leave town. They present an ultimatum to the 
Senate: Take it or leave it--a rather convenient way to have a de facto 
amendment to the U.S. Constitution.
  The Constitution provides for a bicameral legislature. For those who 
don't know that highfalutin word, that means there are two bodies. All 
grade school children know you have to pass a bill in the House and a 
bill in the Senate, and then it goes to the President for signature or 
veto. But when the House leaves town, suddenly it becomes a unicameral 
legislature--a constitutional amendment, all in one fell swoop by 
buying airplane and railway tickets. Well, I am not prepared to accept 
that kind of an edict from the House of Representatives or the majority 
leader or anybody, and it would seem to me that processes were being 
shortcut. It took the unusual step of writing to the President and 
urging him to use his constitutional authority to recall the House of 
Representatives into session during the week of July 4th. I didn't have 
much expectation that it would be done, but the House ought not to 
leave town and leave us without recourse to offer amendments, which is 
our right under the Constitution, and to send it back to the House for 
their concurrence, and that could be done yet. It is my hope we will 
move in that direction.
  This business of filling the tree is of recent origin. Going back to 
the 99th Congress in 1985 and 1986, Senator Dole used it five times. 
Senator Byrd used it in the next Congress three times. In the next 
Congress, Senator Mitchell didn't use it at all. Then, in the 103rd, 
for 1993 and 1994, Senator Mitchell used it nine times. Then Senator 
Lott picked it up a few times in the intervening years until the 106th 
Congress, when he used it nine times. Then Senator Frist used it nine 
times in the 109th Congress. So far, Senator Reid has used it 12 times. 
That process precludes Senators from offering amendments. That is not 
the way the Senate has been designed to run.
  I was concerned about this and made an extensive statement on global 
warming and in February of last year, some 18 months ago, introduced a 
rule change and wrote to the chairperson of the Rules Committee and the 
ranking Republican urging that that rule be taken up so that the Senate 
can work its will on preserving the right of Senators to offer 
amendments. Were that to be done, then when the effort was made on 
cloture, it wouldn't be summarily dismissed if there was a fair chance 
to offer amendments.
  There has been a major development on the very important issues 
relating to warrantless wiretapping in an opinion issued by the Chief 
Judge of the

[[Page S6350]]

U.S. district court in San Francisco on the constitutionality of the 
Foreign Intelligence Act. The case handed down last Wednesday--some 56 
pages, very complicated, very important--is on the issues which are 
being raised in the debate which we are going to have later this week 
on FISA. This is the same judge who handed down another very extensive 
opinion on the litigation involving the 40 telephone companies that are 
being sued in his court, issued on July 20, 2006, some 29 pages. This 
case is now under appeal under the state secrets doctrine.
  Because of their tremendous impact on the issues which we are going 
to be considering, interested parties may review Chief Judge Walker's 
opinion in Al-Haramain Islamic Foundation v. Bush online at: http://
www.cand.us
courts.gov/cand/judges.nsf/61fffe74f99516
d088256d480060b72d/35760d9e4cc9207588257
47a0082f983/$FILE/Al_Haramain%
20Order%20Following %20Remand%207-2-08.pdf and his decision in Hepting 
v. AT&T, located at 439 F.Supp. 2d 974 (N.D. Cal. 2006).
  Mr. SPECTER. The core of Chief Judge Walker's opinion is a very 
important holding, and that is essentially that the Foreign 
Intelligence Surveillance Act is the exclusive way to have wiretapping 
and that the President exceeded his constitutional authority in putting 
into effect the terrorist surveillance program.
  This is what Chief Judge Walker had to say:

       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.

  The Supreme Court of the United States candidly ducked the issue in 
the case coming out of Detroit. The Federal judge there had held the 
terrorist surveillance program unconstitutional. The Sixth Circuit 
reversed on the ground of standing, but, as demonstrated from the 
scholarly dissenting opinion on the standing issue, there was ample 
grounds to have granted standing. It is really a very flexible 
doctrine.
  Then the Supreme Court of the United States denied certiorari and in 
effect ducked the case, really avoiding deciding the most important 
constitutional confrontation of our era on the President's authority 
under article II and the congressional authority under article I. But 
now the fat is in the fire again, as of last Wednesday, with Judge 
Vaughn's opinion.
  Then you come down to the issue of standing, which is still to be 
determined, but this is what Judge Walker had to say about that:

       Both plaintiff amici hint at the proper showing when they 
     refer to ``independent evidence disclosing that plaintiffs 
     have been surveilled'' and a ``rich load of disclosure to 
     support their claims'' in various of the multidistrict 
     litigation cases.

  So that when you have Judge Walker, who has the consolidation of the 
40 cases picking up this issue, there is strong--well, it is more than 
a suggestion or a hint; it is a pretty extensive statement that there 
is a rich load of disclosure to support the claims of standing.
  The business about the court stripping is always problemsome. But it 
is especially problemsome in the context of an ongoing case that is 
about to reach fruition, where such extensive consideration has been 
given and a decision may be imminent. It is very unseemly on our 
doctrine of separation of powers for the Congress to step in and grant 
retroactive immunity.
  This is especially problemsome, as I see it, because we are being 
asked to grant retroactive immunity where there has not even been an on 
the record disclosure of what we are immunizing. You have the 
allegations as contained in the litigation--the allegations of data 
mining--but you have a program where most of the Members of Congress 
have not even been briefed on it. Yet we are asked to come in and grant 
retroactive immunity.
  It is especially problemsome, as I see it, because we could maintain 
the program and still not subject the telephone companies to liability 
in a couple directions. The telephone companies have been good 
citizens. When this matter came up several months ago the first time in 
the Senate, I proposed an amendment to substitute the Federal 
Government as the party defending. The party can take over the 
litigation in the shoes of the telephone companies, with the same 
defenses, no more and no less than the telephone companies have, no 
governmental immunity, no sovereign immunity but State secret doctrine, 
if it applied. That way, you don't foreclose the courts from acting.
  There is another alternative, which is my pending amendment--
scheduled to be argued and voted upon this week. Our legislation does 
not give it to the Foreign Intelligence Surveillance Courts but to the 
district courts generally. But all there has to be is a showing that 
there was a request made in the proper form by the administration to 
the judge for carrying out this program, whatever it is. That is under 
our bill. Well, my amendment would broaden that to give the court the 
jurisdiction to decide constitutionality.
  In a sense, that has already been foreclosed by what Judge Walker 
said last Wednesday in finding the terrorist surveillance program 
unconstitutional. The Foreign Intelligence Surveillance Act of 1978 not 
only covers warrantless wiretapping, but it covers pen registers and it 
covers trap-and-trace devices. So presumably--and this is all a matter 
of presumption because we don't know exactly what the program is--it 
would cover whatever program there is at issue in this legislation.
  And then we have the amendment pending by Senator Bingaman, which I 
am working on with him collaboratively, which picks up the obligation 
of the inspectors general of the various intelligence agencies to 
review the program and then to send it back to Congress 90 days later 
to see if we will uphold it when we know something more about the 
program. Certainly, today, it qualifies as a pig in a poke. We don't 
know what it is for which we are asked to grant retroactive immunity. 
So another alternative would be the proposal that Senator Bingaman has 
introduced, which I have cosponsored, which would call for the decision 
at a time when Congress at least knows a little something about what it 
is we are voting on.
  In essence, I submit that we have come to a very serious situation 
where, in the future, historians are going to look back at the period 
from 9/11 to the present time as the greatest expansion of executive 
authority in history. The Congress has been totally ineffectual to 
restrain that. The National Security Act of 1947 requires that both 
intelligence committees be fully briefed on programs such as the 
terrorist surveillance program, which was violated by the President and 
the executive branch. Briefings were not made until piecemeal, and 
finally they needed the confirmation of General Hayden. It has been 
longstanding tradition for the executive branch to tell the chairman of 
the Judiciary Committee and the ranking member about this. It came as a 
surprise to me by reading the New York Times one Friday in December of 
2005, when we were arguing the PATRIOT Act on the final day and 
expected to pass it, and the legislation blew up in our faces when that 
was disclosed. Some Senators said they intended to vote for the PATRIOT 
Act but didn't do so when confronted with the secret program that the 
administration had not disclosed. But the administration violated the 
statute and had no recourse. The administration violated the Foreign 
Intelligence Surveillance Act and could not get a review by the Supreme 
Court of the United States in the case coming out of Detroit and the 
Sixth Circuit.
  Then you had the hesitancy of the Supreme Court ruling on habeas 
corpus. In Rasul, Justice Stevens's opinion goes at great length to 
trace the constitutional common-law basis for the right of a writ of 
habeas corpus, starting with John at Runnymede, which was 1215. There 
was an alternative analysis of the statute on habeas corpus. The case 
gets to the District of Columbia Circuit Court, and they ignore the 
citations of constitutional authority and say: Well, Congress changed 
the statute and that governs, flying in the face of a Supreme Court 
direction and order from a superior court. And then the Supreme Court 
danced around Boumediene for a long time. First, cert was denied, and 
then in an unusual petition for reargument, taking five votes, granted 
cert because of the ineffective and insufficient procedures of the 
combat status review board.

[[Page S6351]]

  So you have a long history of ineptitude--total ineptitude--by the 
Congress and more than ineptitude by the Congress, complicity in 
passing the Military Commissions Act and facilitating a free hand by 
the administration in changing the legislation on habeas corpus. That 
should not have had an impact on the ultimate result because habeas 
corpus is a constitutional right, and the Supreme Court finally got 
around to saying so when confronted with the totally insufficient 
procedures on the combat status review board. So we have another chance 
when the FISA legislation comes up. We have a lot of guidance, from 
what Chief Judge Walker has had to say.

  It is understandable that the Congress continues to support law 
enforcement powers because of the continuing terrorist threat. No one 
wants to be blamed for another 9/11. My own briefings on the telephone 
companies' cooperation with the Government--and I speak in terms only 
of reports and allegations because it is not a matter of record--my own 
briefings on the telephone companies' cooperation with the Government 
have convinced me of the program's value, so that I voted for it, even 
though my amendment to substitute the Government for the telephone 
companies was defeated in the Senate's February vote. Similarly, I am 
prepared to support it again as a last resort, even if it cannot be 
improved by providing for judicial review.
  However, since Congress has been so ineffective in providing a check 
and balance, I will fight hard this week--starting today with this 
speech--to secure passage of an amendment to keep the courts open. When 
the stakes are high, as they invariably are when Congress addresses 
civil liberties and national security, Members frequently must choose 
between the lesser of two imperfect options. Unfortunately, we too 
often back ourselves into these corners by deferring legislation until 
there is a looming deadline or a congressional recess. Perhaps that is 
why so many of my colleagues have resigned themselves to accept the 
current bill without seeking to improve it.
  I ask my colleagues to look to Judge Walker's opinions as guidance as 
to what we ought to be doing to back him up on what he has done, in a 
courageous way, in taking the bull by the horns and declaring the 
terrorist surveillance program unconstitutional and setting the path 
for standing.
  Although I am prepared to stomach the bill if I must, I am not ready 
to concede that the debate is over. Contrary to the conventional 
wisdom, I don't believe it is too late to make this bill better. 
Perhaps the Fourth of July holiday will inspire the Senate to exercise 
its independence from the executive branch now that we have returned to 
Washington.
  I thank the Chair and my distinguished colleague from North Dakota 
for his patience--if he has any. Senator Dorgan customarily does.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from North Dakota is 
recognized.
  Mr. DORGAN. Mr. President, I wish to speak in morning business, and I 
ask unanimous consent to use the remaining time in morning business.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.

                          ____________________