[Congressional Record Volume 155, Number 60 (Thursday, April 23, 2009)]
[Senate]
[Pages S4679-S4680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 877. A bill to provide for the non-discretionary Supreme Court 
review of certain civil actions relating to the legality and 
constitutionality of surveillance activities; to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation that will mandate Supreme Court review of challenges to the 
warrantless wiretapping program authorized by President Bush after 9/
11, commonly known as the Terrorist Surveillance Program or TSP.
  While the Supreme Court generally exercises discretion as to whether 
it will review a case or grant ``certiorari,'' there are precedents for 
Congress to direct Supreme Court review on constitutional issues--
including the statutes forbidding flag burning and requiring Congress 
to abide by Federal employment laws--and the gravity of this issue 
merits Congressional action.
  In August 2006, Judge Anna Diggs Taylor of the U.S. District Court 
for

[[Page S4680]]

the Eastern District of Michigan issued a 43-page opinion finding the 
TSP unconstitutional. At the time, many applauded and many others 
criticized her decision, but we have yet to see appellate review on the 
merits. Instead, in July 2007, the U.S. Court of Appeals for the 6th 
Circuit overturned the district court's decision on other grounds. By a 
2-1 vote, in ACLU v. NSA, it declined to rule on the legality of the 
program, finding that the plaintiffs lacked standing to bring the suit. 
The Supreme Court then declined to hear the case, even though the 
doctrine of standing has enough flexibility, as demonstrated by the 
dissent in the 6th Circuit, to have enabled it to take up this 
fundamental clash between Congress and the President.
  With the Supreme Court abstaining, another lone district judge took a 
stand. In In re National Security Agency Telecommunications Records 
Litigation, Chief Judge Vaughn Walker in the Northern District of 
California considered a case brought by an Islamic charity that claims 
to have been a subject of the surveillance program. In a 56-page 
opinion he held that Congress's enactment of the Foreign Intelligence 
Surveillance Act of 1978, FISA, had constrained the President's 
inherent authority--if any--to conduct warrantless wiretapping: 
``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.'' Nevertheless, this finding is preliminary.
  Whatever Chief Judge Walker ultimately decides, my bill will permit 
any party who is disaffected by a subsequent decision in the Ninth 
Circuit to have the case heard by the Supreme Court by eliminating 
discretionary review. Under my bill, the Supreme Court would also have 
to review appeals concerning the constitutionality or legality of: the 
Terrorist Surveillance Program writ large; the statutory immunity for 
telecommunications providers created by Title II of the FISA Amendments 
Act of 2008; and any other intelligence activity involving 
communications that was authorized by the President during the period 
beginning on September 11, 2001, and ending at such time as the 
activity was approved by a Federal court.
  Relying on similar precedents, the bill requires the High Court to 
expedite its consideration of such cases. The bill, however, is limited 
to circumstances where the Court has not previously decided the 
question at issue. Thus, it does not create a permanent right of review 
for all similarly situated parties, but it does require the Court to 
take up the matter in the first instance.
  Congress clearly has the power to require appellate review by the 
Supreme Court under Article III, Section 2 of the Constitution, and it 
has exercised this prerogative. For example, 28 U.S.C. Sec.  3904 
provides for direct appeal to the Supreme Court of decisions ``upon the 
constitutionality'' of the Congressional Accountability Act if the 
Court ``has not previously ruled on the question'' and requires the 
Court to ``expedite the appeal.'' Congress used nearly identical 
language to provide for direct appeal and expedited Supreme Court 
review of the constitutionality of a ban on flag burning in 18 U.S.C. 
Sec.  700.
  I propose similar action here. It is hard to conceive of a better 
case to have finally decided in the Supreme Court than one which 
challenges the legality of warrantless wiretapping--or the 
constitutionality of the retroactive statutory defenses passed by 
Congress last year.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 877

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL 
                   ACTIONS.

       Chapter 81 of title 28, United States Code, is amended by 
     inserting at the end the following:

     ``SEC. 1260. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL 
                   ACTIONS CONCERNING SURVEILLANCE ACTIVITIES.

       ``(a) In General.--The Supreme Court shall, if it has not 
     previously ruled on the question, accept jurisdiction over 
     any appeal of an interlocutory or final judgment, decree, or 
     order of a court of appeals in any case challenging the 
     legality or constitutionality of--
       ``(1) the President's Surveillance Program, commonly known 
     as the Terrorist Surveillance Program, as defined in section 
     301(a)(3) of the Foreign Intelligence Surveillance Act of 
     1978 Amendments Act of 2008 (Public Law 110-261);
       ``(2) the statutory defenses established in Section 
     802(a)(4) of the Foreign Intelligence Surveillance Act of 
     1978, as amended by title II of the Foreign Intelligence 
     Surveillance Act of 1978 Amendments Act of 2008 (Public Law 
     110-261); or
       ``(3) any intelligence activity involving communications 
     that was authorized by the President during the period 
     beginning on September 11, 2001, and ending at such time as 
     the activity was approved by a Federal court.
       ``(b) Expedited Consideration.--The Supreme Court shall 
     advance on the docket any appeal referred to in subsection 
     (a), and expedite the appeal to the greatest extent 
     possible.''.

     SEC. 2. CLERICAL AMENDMENT.

       The chapter analysis for chapter 81 of title 28, United 
     States Code, is amended by inserting at the end the 
     following:

``Sec. 1260. Mandatory supreme court review of certain civil actions 
              concerning surveillance activities.''.

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