[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 922-923]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. SPECTER. Mr. President, I have sought recognition to speak 
briefly in opposition to the motion to invoke cloture. The amendment 
which I have filed goes to the heart of the issue on removing liability 
from the telephone companies to impose retroactive immunity. The 
amendment which I have filed and has been discussed on the floor of the 
Senate would substitute the Government for the party defendant, where 
the Government would have the same defenses--no more, no less.
  For example, the telephone companies do not have the defense of 
governmental immunity; and the Government, when substituted, would not 
have the defense of governmental immunity. The telephone companies can 
plead state secrets to foreclose the litigation; and when the 
Government would be substituted, for example, the Government could 
assert the doctrine of state secrets in order to foreclose the 
litigation.
  If the motion to invoke cloture is granted, I am advised by the 
Parliamentarian my amendment would not be germane and, therefore, would 
be stricken. We went through a long session last year where the 
argument was made, repeatedly and persuasively, not to invoke cloture--
the argument advanced on this side of the aisle--in order to give 
Members on this side of the aisle an opportunity to propose their 
amendments. Now we have the first situation sought to be applied, and 
it is my hope this body will reject the cloture motion.
  There has been very little time spent on this very important subject 
in this body, and when you have a matter of the importance of 
retroactive immunity, where you are going to shut off the courts of the 
United States from hearing cases that are already pending, there ought 
to be time for consideration of an amendment such as the one Senator 
Whitehouse and I have offered to substitute the U.S. Government.
  The purpose of our amendment is to comport with the basic 
constitutional provision of separation of powers, which is the 
cornerstone of the Constitution, and we have found, regrettably, it has 
been inadequate to have congressional supervision, congressional 
oversight, because of its ineffectiveness. For example, when the 
Judiciary Committee seeks to obtain records on the destruction of CIA 
tapes, you find the administration resisting and the inevitable 
argument of politics. When the court issues an order, as the Federal 
Court did last week for a report on the destruction of documents, 
seeking to find out what happened on the destruction of the CIA 
documents, the court can't be charged with politics. We find in Rasul, 
and in other litigation matters, the judicial branch has been effective 
in maintaining the separation of power.
  One further comment. It is a surprise to me that the amendment which 
I have offered with Senator Whitehouse has been ruled nongermane. I 
took a look at Webster's International Dictionary and germane is 
defined as:

     closely or significantly related; relevant; pertinent; 
     closely akin.

  I consulted with a Parliamentarian and asked why our amendment was 
ruled as nongermane, and the answer given was because there was no 
specific statement of the underlying bill on governmental liability. In 
pursuing the issue with the Parliamentarian, I then said: I am going to 
seek to change the rules.
  It seems to me peculiar, if not absurd, that my amendment, the 
Specter-Whitehouse amendment, would not be germane under the common 
meaning of the English language. I said: Suppose we change the rules to 
provide that it was relevant? And the answer I got, and I don't want to 
misquote anybody, was that: Yes, that would stand the test of 
relevancy. As he put it, a more permissive standard.
  So then I checked the definition of relevant in Webster's 
International Dictionary, and it says:

       Bearing upon or connected with the matter in hand; to the 
     purpose; pertinent, raise, lift up, syn applicable, germane, 
     appropriate, suitable, fitting.

  Well, the key part about the definition of relevant is that one of 
the synonyms is germane, just as one of the synonyms of germane is 
relevant. Now, it is a loss to me. I have been here a while, and I have 
had a hard time understanding the ruling of what is germane, and I have 
never seen one as close to the core point as putting the Government as 
a substitute for the telephone companies, but somehow it is not 
germane.
  So I wish to put my colleagues on notice that I intend to try to 
change the rules. I can't see why one is necessary when Webster's has 
germane as a substitute for relevant and relevant as a substitute for 
germane. If the Parliamentarian thinks that relevant is OK, it is, 
again, hard for me to see why germane is not. A little surprising.
  Mr. DORGAN. Mr. President, will the Senator yield for question? I 
don't want to interrupt his comments.
  Mr. SPECTER. I will.
  Mr. DORGAN. Mr. President, morning session is up at 3, and I am 
scheduled for 15 minutes. I might ask to extend the time. I don't know 
how much time the Senator is going to use, but I want to make certain I 
have the opportunity that was previously ordered, for 15 minutes on 
this side.

[[Page 923]]

  The ACTING PRESIDENT pro tempore. There is 10 minutes, 12 seconds 
remaining, and morning business is under the control of the majority.
  Mr. DORGAN. Mr. President, how much additional time does the Senator 
from Pennsylvania need?
  Mr. SPECTER. Less than a minute.
  Mr. DORGAN. Let me ask unanimous consent that we extend by 5 minutes 
the time for morning business so it terminates at 3:05.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DORGAN. I thank my colleague for his courtesy.
  Mr. SPECTER. I thank the distinguished Senator from North Dakota.
  Well, I have made my argument. I think it is important to have a 
ruling, a vote by this body on whether we are going to apply 
retroactive immunity to the telephone companies. I said on the floor 
last week that if my amendment is not adopted, I will support 
retroactive immunity. I think it is a bad practice, but I think, as bad 
as that practice is, it would be worse to cut off the information which 
our intelligence community thinks we need. I think it is not advisable. 
And when we have a method of having both objectives, that is to have 
the Government have access to the information and at the same time not 
impose the cutting off of the judicial system for checks and balances, 
I think that ought to be adopted.
  And further, a final comment on the hard-to-understand definition of 
germane. The dictionary defines it as being relevant, and the 
dictionary defines relevant as being germane, with the Parliamentarian 
giving a supplemental opinion that if the standard was relevance, it 
would be appropriate to have the amendment.
  I thank the Chair, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from North Dakota.

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