[Congressional Record: June 23, 2008 (Senate)]
[Page S5950-S5953]


  Mr. REID. Mr. President, I now move to proceed to Calendar No. 827, 
H.R. 6304, the Foreign Intelligence Surveillance Act.
  The ACTING PRESIDENT pro tempore. The motion is debatable.

                             Cloture Motion

  Mr. REID. Mr. President, I send to the desk a cloture motion.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the motion to 
     proceed to Calendar No. 827, H.R. 6304, the FISA Amendments 
     Act of 2008.
         Sheldon Whitehouse, Patty Murray, Max Baucus, Tim 
           Johnson, Ken Salazar, Barbara A. Mikulski, John D. 
           Rockefeller, IV, Herb Kohl, Robert P. Casey, Jr., 
           Daniel K. Inouye, Mary Landrieu, Blanche L. Lincoln, 
           Mark L. Pryor, Dianne Feinstein, Thomas R. Carper, 
           Joseph Lieberman, Claire McCaskill.

  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
  Mr. SPECTER. Mr. President, I ask unanimous consent that further 
proceedings under the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. SPECTER. Mr. President, I have sought recognition to address the 
issues on legislation which is coming from the House of Representatives 
amending the Foreign Intelligence Surveillance Act.
  The issues on which the Senate will vote on the House bill involve 
very fundamental questions of constitutional rights versus the war on 
terrorism. We have legislation which has come from the House of 
Representatives which would grant retroactive immunity to the telephone 
companies on a showing that the companies receive written requests from 
the Government saying the program was legal.
  At the outset, I recognize the telephone companies as good citizens. 
But the test of whether what has been done is legal is not determined 
by the assertion by the Government to the telephone companies that the 
program is legal. That determination can only be made by the courts on 
evaluation of congressional authority under article I, which has been 
exercised in the Foreign Intelligence Surveillance Act of 1978, since 
amended, contrasted with the President's article II powers as Commander 
in Chief. That test has not been waived.
  I submit the historians will look back upon the period of time from 
9/11 to the present and beyond as the greatest expansion of executive 
authority in the history of the country. I believe additional law 
enforcement tools were necessary. In my capacity as the chairman of the 
Judiciary Committee, I led the fight for the PATRIOT Act re-
authorization on this floor to give law enforcement broader power.
  But, at the same time, I have expressed my deep concern that there be 
a determination by the courts as to whether the warrantless wiretapping 
is valid under the Constitution. We have seen great stress laid upon 
the provision in the House measure that the exclusive means for 
wiretapping will be provided by the statute. But that does not stop the 
President from asserting his authority under article II of the 
  The Foreign Intelligence Surveillance Act of 1978 has a similar 
provision of exclusivity, but that did not stop the President from 
initiating the Terrorist Surveillance Program which was kept secret for 
years from the Congress. The President has a sound constitutional 
argument that you cannot amend the Constitution by statute; you cannot 
take away the President's constitutional authority by a statute, but it 
is up to the courts to strike the balance and to make that 
  Regrettably, Congress and the efforts which we have made have, I 
submit, been totally insufficient. We have had the so-called signing 
statements as an expansion of executive authority, and Congress has 
been unable to assert its authority under the Constitution on the 
legislation we send to the President. The Constitution is plain. Each 
House passes legislation. There is a conference report, and it is sent 
to the President and presented. Then the President has the option of 
either signing or vetoing.
  But a practice has arisen in the past, very extensively used by this 
administration, to put in signing statements which are at material 
variance--that really directly contradict what is in the legislation. 
There may be some justification for a signing statement on some minor 
matters on an administrative level, but in my formal statement I go 
into a couple of examples on a controversy on enhanced interrogation, 
or so-called torture, which passed the Senate 90 to 9.
  In a celebrated meeting between Senator McCain and President Bush, 
they reached a compromise. Then when the legislation went to the 
President, the President issued a signing statement saying that he had 
the authority to disregard it under his powers as Commander in Chief, 
article II authority.
  In a similar vein on the PATRIOT Act re-authorization, we put in 
restrictions on what the law enforcement officials could do, negotiated 
with the administration, signed into law by the President, and again a 
statement was made that if the President chose to exercise his 
constitutional authority, article II power, he felt free to do so.
  I introduced legislation to give the Congress standing to go to court 
to challenge these signing statements. The legislation has not gotten 
very far because of the impossibility of overriding a veto and because 
of the concern as to whether the constitutional standard of the case 
and controversy would be met. So here we have the unfettered practice 
of these signing statements as an example of executive authority.
  Second, the Supreme Court review of the Terrorist Surveillance 
Program and habeas corpus has been inadequate. In the Detroit case, the 
Federal court finding the Terrorist Surveillance Program 
unconstitutional was appealed to the Sixth Circuit. After lengthy 
delays, the Sixth Circuit reversed the Detroit Federal court on the 
grounds of lack of standing. Then, again, after months of delay, the 
case went to the Supreme Court of the United States which, again, 
denied certiorari.
  The issue of standing has sufficient flexibility, as demonstrated by 
the dissent in the Sixth Circuit, that the Supreme Court could have 
taken up the issue. The question on the Terrorist Surveillance Program 
presents the sharpest conflict of our era on the clash between the 
President's authority under article II as Commander in Chief and the 
authority of Congress to enact statutes, as we did under the Foreign 
Intelligence Surveillance Act of 1978.
  Similarly, on habeas corpus, notwithstanding the Rasul decision, the 
Court of Appeals for the District of Columbia in Boumediene essentially 
disregarded the holding of the Supreme Court in Rasul when the Circuit 
Court for the District of Columbia said the decision by the Supreme 
Court turned on a statutory interpretation.
  Habeas corpus is provided for in two ways under our law: No. 1, it is 
descended from the Great Writ, the Magna Carta, of 1215, and it is 
embodied in our constitutional law as made plain by Justice Stevens in 
Rasul. And there is also a statutory provision for habeas corpus. In 
the Military Commissions Act, the Congress modified the statutory 
provision, and the Court of Appeals for the District of Columbia saw 
fit to say that once the statute was changed, habeas corpus didn't 
apply--really flying in the face of what the holding was in Rasul.

  Finally, a protracted period of time later, in Boumediene, the 
Supreme Court reinstated habeas corpus as it was bound to do based upon 
the clear holding of Rasul and the long history of the issue.
  Congress has similarly been ineffective in curtailing executive 
authority in the National Security Act of 1947, which requires the 
President to notify the intelligence committees of both the House and 
Senate, and for protracted periods of time the executive branch ignored 
that requirement. Only when the confirmation of General Hayden as 
Director of CIA came up was

[[Page S5951]]

there some compliance with that requirement.
  The Judiciary Committee, during my tenure as chair, sought to bring 
in the telephone companies, sought to issue subpoenas to find out what 
the telephone companies were undertaking. On that situation, as I have 
said on the floor of the Senate, Vice President Cheney personally went 
behind my back to talk to Republican members of the Judiciary Committee 
without talking to me at any stage. That effort was made because the 
telephone companies, unlike the executive branch, unlike the 
President--the telephone companies do not have executive privilege.
  Similarly, the Senate defeated my amendment on the Foreign 
Intelligence Surveillance Act which would have substituted the 
Government for the telephone companies as the parties defendant. There 
was a way that the telephone companies could have been recognized for 
their good citizenship and held harmless by having the Government step 
into their shoes. But that amendment was defeated.
  I submit the case for this determination has a very important 
dimension beyond the customary doctrine of separation of powers because 
we are asked to give retroactive immunity to something while we don't 
even know on the record the full import of what is involved. The 
warrantless wiretapping, the data mining by the telephone companies is 
known only to some Members of Congress. It is not known to the public. 
I intend to offer an amendment which will require that the district 
court--the House bill now lodges jurisdiction in the district court to 
make the determination on the legality of FISA--my amendment will call 
for the district court to make the determination as to whether what has 
been done by the telephone companies is constitutional.
  The ultimate vote on this matter is a tough one. There are quite a 
number of provisions in the House bill which are protective of civil 
liberties. I have detailed them in my formal written statement. So when 
I come to a balance as to voting for the bill or not, my inclination is 
to vote in favor of the bill because of the importance of the ongoing 
activities of the telephone companies, notwithstanding my deep concern 
for civil rights. But there is a much better alternative, and that much 
better alternative would have been to have substituted the Government 
for the telephone companies as the party defendant or, now, to submit 
the question of constitutionality to the district court.
  My vote was misunderstood on the Military Commissions Act. When I had 
led the fight to retain habeas corpus in that bill, it was defeated 51 
to 48--but we later voted for the bill because of its recognition of 
the applicability of the Geneva Conventions and other important parts 
of the bill. I said at the time that because of the severability 
clause, the Supreme Court of the United States would reinstate habeas 
corpus--which, of course, in the past couple of weeks, we know the 
Supreme Court has done.
  We are dealing here, essentially, with very subtle and very nuanced 
provisions. There are very tough judgments to be made in the 
legislative context. The war on terrorism is still on the front burner. 
We do not know what is going to come next.
  So that any time there is a balance as to what we ought to do, 
because of the value which I think is present from this data-mining and 
the work done by the telephone companies, I think it ought to be 
maintained. But where we have an option of doing it in a constitutional 
way, either by sunshine or by submitting it to the court, that is the 
preferable course of conduct.
  I ask unanimous consent that the full text of a detailed statement 
summarizing my position and a draft amendment be printed in the Record 
so my colleagues will have an opportunity to review both my written 
statement and my oral presentation of the proposal for an amendment 
which I intend to offer when the bill comes up.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        Floor Statement on FISA

       The Senate is coming to a critical vote on our duty to 
     exercise our most fundamental constitutional obligation on 
     separation of powers: to strike the appropriate balance 
     between the war against terrorism and protecting civil 
     rights. We are asked by the House of Representatives to 
     approve their bill on amending the Foreign Intelligence 
     Surveillance Act, a bill which gives retroactive immunity to 
     the telephone companies that facilitated warrantless 
     surveillance, but does not require a judicial determination 
     that the government's program was constitutional.
       It is totally insufficient to confer immunity merely 
     because the companies received written requests from the 
     government saying the program was legal. While it is true 
     that the standard of review has been changed from ``abuse of 
     discretion'' to ``substantial evidence'' in this bill, the 
     real question is ``substantial evidence'' of what? Only that 
     the President authorized the program and the government sent 
     written requests to the companies assuring them it was legal. 
     The court is not required to find that the requests were 
     lawful, or that the surveillance itself was constitutional.
       The provision that the legislation will be the exclusive 
     means for the government to wiretap is meaningless because 
     that specific limitation is in the 1978 Act and it didn't 
     stop the government from conducting the warrantless Terrorist 
     Surveillance Program with the telephone companies' 
     assistance. The bill leaves the President with his position 
     that his Article II powers as commander in chief cannot be 
     limited by statute. That is a sound constitutional argument, 
     but only the courts can ultimately decide that issue, and 
     this bill dodges the issue by limiting judicial review.
       The constitutional doctrine of separation of powers has 
     been mangled since 9/11. I believe that, decades from now, 
     historians will look at the time between 9/11 and the present 
     as the greatest expansion of unchecked executive power in the 
     history of the country. I believe that much, if not most, of 
     that power was necessary to fight terrorism and I led the 
     fight as Chairman of the Judiciary Committee to expand law 
     enforcement powers under the PATRIOT Act. I also offered 
     numerous pieces of legislation designed to bring the 
     Terrorist Surveillance Program under federal court review and 
     to ensure that vital intelligence gathering could continue 
     with appropriate oversight. In the 109th and 110th 
     Congresses, I introduced several versions of the National 
     Security Surveillance Act (first introduced on March 16, 
     2006), the Foreign Intelligence Surveillance Improvement and 
     Enhancement Act (with Senator Feinstein, first introduced on 
     May 24, 2006), and the Foreign Intelligence Surveillance 
     Oversight and Resource Enhancement Act (first introduced on 
     November 14, 2006).
       There has to be a check and balance. The Congress has been 
     totally ineffective, punting to the courts and then seeking 
     to limit the courts' authority as the House of 
     Representatives is now doing. The problem is compounded by 
     the fact that the Supreme Court had ducked and delayed 
     deciding where the line is between Congressional authority 
     under Article I and presidential authority under Article II.
       Let me document the ineffectiveness of Congress:
       (1) Signing Statements: The constitution is explicit that 
     Congress sends legislation to the president who has only two 
     options: sign or veto. Instead on key provisions limiting 
     executive authority, including Senator McCain's amendment--
     adopted 90 to 9 in the Senate--to ban ``cruel, inhuman or 
     degrading'' treatment of any prisoner held by the United 
     States, and the new PATRIOT Act sections requiring audits and 
     Congressional reporting to ensure the FBI does not abuse its 
     terrorism-related powers to secretly demand the production of 
     records, the President has signed the Congressional 
     presentment and then issued a statement asserting his Article 
     II power to ignore those limitations.
       My legislation to give Congress standing to challenge the 
     constitutionality of those signing statements has gone 
     nowhere because of three factors: (1) The disinclination of 
     Congress to challenge the president in the context of getting 
     blamed if there were another terrorist attack; (2) the 
     virtual impossibility of overriding a veto; and (3) the 
     doubts by a few that such legislation would satisfy the 
     constitutional requirements of the case and controversy.
       (2) Requiring Supreme Court Review of the TSP and Habeas: 
     The efforts to get a Supreme Court ruling on the 
     constitutionality of the Terrorist Surveillance Program were 
     ducked by the Supreme Court. The ruling of the U.S. District 
     Court in Detroit holding the Terrorist Surveillance Program 
     unconstitutional was reversed by the 6th Circuit on a 2-1 
     vote on lack of standing and the Supreme Court denied 
     certiorari. The doctrine of standing has enough flexibility, 
     as demonstrated by the dissent in the 6th Circuit, to have 
     enabled the Supreme Court to take up the most fundamental 
     clash between Congress and the president in our era, if the 
     Supreme Court had the courage to do so.
       The Supreme Court acted almost as badly on the habeas 
     corpus issue in initially denying certiorari on the D.C. 
     Circuit's decision in Boumediene, which ignored the plain 
     language in Rasul confirming that habeas corpus was a 
     constitutional right, not just one based on legislation which 
     Congress had changed. Only when confronted with the 
     overwhelming evidence on the inadequacy of the Combat Status 
     Review Tribunals did the Supreme Court finally grant a 
     petition for reconsideration on certiorari and ordered the 
     District Courts to grant habeas corpus review after a very 
     long delay.

[[Page S5952]]

       (3) Violation of the National Security Act: The Congress 
     was remedy-less to do anything when the President ignored the 
     National Security Act of 1947 which requires notification of 
     programs like the Terrorist Surveillance Program to the House 
     and Senate Intelligence Committees. It was only when the 
     administration needed the confirmation of General Michael 
     Hayden to be Director of the CIA that any effort at 
     compliance was made.
       (4) Subpoenas for Telecoms: My efforts as Chairman of the 
     Judiciary Committee in June 2006 to get information about the 
     telephone companies' warrantless wiretapping were obstructed 
     by an unusual breach of protocol by Vice President Dick 
     Cheney personally when he went behind my back to urge other 
     Judiciary Committee members to oppose my efforts to subpoena 
     the telephone companies which, unlike the administration, 
     could not plead executive privilege.
       (5) Military Commissions Act: Congress has been docile, 
     really inert, in failing to push back on the executive's 
     encroachment on our authority. My amendment to retain habeas 
     corpus in the Military Commissions Act was defeated 48-51. 
     Meanwhile, the Graham-Levin amendment to the National Defense 
     Authorization Act for Fiscal Year 2006 passed by the shocking 
     vote of 84-14 despite the fact that it was drafted overnight, 
     had no hearing and virtually no debate with my having only 
     two minutes to speak in opposition. On its face the amendment 
     stripped the Supreme Court of jurisdiction by vesting 
     exclusive jurisdiction with the District of Columbia Circuit. 
     It would be hard to find an amendment on a more important 
     subject given less scrutiny and passed with less thought and 
     in such haste.
       (6) FISA Substitution Amendment: Similarly, the Senate 
     defeated my amendment to the Foreign Intelligence 
     Surveillance Act which would have substituted the government 
     for the telephone companies as the defendants in the pending 
     litigation. That would have protected the telephone companies 
     but left the courts to decide if the program was 
       The Senate now has the opportunity to provide for judicial 
     review by amending the House Foreign Intelligence 
     Surveillance Act bill to authorize the U.S. District Courts 
     to determine the constitutionality of the administration's 
     program before granting immunity to the telephone companies.
       The case for that determination has an important extra 
     dimension beyond separation of powers. It involves a 
     repugnant factor; namely, that the government had instigated 
     and maintained for many years a secret practice, the scope of 
     which is unknown to the public and known only to some members 
     of Congress. It smacks of Star Chamber proceedings from old 
     England. Now the administration insists on retroactive 
     immunity and the House has complied. It is time the Senate 
     stood up and earned its reputation as the ``world's greatest 
     deliberative body'' and at least demonstrate some courage, if 
     not a full profile, by insisting on judicial review.
       In offering an amendment for judicial review, I am mindful 
     of the importance of what the telephone companies have been 
     doing on the war against terrorism from my classified 
     briefings. It is a difficult decision to vote for retroactive 
     immunity if my amendment fails, but I will do so, just as I 
     voted for it when my substitution amendment failed because I 
     conclude that the threat of terrorism and the other important 
     provisions in the House bill outweigh the invasion of 
       I do so with great reluctance because it sets a terrible 
     precedent for the executive to violate the Foreign 
     Intelligence Surveillance Act, the National Security Act of 
     1947, and the presentment clause of the constitution and then 
     receive a Congressional pardon. It is especially galling 
     since Congress could both protect the telephone companies by 
     substitution and allow the lawsuits to go forward or 
     authorize their continuance by my amendment.
       I also intend to vote for the bill regardless of what 
     happens to my amendment because of the other important 
     features of the bill. It requires prior court review of the 
     government's foreign-targeted surveillance procedures, except 
     in exigent circumstances (the 7-day exception). Also, the 
     FISA Court must determine whether--going forward--the foreign 
     targeting and minimization procedures satisfy the Fourth 
     Amendment. The bill also requires prior, individualized court 
     orders based on probable cause for U.S. persons when they are 
     outside the country. And, the bill requires a comprehensive 
     Inspector General review of the Terrorist Surveillance 
       I know that this nuanced position of fighting retroactive 
     immunity and then voting for the bill will be misunderstood 
     because of the complexity of the issues and the subtleties of 
     my rationale.
       I have been similarly misunderstood in my castigation of 
     the provisions eliminating statutory habeas corpus and court-
     stripping in the Military Commissions Act and then voting for 
     the bill. I did so, and gave my contemporaneous reasons, 
     because the Act contained many important provisions, such as 
     implementing the Geneva Conventions in accordance with the 
     Supreme Court's Hamdan ruling. The Act also brought the 
     military commissions within Congressional authorization and 
     the law--something the current bill seeks to do for vital 
     intelligence gathering. I said at the time that the Supreme 
     Court would strike the exclusion of habeas corpus, leaving 
     the rest of the Act intact under the severability clause, and 
     that did happen in Boumediene.
       It is my hope that my colleagues in the Senate and House 
     too would give a little extra consideration to this issue 
     because it is past time for Congress to assert itself and at 
     least leave the courts free to determine constitutional 
     rights and separation of powers.

                            Draft Amendment

       In section 802(b) of the Foreign Intelligence Surveillance 
     Act of 1978, as added by section 201 of the Act, strike 
     paragraph (1) and insert the following:
       ``(1) Review of certifications.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a certification under subsection (a) shall be given effect 
     unless the court finds that such certification is not 
     supported by substantial evidence provided to the court 
     pursuant to this section.
       ``(B) Covered civil actions.--In a covered civil action 
     relating to assistance alleged to have been provided in 
     connection with an intelligence activity involving 
     communications that was authorized by the President during 
     the period beginning on September 11, 2001, and ending on 
     January 17, 2007, a certification under subsection (a) shall 
     be given effect unless the court--
       ``(i) finds that such certification is not supported by 
     substantial evidence provided to the court pursuant to this 
     section; or
       ``(ii) determines that the assistance provided by the 
     applicable electronic communication service provider was