Congressional Record: January 25, 2006 (Senate)
Page S35-S108

                      Judiciary Commmittee Agenda


  The Judiciary Committee, on the second item, is scheduled to hold a 
hearing on the wartime Executive power and NSA's surveillance authority 
on February 6. I think my colleagues will be interested in a letter 
which I have written to the Attorney General dated January 24, 
yesterday, outlining a series of some 15 questions to be addressed in 
advance of the hearing or at the time of the Attorney General's opening 
statement--at least that request--to try to set the parameters and 
issues of that hearing. I ask unanimous consent that the letter to 
Attorney General Gonzalez be printed in the Record at the conclusion of 
my statement today.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                                                      U.S. Senate,
                                       Committee on the Judiciary,
                                 Washington, DC, January 24, 2006.
     Hon. Alberto R. Gonzales,
     Attorney General, U.S. Department of Justice, Washington, DC.
       Dear Attorney General Gonzales: I write to let you know 
     some of the subjects which I would like you to address in 
     your opening statement on the Judiciary Committee hearing 
     scheduled for February 6, 2006, on ``Wartime Executive Power 
     and the NSA's Surveillance Authority.''
       (1) In interpreting whether Congress intended to amend the 
     Foreign Intelligence Surveillance Act (FISA) by the September 
     14, 2001 Resolution (Resolution), would it be relevant on the 
     issue of Congressional intent that the Administration did not 
     specifically ask for an expansion for Executive powers under 
     FISA? Was it because you thought you couldn't get such an 
     expansion as when you said: ``That was not something that we 
     could likely get?''
       (2) If Congress had intended to amend FISA by the 
     Resolution, wouldn't Congress have specifically acted to as 
     Congress did in passing the Patriot Act giving the Executive 
     expanded powers and greater flexibility in using ``roving'' 
       (3) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what is 
     the impact of the rule of statutory construction that repeals 
     or changes by implication are disfavored?
       (4) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what would 
     be the impact of the rule of statutory construction that 
     specific statutory language, like that in FISA, trumps or 
     takes precedence over more general pronouncements like those 
     of the Resolution?
       (5) Why did the Executive not ask for the authority to 
     conduct electronic surveillance when Congress passed the 
     Patriot Act and was predisposed, to the maximum extent 
     likely, to grant the Executive additional powers which the 
     Executive thought necessary?
       (6) Wasn't President Carter's signature on FISA in 1978, 
     together with his signing statement, an explicit renunciation 
     of any claim to inherent Executive authority under Article II 
     of the Constitution to conduct warrantless domestic 
     surveillance when the Act provided the exclusive procedures 
     for such surveillance?
       (7) Why didn't the President seek a warrant from the 
     Foreign Intelligence Surveillance Court authorizing in 
     advance the electronic surveillance in issue? (The FISA Court 
     has the experience and authority to issue such a warrant. The 
     FISA Court has a record establishing its reliability for non-
     disclosure or leaking contrasted with concerns that 
     disclosures to many members of Congress involved a high risk 
     of disclosure or leaking. The FISA Court is a least as 
     reliable, if not more so, that the Executive Branch on 
     avoiding disclosure or leaks.)
       (8) Why did the Executive Branch not seek after-the-fact 
     authorization from the FISA Court within the 72 hours as 
     provided by the Act? At a minimum, shouldn't the Executive 
     have sought authorization from the FISA Court for law 
     enforcement individuals to listen to a reduced number of 
     conversations which were selected out from a large number of 
     conversations from the mechanical surveillance?
       (9) Was consideration given to the dichotomy between 
     conversations by mechanical surveillance from conservations 
     listened to by law enforcement personnel with the contention 
     that the former was non-invasive and only the latter was 
     invasive? Would this distinction have made it practical to 
     obtain Court approval before the conservations were subject 
     to human surveillance or after-the-fact approval within 72 
       (10) Would you consider seeking approval from the FISA 
     Court at this time for the ongoing surveillance program at 
       (11) How can the Executive justify disclosure to only the 
     so-called ``Gang of Eight'' instead of the full intelligence 
     committees when Title V of the National Security Act of 1947 
       Sec. 501. [50 U.S.C. 413] (a)(1) The President shall ensure 
     that the congressional intelligence committees are kept fully 
     and currently informed of the intelligence activities of the 
     United States, including any significant anticipated 
     intelligence activity as required by this title. (Emphasis 
       (2)(e) Nothing in this Act shall be construed as authority 
     to withhold information from the congressional intelligence 
     committees on the grounds that providing the information to 
     the congressional intelligence committees would constitute 
     the unauthorized disclosure of classified information or 
     information relating to intelligence sources and methods. 
     (Emphasis added)
       (12) To the extent that it can be disclosed in a public 
     hearing (or to be provided in a closed executive session), 
     what are the facts upon which the Executive relies to assert 
     Article II wartime authority over Congress' Article I 
     authority to establish public policy on these issues 
     especially where legislation is approved by the President as 
     contrasted to being enacted over a Presidential veto as was 
     the case with the War Powers Act?
       (13) What case law does the Executive rely upon in 
     asserting Article II powers to conduct the electronic 
     surveillance at issue?
       (14) What academic or export opinions does the Executive 
     rely upon in asserting Article II powers to conduct the 
     electronic surveillance at issue?
       (15) When foreign calls (whether between the caller and the 
     recipient both being on foreign soil or one of the callers or 
     recipients being on foreign soil and the other in the U.S.) 
     were routed through switches which were physically located on 
     U.S. soil, would that constitute a violation of law or 
     regulation restricting NSA from conducting surveillance 
     inside the United States, absent a claim of 
     unconstitutionality on encroaching on Executive powers under 
     Article II?
       This letter will further confirm our staffs' discussions 
     that the Committee will require, at a minimum, the full day 
     on February 6th for your testimony.
                                                    Arlen Specter.