Congressional Record: March 29, 2006 (Senate)
Page S2535-S2537                        


      By Mr. SCHUMER:
  S. 2468. A bill to provide standing for civil actions for declaratory 
and injunctive relief to persons who refrain from electronic 
communications through fear of being subject to warrantless electronic 
surveillance for foreign intelligence purposes, and for other purposes; 
to the Committee on the Judiciary.
  Mr. SCHUMER. Mr. President, one of the issues that has been hovering 
over this Chamber--and this country, of course--is the NSA program, the 
President's program to do wiretaps on American citizens if part of the 
call originated in a foreign country.
  First, let me stress that I think most of us in this Chamber, 
Democrat and Republican--certainly myself--believe the President should 
be given the tools he needs to fight terror. In this brave new world, 
the tools are different, and because a rule worked in 1960 or 1980 does 
not necessarily mean it works in 2005 or 2006 or 2004. We have to be 
flexible. I think you can be flexible in a way that both protects our 
security and protects our liberty. In most issues, this does not 
conflict. My watchword on most of these issues is: Have a debate, have 
a standard, and have an independent arbiter check that that standard is 
being met.
  That worked, for instance, in wiretaps. Before 1971, it was a mess. 
J. Edgar Hoover was listening in on whomever he chose. There was a 
debate on this issue. There was a standard--probable cause--and there 
is an independent arbiter, a federal judge, who determines whether 
probable cause is met. And it works. Neither the prosecutors nor the 
defense bar have any complaints.
  We could come to the same exact conclusion in the new world we face, 
where warrants are needed far more quickly regarding many more people. 
If you are doing information gathering where you look for patterns, 
that might be needed. Again, because one way worked in the past doesn't 
mean it still works, and I think most Members, myself included, want to 
be flexible. The problem is when the executive branch arrogates this 
issue to itself and says, We can decide to do whatever we want, either 
under the constitutional executive power--that is pretty broad--or even 
under a grant of war powers, a grant to use force which, as most know, 
I supported back when the President asked for it in 2001.
  Now there is a great debate. The President and his supporters say he 
was allowed to do these wiretaps without changing the law, without 
congressional approval. Some on the other side say he never should have 
been allowed to do it. I think that is a small minority. Many others 
say: Yes, he should be allowed to do it, but there ought to be a 
congressional debate, a change in the law, and perhaps a standard would 
be applied.
  Right now we are deadlocked on that issue. We are deadlocked because, 
whether it is the Intelligence Committee, the Judiciary Committee on 
which I serve, this body in general, or the Nation--nobody knows, did 
the President go outside the ambit of the law about asking for a 
warrant? Some think yes, and they are pretty sure of that. Some think 
no, and they are pretty sure of it. They are pretty sure that he 
couldn't. Many are not sure at all.
  I ask you, who is the logical group or person to make that 
determination? The executive branch generally through our history has 
had a lean to expand executive power. That is natural.
  The legislative branch has had a lean on the other side. That is how 
the Founding Fathers set up our Government in their wisdom and it seems 
to have worked very well ever since 1789. To say we should just go 
along with what the executive branch wants is not going to work. 
Frankly, even though I am a Senator and believe in protecting the 
legislative prerogative, if we only did what the legislative branch 
wanted, that probably wouldn't work, either; and, needless to say, we 
are divided on this.
  The most logical place for this to be settled is in the U.S. Supreme 
Court. They don't side with executive or legislative power, 
necessarily. They are authoritative, they are respected, in a sense 
they are the supreme arbiters, and they could put this question to rest 
and we could move on.
  There is one difficulty. There will be people who will challenge 
these wiretaps through the normal process and we might get to the 
Supreme Court in 3 or 4 years. During all that time, the gridlock and 
deadlock we face on this issue, and the concomitant gridlock and 
deadlock that occurs in other issues related to this, would be hanging 
over this body. So I tried to figure out how can we get the Supreme 
Court to hear this case quickly.
  The bill I am introducing right now will do just that. We have 
consulted some expert authorities and there are two basic problems--one 
easier, one harder. The easier is to simply expedite the judicial 
process, to grant expedited review. The minute a case is decided in the 
district court, it goes right up to the Supreme Court because time is 
of the essence--and I believe it is here. We have good precedent for 
this. It was done recently so the Supreme Court could hear on an 
expedited basis McCain-Feingold, and they came to a conclusion, and 
elections could be held and we moved forward. That is a typical example 
of where you would do that.
  Our bill does grant such expedited review. But what about standing? 
How do you quickly get into the district court to do this? And, by the 
way, I have a feeling very few in this body would want to grant an 
expedited hearing to someone who might be participating in or accused 
of terrorism. So you have a dilemma that, while you want expedited 
review and it would seem logical that the Supreme Court should be the 
place, the cases that are out there are not the ones that would seem to 
merit that kind of expedited review--a special case; particularly if 
someone is accused of terrorism. We in New York know better than 
anywhere else that is a dastardly act.
  What we have done--frankly, in consultation with some leading experts 
on this--is we have granted standing to a

[[Page S2536]]

very narrow class of citizens who actually have refrained from making 
overseas calls because of a fear that they might be listened to under 
the NSA program. But these are not people who are accused of terrorism 
in any way. These are, rather, people who maybe would be--and it is a 
small class--business people who would regularly call, say, 
Afghanistan. Maybe they are importing rugs, who knows? But they are 
afraid to because their calls might be listened in to.
  It might be academics, maybe a professor of linguistics who might be 
doing research into the Pashtun language, and now has refrained from 
making calls. These are people who have been chilled by the reports 
that their calls might be listened in to. They are American citizens 
calling the foreign country and would have standing.
  Our bill gives those people standing, gives them a right to go to 
district court quickly and then with expedited review to the Supreme 
Court, so we could actually get a decision, very possibly, on whether 
the President's wiretapping was under the ambit of the law very 
quickly. It is very authoritative. It might break through the dilemmas 
we face.
  I am introducing this legislation this afternoon and I ask my 
colleagues to give it careful consideration. It is clearly not partisan 
legislation. Given the current composition of the Supreme Court and the 
two new Justices who have just been added, it is hardly a liberal or 
Democratic court, and it could settle the issue once and for all so our 
country could achieve some comity on this issue and move on and discuss 
other issues.
  I urge my colleagues and everyone else in this great country of ours 
to examine this legislation, see if they wish to support this 
legislation or something close to it, and maybe we can move this kind 
of bill on the floor quickly so we could get the kind of expedited 
review that I think many of us would seek from the one body that would 
have the authority to make such review ultimately, and that is the U.S. 
Supreme Court.
  The bill will be handed to the desk for introduction.
  The PRESIDING OFFICER. The bill will be received and appropriately 

S 2468 IS


2d Session

S. 2468

To provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, and for other purposes.


March 29, 2006

Mr. SCHUMER introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, and for other purposes.