Congressional Record: February 8, 2006 (Senate)
Page S853-S854

                        ELECTRONIC SURVEILLANCE

  Mr. SPECTER. Mr. President, on Monday, the Judiciary Committee held a 
hearing on the administration's electronic surveillance program and we 
dealt solely with the issues of law as to whether the resolution to 
authorize the use of force on September 14 provided authority in 
contradistinction to the Foreign Intelligence Surveillance Act, which 
flatly prohibits any kind of electronic surveillance without a court 
order. Then we got into the issue of the President's inherent powers 
under article II. It is difficult to define those powers without 
knowing more about the program and we do not know about the program. It 
was beyond the scope of our hearing, but it is something that may be 
taken up by the Intelligence Committee.
  But I made a suggestion to the administration in a letter, in which I 
wrote to Attorney General Gonzales and put in the Record at our 
Judiciary Committee hearing, that the administration ought to submit 
this program to the Foreign Intelligence Surveillance Court. They have 
the expertise and they are trustworthy. It is a regrettable fact of 
life in Washington that there are leaks from the Congress and there are 
leaks from the administration, but the Foreign Intelligence 
Surveillance Court has been able to maintain its secrecy. The Attorney 
General said the administration was disinclined to do that.
  In response to the letter, he wrote, a written response, he said that 
they would exercise all of their options. I am now in the process of 
drafting legislation which would call upon the Congress to exercise our 
article I powers under the Constitution to make it more of a matter for 
congressional oversight, but respecting the constitutional powers of 
the President under article I. The Congress has very substantial 
authority. The President has powers under article II; the Congress has 
very substantial powers under article I. In section 8, there are a 
series of provisions which deal with congressional authority on 
military operations. One which hits it right on the head is to make 
rules for the Government and regulations of the land and naval forces. 
That would comprehend what is being done now on the electronic 
surveillance program.
  The thrust of the legislative proposal I am drafting and have talked 
to a number of my colleagues about, with some affirmative responses, is 
to require the administration to take the program to the Foreign 
Intelligence Surveillance Court.
  I think that they ought to do it on their own because I think that 
there are many questions which have been raised by both the Republicans 
and Democrats. We want to be secure and we want the military, the 
administration and the President to have all the tools that they need 
to fight terrorism, but we also want to maintain our civil liberties. 
If that unease would be solved by having the Foreign Intelligence 
Surveillance Court tell the administration that it is constitutional, 
if they say that it is unconstitutional, then there ought to be a 
modification of it so what the administration is doing is 
  This comes squarely within the often-cited concurring opinion of 
Justice Jackson in the Steel Seizure case about the President's 
authority being at its utmost when Congress backs him, on middle ground 
when Congress has not spoken, and weakest when Congress has acted 
oppositely in the field, which I think Congress has done under the 
Foreign Intelligence Surveillance Act because the President's 
congressional authority then is whatever he has minus whatever Congress 
has that is taken away from him.
  As Justice Jackson said, what is involved is the equilibrium of the 
constitutional system. That is a very weighty concept--the equilibrium 
of the constitutional system.
  The legislation I am preparing will set criteria for what ought to be 
done to establish what the Foreign Intelligence Surveillance Court 
should apply in determining whether the administration's program is 
constitutional. The standard of probable cause ought to be the one 
which the Foreign Intelligence Surveillance Court should apply now--not 
the criminal standard, but the one for gathering intelligence. Then 
they ought to weigh and balance the nature of the threat, the scope of 
the program, how many people are being intercepted, what is being done 
with the information, what is being done on minimization--which is the 
phrase that the information is not useful in terms of deleting it or 
getting rid of it--how successful the program has been, if any 
projected terrorist threats have been thwarted, and all factors 
relating to the specifics on the program--its reasons, its rationale 
for existence and precisely what is being undertaken, its success--and 
that the Foreign Intelligence Surveillance Court ought to look to this, 
essentially, prospectively.
  The court does not have punitive powers, and I do not believe that it 
is of matter, except to work from this day forward as to what is being 
done. No one doubts--or at least I do not doubt--the good faith of the 
President, the Attorney General, and the administration on what they 
have done here. But as I said in the hearing, I said to Attorney 
General Gonzales, the administration may be right but, on the other 
hand, they may be wrong.
  The Foreign Intelligence Surveillance Court ought to take a look at 
the program, make a determination from this day forward whether it is 
constitutional, and if it is constitutional, then they ought to, under 
the statute, report back to Congress with their determination as to 
whether it is constitutional.
  The court ought to further make a determination as to whether it 
ought to be modified in some way which would be consistent with what 
the administration wants to accomplish but still be constitutional and 
not an unreasonable invasion of privacy.
  The President has represented that his program is reevaluated every 
45 days. That is in terms of the evaluation of the continuing threat 
and what ought to be done. I think a 45-day evaluation period would be 
in order here as well.
  This question is one which is not going to go away. We had, 
yesterday, the comment by a Republican Member of the House of 
Representatives in the Intelligence Committee who chairs the 
subcommittee that oversees the National Security Agency. There are 
quite a number of people on both sides of the aisle who have expressed 
concerns regarding this program. It is my judgment that having it 
reviewed by the Foreign Intelligence Surveillance Court would 
accomplish all of the objectives, would maintain the secrecy of the 
program, would allow the President to continue it when there has been 
the determination by a court--that is how we determine probable cause 
on search warrants, on arrest warrants, on the activities, the 
traditional way of putting the magistrate, the judicial official 
between the Government and the individual whose privacy rights are 
being involved.

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  I yield the floor.