Congressional Record: December 5, 2006 (Senate)
Page S11160                      

                             HABEAS CORPUS

  Mr. SPECTER. [...]
  Similarly, it had been my hope that we would have moved on the 
legislation to provide protection for civil liberties on the 
surveillance program put into effect by the President, which is 
designed to protect America from another terrorist attack and to 
balance security interests versus privacy interests.
  When this program was disclosed on December 16 of last year, almost a 
year ago, we moved ahead in the Judiciary Committee to have a series of 
hearings to try to find a way to have judicial review in accordance 
with the tradition and concept in the United States, having the 
impartial magistrate between the Government and the person subject to 
surveillance, to search and seizure, or to wiretapping. The initial 
legislation would have given that authority to the Foreign Intelligence 
Surveillance Court, which was selected because of the expertise that 
court has and because they can maintain secrecy. In my legal opinion, 
there is no doubt that the administration program violates FISA, the 
Foreign Intelligence Surveillance Act. But the President has asserted 
that there was article II power, inherent powers as Commander in Chief, 
which warrants this program without--justifies this program without 
  I cosponsored legislation introduced by the senior Senator from 
California, Mrs. Feinstein, which would extend the time for retroactive 
approval by the FISA court in 3 to 7 days and would increase the 
resources so that according to General Alexander, the head of NSA, 
there were such resources to have individualized warrants for calls 
originated in the United States and going outside the United States. 
According to General Alexander and the National Security 
Administration, and General Hayden his predecessor, there are too many 
calls coming from outside and in to have individualized warrants. But 
it would be an enormous step forward for civil liberties to have the 
individual warrants for calls originating in the United States and 
going out.
  As to the calls originating outside the United States and coming in, 
let's have the judicial determination made as to whether the President 
is correct that he has article II powers. That can only be determined 
by the court, weighing the invasion of privacy on the one hand against 
the interests of security on the other.
  The legislation which I introduced, S. 4051, modifies earlier 
versions, modifies the so-called Feinstein-Specter bill by recognizing 
the changing circumstances where a number of district courts have taken 
up the issue in the U.S. District Court in Detroit to declare the 
surveillance program unconstitutional. It is now in the Sixth Circuit.
  Let the process proceed to have the adjudication as to whether the 
President is right that there are article II powers or whether there is 
a violation.
  The legislation which I have introduced, S. 4051, on November 14, 
provides further for mandatory review by the Supreme Court and 
expedited review. If we would focus on this issue, we could come to 
grips with it and we could legislate. Every day that passes there is 
incursion on civil rights and constitutional rights because there are 
wiretaps which are not supported by affidavit or probable cause and 
court authorization. We have it within our power to alter that today if 
we would come to grips with the issues on all the calls originating in 
the United States and going out and then, to repeat, to allow the court 
to decide whether the President is correct on whether calls outside 
coming in are covered by his article II powers.
  It is my hope that this legislation will be taken up early in the 
next session because we ought to come to grips with the balance of 
rights versus security.