Posted on 02/09/2006 6:25:16 AM PST by Cboldt
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 constitutional.
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.
I yield the floor.
Legislation cannot bypass Article II of the Constitution.
Somebody needs to explain to Senator Spector, that Scottish law does not matter here. It is the US Constitution that he took an oath to uphold.
I wonder if GW now wishes that he had backed Toomy instead of this maroon?
When was the last time a panel in Washington, made up of judges or not, looked at something and said, "no, no, that's not OUR jurisdiction'?
Steel Seizure case mentioned can be found here:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=295&invol=476
Ping to Badray
Actally this is an expidited way to get it to SCOTUS which is inevitable anyway.
Balance of power = Congress in charge????
I find it almost laughable that our President has the authority to drop a nuclear weapon on our enemies without Congressional approval, but can't listen in on their phone calls?!?!?!?
Spector can not propose any legislation that contravenes the Constitution. I personally think that jerk should sit down and shut up!
Sounds like he is a member of the Tallyban.
Why would we want to submit the need for covert gathering of information to a world authority? Our President is elected to serve the people and protect the people. This wire tapping misunderstanding is getting just about as silly as the unrest over a cartoon. When do the wise prevail?
Using foreign law if need be.
My bad.....wrong case in previous link......
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
To bring that to a contemporaneous exchange ...
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.
GRAHAM: That's where we're at right now.
GONZALES: I don't believe that's where we're at right now.
GRAHAM: That's where you're at with me.
I propose legislation dissolving the "no-way they can respond to modern technology in time anyway" FISA court.
Oh, and a serious investigation into the traitor/leaker of our nation's security secrets.
Arlen Spector=Backstabbing Rino POS.
The administration should take this immediately to SCOTUS. The legislature can not take away the powers of the president.
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