Background on other developments: http://news.com.com/2100-1028_3-6037145.html In a sign that political pressure from other Republicans is having an effect, the White House on Wednesday disclosed details about its domestic spying program in a secret meeting with members of a House of Representatives intelligence panel. --- http://politechbot.com/docs/specter.statement.nsa.020806.txt MR. SPECTER: (NOT AN OFFICIAL TRANSCRIPT) ON MONDAY, THE JUDICIARY COMMITTEE HELD A HEARING ON THE ADMINISTRATION'S ELECTRONIC SURVEILLANCE PROGRAM. WE DEALT SOLELY WITH THE ISSUES OF LAW AS TO WHETHER THE RESOLUTION TO AUTHORIZE THE USE OF FORCE FOR SEPTEMBER 14 PROVIDED AUTHORITY IN CONTRADISTINCTION TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT WHICH FLATLY PROHIBITS ANY KIND OF ELECTRONIC SURVEILLANCE WITHOUT A COURT ORDER. AND THEN WE GOT INTO THE ISSUE AS TO THE PRESIDENT'S INHERENT POWERS UNDER ARTICLE 2. IT'S DIFFICULT TO DEFINE THOSE POWERS WITHOUT KNOWING MORE ABOUT THE PROGRAM, AND WE DO NOT KNOW ABOUT THE PROGRAM AND IT WAS BEYOND THE SCOPE OF OUR HEARING. BUT IT IS SOMETHING WHICH MAY BE TAKEN UP BY THE INTELLIGENCE COMMITTEE. BUT I MADE A SUGGESTION IN A LETTER 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 THE SECRECY. THE ATTORNEY GENERAL SAID THAT THE ADMINISTRATION WAS DISINCLINED TO DO THAT. IN RESPONSE TO THE LETTER HE WROTE -- THEY WERE GOING TO EXERCISE ALL THEIR OPTIONS. I AM NOW IN THE PROCESS OF DRAFTING LEGISLATION WHICH WOULD CALL ON THE CONGRESS TO EXERCISE OUR ARTICLE 1 POWERS UNDER THE CONSTITUTION TO MAKE IT MORE THAN A MATTER FOR CONGRESSIONAL OVERSIGHT BUT RESPECTING THE CONSTITUTIONAL POWERS OF THE PRESIDENT UNDER ARTICLE 1, THE CONGRESS HAS VERY SUBSTANTIAL AUTHORITY -- THE PRESIDENT'S POWERS UNDER ARTICLE 2. THE CONGRESS HAS VERY SUBSTANTIAL POWERS UNDER ARTICLE 1. AND IN SECTION 8, THERE ARE A SERIES OF PROVISIONS WHICH DEAL WITH CONGRESSIONAL AUTHORITY ON MILITARY OPERATIONS. AND ONE WHICH HITS IT RIGHT ON THE HEAD IS -- KUWAITI -- "TO MAKE RULES FOR THE -- IS, ONE -- QUOTE -- "TO MAKE RULES FOR THE GOVERNMENT IN RESOLUTION FOR THE LAND AND NAVAL FORCES." AND THAT WOULD COMPREHEND WHAT IS BEING DONE NOW ON THE ELECTRONIC SURVEILLANCE PROGRAM. THE THRUST OF THE LEGISLATIVE PROPOSAL WHICH I'M DRAFTING AND HAVE TALKED PRELIMINARILY 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 THEY OUGHT TO DO IT ON THEIR OWN BECAUSE I THINK THERE ARE MANY QUESTIONS WHICH HAVE BEEN RAISED - BY BOTH THE REPUBLICANS AND THE MILITARY AND THE ADMINISTRATION. THE PRESIDENT SHOULD HAVE ALL THE TOOLS HE NEEDS TO FIGHT TERRORISM BUT WE ALSO WANT TO MAINTAIN OUR CIVIL LIBERTIES. IF THAT UNEASE WOULD BE SOLVED BY HAVING THE FOREIGN INTELLIGENCE COURT TELL THE ADMINISTRATION THAT IT IS CONSTITUTIONAL, THAT IF THEY SAY THAT IT IS UNCONSTITUTIONAL, THEN THERE OUGHT TO BE A MODIFICATION OF IT SO THAT WHAT THE ADMINISTRATION IS DOING IS CONSTITUTIONAL. THIS COMES SQUARELY WITHIN THE OFTEN-CITED OPINION OF JUSTICE JACKSON IN THE STEEL SEIZURE CASE ABOUT THE PRESIDENT'S AUTHORITY BEING AT ITS UTMOST WHEN CONGRESS BACKS HIM, IN MIDDLE GROUND WHEN CONGRESS HAS NOT SPOKEN AND AT THE LOWEST WHEN THE CONGRESS HAS ACTED IN THE FIELD, WHICH I THINK CONGRESS HAS DONE UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. THE PRESIDENT'S CONGRESSIONAL AUTHORITY THEN IS WHATEVER HE HAS MINUS WHATEVER CONGRESS HAS AND HAS TAKEN AWAY FROM HIM. AS JUSTICE JACKSON SAYS, WHAT IS INVOLVED IS THE EQUILIBRIUM OF THE CONSTITUTIONAL SYSTEM. THAT'S A VERY WEIGHTY CONCEPT -- THE EQUILIBRIUM OF THE CONSTITUTIONAL SYSTEM. THE LEGISLATION WHICH 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 APPLIES NOW, NOT THE CRIMINAL STANDARD, BUT THE ONE FOR GATHERING INTELLIGENCE. AND 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 MINUTE MINIMIZATION, WHICH IS THE PHRASE, IF THE INFORMATION IS NOT USEFUL IN TERMS OF DELETING IT OR GETTING RID OF IT, HOW SUCCESSFUL THE PROGRAM HAVE 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, 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 A 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, BECAUSE AS I SAID IN THE HEARING, THE STRAIGHT -- I SAID TO ATTORNEY GENERAL GONZALEZ, THEY 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 OR IS NOT CONSTITUTIONAL. THE COURT OUGHT TO FURTHER MAKE A DETERMINATION AS TO WHETHER IT MIGHT 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 JUST YESTERDAY THE COMMENT BY A REPUBLICAN MEMBER OF THE HOUSE OF REPRESENTATIVES IN THE INTELLIGENCE COMMITTEE. THERE ARE QUITE A NUMBER OF PEOPLE ON BOTH SIDES OF THE AISLE WHO HAVE EXPRESSED CONCERNS, AND IT IS MY JUDGMENT THAT HAVING IT REVIEWED BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT COULD 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'S 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. _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2.1.3 : Thu Feb 09 2006 - 01:08:19 PST