Sen. Specter plans legislation on NSA-surveillance program [priv]

[Declan McCullagh <declan () well com>]

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.

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