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 UNDERWHICH 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 HASCEPT -- 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 ORTHREATS 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. 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.