Congressional Budget for the United States Government for Fiscal Year 2007--Continued

CONGRESSIONAL BUDGET FOR THE UNITED STATES GOVERNMENT FOR FISCAL YEAR 2007--Continued

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Mr. DURBIN. First, through the Chair, I commend the Senator from Pennsylvania. As a member of the Senate Judiciary Committee, he has shown extraordinary leadership in convening two separate hearings on this question of the wiretap issue, the first with Attorney General Gonzales which I attended and thought to be one of the more challenging and interesting committee hearings I have ever attended--it went on for a whole day--the second, sadly, was in conflict with another meeting, a Rules Committee on ethics reform and I did not attend it, but he invited constitutional scholars to come and speak to the same issue. Many on Capitol Hill may shy away from controversial issues, particularly if they involve an administration of the same party. I commend the Senator from Pennsylvania for being an exception to the rule on this issue and for speaking up and standing up.

I wish to ask a question. After listening to Attorney General Gonzales' testimony before our committee, it appears that the thrust of the constitutional argument justifying the wiretap goes back to a vote that we share, a vote we both cast in favor of authorizing the use of military force on September 18, 2001. I ask the Senator from Pennsylvania if he believed that in casting his vote for that resolution authorizing force to pursue those responsible for September 11 that he was giving the President authority to wiretap American citizens without obtaining a court order required by the Foreign Intelligence Surveillance Act of 1978?

Mr. SPECTER. No.

Mr. DURBIN. The next question I wish to ask the Senator from Pennsylvania, and I appreciate his forthright response, the majority leader, Senator Frist, came to the Senate a few moments ago and said he believed the wiretap program of President Bush was constitutional and legal.

Does the Senator from Pennsylvania agree with that conclusion?

Mr. SPECTER. I neither agree nor disagree. I do not know. As I said more extensively in the body of my comments, I do not have any basis for knowing, because I do not know what the program does. I think it may be that the program could be structured as going after only al-Qaida conversations. And I would like to see some proof of that. Quite frankly, I would like to see some proof that they have reasonable grounds to think one party or the other is al-Qaida. That is in the body of Senator Feingold's whereas clauses.

It may be that they have been able to take a limited amount of information, destroying the rest, and that it has produced very important results with a minimal incursion. I do not know the answers to those questions. But I certainly think you ought not castigate the President as a criminal until you do know the answers to those questions.

Mr. DURBIN. If the Senator will yield for a further question.

Mr. SPECTER. I do. And I want to thank you for being here in Senator Feingold's stead.

Mr. DURBIN. Well, I am standing here----

Mr. SPECTER. You are a little tougher to debate than he, but I thank you for coming.

Mr. DURBIN. I would like to ask the Senator from Pennsylvania one last question.

When you referred to the suggestions of our colleague, Senator DeWine, on the Judiciary Committee, and other proposals to change the law that might accommodate what we are now seeing in this wiretap program, is that not an admission that what is going on now is violative of law or at least outside the bounds of the laws as written which authorize wiretaps?

Mr. SPECTER. No, I do not think it is an admission because, like consent, it has to be informed. And I do not think he is informed. I do not think anybody is informed. I do not think Senator DeWine intends to make an admission. I think Senator DeWine, in good faith--very good faith--is searching for a way out. And I think he made a significant step forward when his actions resulted in seven members of the Senate Intelligence Committee being briefed. The reason I say ``I think'' is because I do not know what they were told. But I think that is a significant step.

Senator DeWine's proposal of legislation to allow the program to go on for 45 days is no concession. It is going on anyway. His idea to bypass the FISA Court and allow the Administration instead to go to the Intelligence Subcommittee, I think, is not appropriate because the Intelligence Subcommittee does not have the function of a court.

So I think he is doing the best he can. But right now we are flying blind on a great deal of this, and we have to accept very limited representations by the Gang of 8, and now the new Gang of 7. And no matter what, it does not amount to judicial review.

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Mr. DURBIN. Mr. President, I thank Senator Reid for bringing this sad news to the attention of the Senate family. There are many things that divide us, but there are things that unite us. We are united when Members of our Senate go through personal tragedy. Senator Reid knows better than anyone on our side of the aisle the personal sacrifices Senator Inouye has made over the last months and years as his wife has gone through this serious illness.

It is clear, from what he has given of his life, he took his vow very seriously to stand by her in sickness and in health. It is a tribute to this man, his devotion, and to their love which sustained them for 57 years.

I thank the Senator from Nevada for bringing this to our attention. We all join in expressing our sadness at her loss and will stand by Senator Inouye and his family to ask them to try to remember, at this time of loss, those good memories of times together. We hope those memories will sustain their family.

I thank the Senator from Nevada.

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Mr. DURBIN. Thank you very much.

Mr. President, I would like to conclude the matter raised between Senator Specter and myself about the resolution brought to the floor by Senator Feingold.

I heard yesterday that Senator Feingold was going to offer this resolution. I did not realize he would do it today. I have spoken to Senator Feingold, and I believe it is his intention not to bring this to a vote today, as some have suggested, but, rather, to use this as a catalyst to bring about the kinds of hearings and investigations that this Congress owes to the people of the United States on the wiretap program.

I have saluted Senator Specter earlier for his leadership on the Senate Judiciary Committee. I am sorry the Senate Intelligence Committee, given a chance to do the same thing, failed to exercise its oversight responsibility on this same program.

I think it is important, regardless of party affiliation, that we ask the critical constitutional and legal questions about this wiretap program. This resolution by Senator Feingold will be a catalyst for that type of investigation, those types of hearings. Whether that results in a censure of the President or any further action against the President remains to be seen. But it certainly says to the American people, we are not going to ignore what could be one of the most serious constitutional issues to come before this Government in decades.

I have read this resolution Senator Feingold has offered. I agree with Senator Specter, I do not think when we voted to go to war against the Taliban we said to the President that he could ignore the law, that he could go about wiretapping Americans without court approval. That is basic to America.

The President has said over and over publicly, if we are going to wiretap people, we will get court approval. Well, it turns out that is not the case at all. I do not know how often because I have not been briefed on the details, but apparently on many occasions this Government has wiretapped the conversations of American citizens without court approval. The President and the administration have not followed the clear letter of the law. That is an important and serious constitutional question.

I think the resolution being brought to us by Senator Feingold will cause us to look anew at this critically important issue. Whether it results in any action by Congress, as I said, remains to be seen. But I think it is important that we accept this challenge by the Senator from Wisconsin and that hearings be held in the Judiciary Committee, if that is where the resolution is eventually referred, and possibly even in the Intelligence Committee.

I hope the Intelligence Committee will start to move on this on a bipartisan basis. It has historically been a bipartisan committee. But recently in the last few weeks there have been many important votes taken on partisan rollcalls, votes relative to the authority and exercise of that authority by this committee in investigating this Bush administration.

It would be good if the committee could return to its bipartisan ways. I think it would give the institution of the Senate a vote of confidence that we can stand and investigate Presidents of either political party if there is serious and important policy questions to be determined.

I yield the floor.

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