The FISA Amendments Act of 2008

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Mr. Specter: Mr. President, I have sought recognition to speak briefly in opposition to the motion to invoke cloture. The amendment which I have filed goes to the heart of the issue on removing liability from the telephone companies to impose retroactive immunity. The amendment which I have filed and has been discussed on the floor of the Senate would substitute the Government for the party defendant, where the Government would have the same defenses--no more, no less.

For example, the telephone companies do not have the defense of governmental immunity; and the Government, when substituted, would not have the defense of governmental immunity. The telephone companies can plead state secrets to foreclose the litigation; and when the Government would be substituted, for example, the Government could assert the doctrine of state secrets in order to foreclose the litigation.

If the motion to invoke cloture is granted, I am advised by the Parliamentarian my amendment would not be germane and, therefore, would be stricken. We went through a long session last year where the argument was made, repeatedly and persuasively, not to invoke cloture-- the argument advanced on this side of the aisle--in order to give Members on this side of the aisle an opportunity to propose their amendments. Now we have the first situation sought to be applied, and it is my hope this body will reject the cloture motion.

There has been very little time spent on this very important subject in this body, and when you have a matter of the importance of retroactive immunity, where you are going to shut off the courts of the United States from hearing cases that are already pending, there ought to be time for consideration of an amendment such as the one Senator Whitehouse and I have offered to substitute the U.S. Government.

The purpose of our amendment is to comport with the basic constitutional provision of separation of powers, which is the cornerstone of the Constitution, and we have found, regrettably, it has been inadequate to have congressional supervision, congressional oversight, because of its ineffectiveness. For example, when the Judiciary Committee seeks to obtain records on the destruction of CIA tapes, you find the administration resisting and the inevitable argument of politics. When the court issues an order, as the Federal Court did last week for a report on the destruction of documents, seeking to find out what happened on the destruction of the CIA documents, the court can't be charged with politics. We find in Rasul, and in other litigation matters, the judicial branch has been effective in maintaining the separation of power.

One further comment. It is a surprise to me that the amendment which I have offered with Senator Whitehouse has been ruled nongermane. I took a look at Webster's International Dictionary and germane is defined as:

closely or significantly related; relevant; pertinent; closely akin.

I consulted with a Parliamentarian and asked why our amendment was ruled as nongermane, and the answer given was because there was no specific statement of the underlying bill on governmental liability. In pursuing the issue with the Parliamentarian, I then said: I am going to seek to change the rules.

It seems to me peculiar, if not absurd, that my amendment, the Specter-Whitehouse amendment, would not be germane under the common meaning of the English language. I said: Suppose we change the rules to provide that it was relevant? And the answer I got, and I don't want to misquote anybody, was that: Yes, that would stand the test of relevancy. As he put it, a more permissive standard.

So then I checked the definition of relevant in Webster's International Dictionary, and it says:

Bearing upon or connected with the matter in hand; to the purpose; pertinent, raise, lift up, syn applicable, germane, appropriate, suitable, fitting.

Well, the key part about the definition of relevant is that one of the synonyms is germane, just as one of the synonyms of germane is relevant. Now, it is a loss to me. I have been here a while, and I have had a hard time understanding the ruling of what is germane, and I have never seen one as close to the core point as putting the Government as a substitute for the telephone companies, but somehow it is not germane.

So I wish to put my colleagues on notice that I intend to try to change the rules. I can't see why one is necessary when Webster's has germane as a substitute for relevant and relevant as a substitute for germane. If the Parliamentarian thinks that relevant is OK, it is, again, hard for me to see why germane is not. A little surprising.

Mr. Dorgan: Mr. President, will the Senator yield for question? I don't want to interrupt his comments.

Mr. Specter: I will.

Mr. Dorgan: Mr. President, morning session is up at 3, and I am scheduled for 15 minutes. I might ask to extend the time. I don't know how much time the Senator is going to use, but I want to make certain I have the opportunity that was previously ordered, for 15 minutes on this side.

The Acting President pro tempore: There is 10 minutes, 12 seconds remaining, and morning business is under the control of the majority.

Mr. Dorgan: Mr. President, how much additional time does the Senator from Pennsylvania need?

Mr. Specter: Less than a minute.

Mr. Dorgan: Let me ask unanimous consent that we extend by 5 minutes the time for morning business so it terminates at 3:05.

The Acting President pro tempore: Without objection, it is so ordered.

Mr. Dorgan: I thank my colleague for his courtesy.

Mr. Specter: I thank the distinguished Senator from North Dakota.

Well, I have made my argument. I think it is important to have a ruling, a vote by this body on whether we are going to apply retroactive immunity to the telephone companies. I said on the floor last week that if my amendment is not adopted, I will support retroactive immunity. I think it is a bad practice, but I think, as bad as that practice is, it would be worse to cut off the information which our intelligence community thinks we need. I think it is not advisable. And when we have a method of having both objectives, that is to have the Government have access to the information and at the same time not impose the cutting off of the judicial system for checks and balances, I think that ought to be adopted.

And further, a final comment on the hard-to-understand definition of germane. The dictionary defines it as being relevant, and the dictionary defines relevant as being germane, with the Parliamentarian giving a supplemental opinion that if the standard was relevance, it would be appropriate to have the amendment.

I thank the Chair, and I yield the floor.

The Acting President pro tempore: The Senator from North Dakota.