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Mr. Specter (for himself and Mr. Leahy):
S. 185. A bill to restore habeas corpus for those detained by the United States; to the Committee on the Judiciary.
Mr. Specter: Mr. President, I will introduce legislation denominated the Habeas Corpus Restoration Act. Last year, in the Military Commissions Act, the constitutional right of habeas corpus was attempted to be abrogated. I fought to pass an amendment to strike that provision of the Act which was voted 51 to 48. I say "attempted to be abrogated" because, in my legal judgment, that provision in the Act is unconstitutional.
It is hard to see how there can be legislation to eliminate the constitutional right to habeas corpus when the Constitution is explicit that habeas corpus may not be suspended except in time of invasion or rebellion, and we do not have either of those circumstances present, as was conceded by the advocates of the legislation last year to take away the right of habeas corpus.
We have had Supreme Court decisions which have made it plain that habeas corpus is available to noncitizens and that habeas corpus applies to territory controlled by the United States, specifically, including Guantanamo. More recently, however, we had a decision in the U.S. District Court for the District of Columbia applying the habeas corpus jurisdiction stripping provision of the Military Commissions Act, but I believe we will see the appellate courts strike down this legislative provision.
The contention that the gravamen or the substance of habeas corpus is provided by the statutory review to the Circuit Court of the District of Columbia is fallacious on its face. All the statute does is allow for a review of the regularity of proceedings. In my prepared statement, I cite an example of litigation before a federal district court, where a person charged with consorting with al-Qaida asked: "What was the name of the person? He asked: What was the name of the person I'm supposed to have consorted with? And the Presiding Officer said: I don't know, which, according to the opinion, brought uproarious laughter from the audience. Here a man is charged with consorting with al-Qaida, and they cannot even tell him the name of the person he is alleged to have consorted with.
The hearing before the Judiciary Committee, which I chaired, contained expansive, detailed evidence about the proceedings under the review provisions in Guantanamo, which are grossly, totally insufficient.
The New York Times had an extensive article on this subject, starting on the front page, last Sunday, and continuing on a full page on the back page about what is happening at Guantanamo. It is hard to see how in America, or in a jurisdiction controlled by the United States, these proceedings could substitute for even rudimentary due process of law.
As I might add, the Habeas Corpus Restoration Act was introduced in the 109th Congress. I offered the bill on behalf of myself and Senator Leahy. Consequently, we had this bill listed in the 109th Congress as a Specter-Leahy bill, and with Senator Leahy's consent, it is denominated as the Specter-Leahy bill again in the 110th Congress.
Mr. President, I ask unanimous consent that my prepared text be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Mr. Specter: Mr. President, I seek recognition today to introduce the "Habeas Corpus Restoration Act of 2007." Last September, during debate on the Military Commissions Act, I introduced an amendment to strike section 7 of the Act and thereby preserve the constitutional right of habeas corpus for the approximately 450 individuals detained at Guantanamo Bay. Because my amendment was not agreed to, by a narrow vote of 48-51, the right to the writ of habeas corpus was denied to those detainees. The privilege of the writ of habeas corpus has therefore been suspended.
On December 5, with my colleague Senator Leahy, I introduced the "Habeas Corpus Restoration Act of 2006" to restore the writ of habeas corpus and bring this country back into compliance with the United States Constitution. After all, the United States Constitution is unambiguous in Article 1, Section 9, Clause 2, where it states: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Today, along with Senator Leahy, I am reintroducing this important legislation.
The Habeas Corpus Restoration Act is very simple: It strikes the federal habeas corpus limitations imposed by the Military Commissions Act and the Detainee Treatment Act. In so doing, the bill affords aliens detained by the United States within its territorial jurisdiction, including those detained at the Guantanamo Bay Naval Base, the right to challenge their detention and military commission trial procedures by an application for writ of habeas corpus. It will ensure that the constitutional right of habeas corpus is afforded to all individuals detained by the United States government.
The Framers explicitly intended to extend habeas protections to all, absent a case of rebellion, invasion, or the interest of public safety. This principle was ratified by the Supreme Court in the case of Hamdi v. Rumsfeld, where Justice O'Connor stated "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States."
This protection extends to those detained in Guantanamo since it is a facility exclusively under the control of the United States. In Rasul v. Bush, the Supreme Court held that habeas corpus rights apply even to aliens held at Guantanamo Bay. One does not need to be a United States citizen to be afforded basic constitutional habeas corpus rights and the U.S. Constitution draws no distinction between American citizens and aliens held in U.S. custody.
Although some argue that Combatant Status Review Tribunals, commonly referred to as "CSRTs," are an adequate and effective means to challenge detention in accordance with the Supreme Court's decision in Swain v. Pressley, I couldn't disagree more. In my view, CSRTs are a sham. We have learned a great deal about the cursory review provided by these tribunals at Guantanamo Bay. They operate with very little information. Somebody is picked up on the battlefield. There is no record preserved as to what that individual did. If there was a weapon involved, it was collected and mixed in with many other weapons. There is no chain of custody or even a record of what was seized. In sum, CSRTs are nothing more than a one-sided interrogation by the military tribunal members. These proceedings simply do not comport with basic fairness because the individuals detained do not have the right to know what evidence there is against them. As Justice O'Connor wrote in her plurality opinion in the Hamdi case, "[a]n interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker." It is essential that we provide an adequate means to evaluate the legality of an individual's continued detention.
Typically, the CSRT will advise the detainee that the evidence against them is classified and restrict access. The U.S. District Court in the In re Guantanamo case criticized the manner in which the CSRT required detainees to answer allegations based on information that cannot be disclosed. In a comical scene during the hearing, a detainee advised the tribunal that he could not answer an allegation that he had associated with a known al Qaida operative because the tribunal would not provide the name of the alleged operative. Since the tribunal would not even provide the name of the operative, the detainee could not answer even the most basic of allegations. While laughter filled the courtroom at the time when the detainee could not answer this simple allegation, we should not forget the seriousness of this process and the manner in which we are treating detainees of the United States.
The Military Commission Act's habeas corpus provisions were debated at a Senate Judiciary Committee hearing held on September 25, 2006. At the hearing, I heard from a distinguished and varied panel of witnesses, including the attorney who represented Hamdan before the Supreme Court. Perhaps most compelling during the hearing was the testimony of the former U.S. Attorney for the Northern District of Illinois, Thomas Sullivan, who has been to Guantanamo on many occasions and has represented many detainees. Mr. Sullivan was especially compelling when he made reference to a number of individual cases where the proceedings before the CSRT were completely insufficient. He cited hearings where individuals were summoned before the tribunal, but did not speak the language, did not have an attorney, did not have access to the information which was presented against them, and continued to be detained. These individuals either did not know what their charges were, or those charges of which they were aware were vague and illusory. For example, in the case of Abdul Hadi al Siba'i, Mr. Sullivan described how his client had been returned to Saudi Arabia after several months of detainment and without a trial or any notice, compensation, or apology. One can only suspect that the United States government understood that the continued detainment of this particular individual was wrong and would expose weaknesses at trial.
The failure to afford habeas review rights to detainees has concerned Kenneth Starr, former Solicitor General and U.S. Court of Appeals Judge for the District of Columbia. In a letter directed to me as Judiciary Chairman, Mr. Starr expressed his concern "about the limitations on writ of habeas corpus contained in the comprehensive military commissions bill."
If Justice O'Connor feels that detainees have the right to habeas review, but we are denying them this avenue of review, how are detainees supposed to rebut facts that they are not allowed to confront? This is why federal courts should be open to hear habeas petitions of these detainees. The Supreme Court is clear, and we should apply this precedent to the current situation involving detainees at Guantanamo Bay.
On the recent 5-year anniversary of 9/11, President Bush repeated his commitment to bring terrorists to justice. However, statistics tell us that most of the terrorists at Guantanamo will never see the inside of a courtroom. Hundreds will be held indefinitely. Of the over 400 detainees who remain at Guantanamo, the Pentagon says another 110 have been labeled as "ready to release." But the real number we need to look at is the remaining 325 or so detainees. How many will face trial? Media reports citing Pentagon sources suggest that only approximately 70 detainees will face trial.
This leaves approximately 250 detainees--more than half of those still at Guantanamo--who will be held indefinitely simply because the United States considers them to be too dangerous or in possession of sensitive intelligence information. These detainees will have no ability to challenge their confinement. My bill will ensure these individuals held in U.S. custody will be afforded the basic constitutional right to petition for habeas corpus review.
The short history of the Military Commissions Act underscores the need for this legislation. The day after the Act became law, the Justice Department filed notices in each of the 181 Guantanamo habeas cases pending before the United States District Court for the District of Columbia, highlighting the jurisdiction-stripping and retroactivity provisions of the Act. In at least one noteworthy case, the District Court has already agreed that it now lacks authority to hear such a habeas petition.
On December 13, 2006, Judge James Robertson dismissed the habeas petition of Salim Ahmed Hamdan--of Hamdan v. Rumsfeld fame--for lack of subject matter jurisdiction. While I disagree with Judge Robertson's conclusion that Hamdan has "no constitutional entitlement to habeas" because he was detained in Guantanamo rather than inside the United States, this conclusion demonstrates the lack of judicial recourse available to such detainees. Of course, the Military Commissions Act is not strictly limited to those held in Guantanamo. In another case, on November 13, 2006, the Department of Justice filed a motion with the U.S. Court of Appeals for the Fourth Circuit to dismiss the habeas petition of alleged enemy combatant Ali Saleh Kahlah al-Marri. Unlike Hamdan and other Guantanamo detainees, al-Marri has been detained inside the United States. While we could simply wait for the Supreme Court to rule on the constitutionality of denying habeas rights to such detainees, I believe the United States Congress has an obligation to act now and reverse this wrong.
There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Habeas Corpus Restoration Act of 2007".
SEC. 2. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY THE UNITED STATES.
(a) In General.--Section 2241 of title 28, United States Code, is amended by striking subsection (e).
(b) Title 10.--Section 950j of title 10, United States Code, is amended by striking subsection (b) and inserting the following:
"(b) Limited Review of Military Commission Procedures and Actions.--Except as otherwise provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.".
SEC. 3. EFFECTIVE DATE AND APPLICABILITY.
The amendments made by this Act shall-- (1) take effect on the date of the enactment of this Act;
and
(2) apply to any case that is pending on or after the date of enactment of this Act.
Mr. Leahy: Mr. President, on the first day of this new Congress, I join Senator Specter to reintroduce a bill to restore the Great Writ of habeas corpus, a cornerstone of American liberty since the founding of this Nation. The Habeas Corpus Restoration Act of 2007 bill continues our efforts to amend last year's Military Commissions Act, to right a wrong and to restore a basic protection to American law. This is an issue on which we continue to work together and urge Senators on both sides of the aisle to join with us.
As Justice Scalia wrote in the Hamdi case: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." The remedy that secures that most basic of freedoms is habeas corpus. It provides a check against arbitrary detentions and constitutional violations. It guarantees an opportunity to go to court, with the aid of a lawyer, to prove one's innocence. This fundamental protection was rolled back in an unprecedented and unnecessary way in the run up to last fall's election by passage of the Military Commissions Act.
The Military Commissions Act eliminated that right, permanently, for any non-citizen determined to be an enemy combatant, or even "awaiting" such a determination. That includes the approximately 12 million lawful permanent residents in the United States today, people who work and pay taxes in America and are lawful residents. This new law means that any of these people can be detained, forever, without any ability to challenge their detention Federal court--or anywhere else--simply on the Government's say-so that they are awaiting determination whether they are enemy combatants.
I deeply regret that Senator Specter and I were unsuccessful in our efforts to stop this injustice when the President and the Republican leadership insisted on rushing the Military Commissions Act through Congress in the weeks before the recent elections. We proposed an amendment that would have removed the habeas-stripping provision from the Military Commissions Act. We fell just three votes short in those political charged days. It is my hope that the new Senate and new Congress will reconsider this matter, restore this fundamental protection and revitalize our tradition of checks and balances.
Giving Government such raw, unfettered power as this law does should concern every American. Last fall I spelled out a nightmare scenario about a hard-working legal permanent resident who makes an innocent donation to, among other charities, a Muslim charity that the Government secretly suspects might be a source of funding for critics of the United States Government. I suggested that, on the basis of this donation and perhaps a report of "suspicious behavior" from an overzealous neighbor, the permanent resident could be brought in for questioning, denied a lawyer, confined, and even tortured. Such a person would have no recourse in the courts for years, for decades, forever.
Many people viewed this kind of nightmare scenario as fanciful, just the rhetoric of a politician. It was not. It is all spelled out clearly in the language of the law that this body passed. In November, the scenario I spelled out was confirmed by the Department of Justice itself in a legal brief submitted in federal court in Virginia. The Justice Department, in a brief to dismiss a detainee's habeas case, said that the Military Commissions Act allows the Government to detain any non-citizen designated an enemy combatant without giving that person any ability to challenge his detention in court. This is true, the Justice Department said, even for someone arrested and imprisoned in the United States. The Washington Post wrote that the brief "raises the possibility that any of the millions of immigrants living in the United States could be subject to indefinite detention if they are accused of ties to terrorist groups."
In fact, the situation is even more stark than The Washington Post story suggested. The Justice Department's brief says that the Government can detain any non-citizen declared to be an enemy combatant. But the law this Congress passed says the Government need not even make that declaration: They can hold people indefinitely who are awaiting determination whether or not they are enemy combatants.
It gets worse. Republican leaders in the Senate followed the White House's lead and greatly expanded the definition of "enemy combatants" in the dark of night in the final days before the bill's passage, so that enemy combatants need not be soldiers on any battlefield. They can be people who donate small amounts of money, or people that any group of decision-makers selected by the President decides to call enemy combatants. The possibilities are chilling.
The Administration has made it clear that they intend to use every expansive definition and unchecked power given to them by the new law. November's Justice Department brief made clear that any of our legal immigrants could be held indefinitely without recourse in court. Earlier in November, the Justice Department went to court to say that detainees who had been held in secret CIA prisons could not even meet with lawyers because they might tell their lawyers about the cruel interrogation techniques used against them. In other words, if our Government tortures somebody, that person loses his right to a lawyer because he might tell the lawyer about having been tortured. A law professor was quoted as saying about the Government's position in that case: "Kafka-esque doesn't do it justice. This is `Alice in Wonderland.' "
We have eliminated basic legal and human rights for the 12 million lawful permanent residents who live and work among us, to say nothing of the millions of other legal immigrants and visitors who we welcome to our shores each year. We have removed a vital check that our legal system provides against the government arbitrarily detaining people for life without charge. We may well have also made many of our remaining limits against torture and cruel and inhuman treatment obsolete because they are unenforceable. We have removed the mechanism the Constitution provides to check government overreaching and lawlessness.
This is wrong. It is unconstitutional. It is un-American. It is designed to ensure that the Bush-Cheney Administration will never again be embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power. The conservative Supreme Court, with seven of its nine members appointed by Republican Presidents, has been the only check on this Administration's lawlessness. Certainly the last Congress did not do it. With passage of the Military Commissions Act, the Republican Congress completed the job of eviscerating its role as a check and balance on the Administration.
Some Senators uneasy about the Military Commissions Act's disastrous habeas provision took solace in the thought that it would be struck down by the courts. Instead, the first court to consider that provision, a federal court in the District of Columbia, upheld the provision. We should not outsource our moral, legal and constitutional responsibility to the courts. Congress must be accountable for its actions and we should act to right this wrong.
Abolishing habeas corpus for anyone who the Government thinks might have assisted enemies of the United States is unnecessary and morally wrong. It is a betrayal of the most basic values of freedom for which America stands. It makes a mockery of the administration's lofty rhetoric about exporting freedom across the globe.
We should take steps to ensure that our enemies can be brought to justice efficiently and quickly. I introduced a bill to do that back in 2002, as did Senator Specter, when we each proposed a set of laws to establish military commissions. The Bush-Cheney Administration rejected our efforts and designed a regime the United States Supreme Court determined to be unlawful. Establishing appropriate military commissions is not the question. We all agree to do that. What we need to revisit is the suspension of the writ of habeas corpus for millions of legal immigrants and others, denying their right to challenge indefinite detainment on the, government's say-so.
It is from strength that America should defend our values and our Constitution. It takes commitment to those values to demand accountability from the Government. In standing up for American values and security, I will keep working on this issue until we restore the checks and balances that are fundamental to preserving the liberties that define us as a nation. We can ensure our security without giving up our liberty.
By Mr. Specter:
Mr. Specter: Mr. President, the legislation which I am introducing is the Attorney-Client Privilege Protection Act. This legislation was previously introduced in the 109th Congress.
In 2003, the Department of Justice adopted the provisions of the so-called Thompson Memorandum, which allowed prosecutors to request that companies under investigation waive their attorney-client privilege, and that, absent such a waiver, prosecutors may consider the company's refusal to waive privilege in the charging process. As a result, the legal and business community complained that, if the attorney-client privilege is not waived, the corporation and individuals may get a stiffer charge.
The Department of Justice has recently revised the Thompson Memorandum, with Deputy Attorney General McNulty substituting what is now known as the McNulty Memorandum. Prior to the release of the McNulty Memorandum, I had a number of discussions with Department of Justice officials, and I thank the Department of Justice for the effort which they have made, but it is not sufficient. The new memorandum is inadequate in its protection of the attorney-client privilege.
Although the McNulty Memorandum is inadequate in failing to protect attorney-client privilege, it does improve another part of the Department of Justice's prior procedure under the Thompson Memorandum, which effectively denied the payment of counsel fees so that people who were charged were unable to defend themselves without bankrupting themselves in defense. That provision of the earlier Thompson Memorandum was declared unconstitutional in a case in the Southern District of New York.
Mr. President, again, I ask unanimous consent that the full text of my statement be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Mr. Specter: Mr. President, I seek recognition today to introduce the "Attorney-Client Privilege Protection Act of 2007," which remains necessary despite Deputy Attorney General Paul McNulty's issuance of a new set of corporate prosecution guidelines on December 12 of last year. Although the new McNulty memorandum, which replaces the memorandum issued by former Deputy Attorney General Larry Thompson, makes some improvements, the revision continues to erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied.
This bill will protect the sanctity of the attorney-client relationship by prohibiting federal prosecutors and investigators from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement. This bill will hopefully force the Department of Justice to issue a meaningful change to its corporate charging policies beyond the changes in the McNulty Memorandum, which came "a day late and a dollar short" according to Frederick Krebs, the president of the Association of Corporate Counsel.
There is no need to wait to see how the McNulty memorandum will operate in practice. The flaws in that memorandum are already apparent. Moreover, before the issuance of the McNulty memorandum last month, the Thompson memorandum has been undermining the attorney-client relationship in the corporate context for nearly 4 years. In January 2003, then- Deputy Attorney General Larry Thompson issued a memorandum to all Justice Department components throughout the United States entitled "Principles of Federal Prosecution of Business Organizations." This memorandum, which was prepared on the heels of the establishment of the President's Corporate Fraud Task Force, set forth various factors for federal prosecutors to consider when deciding to prosecute corporations or other business organizations. The so-called "Thompson memorandum" lists a corporation's "cooperation and voluntary disclosure" as one of the chief factors to be considered in making a charging decision.
Just as the Thompson memorandum was issued with laudable goals in mind, the McNulty memorandum was, no doubt, the product of good intentions. Nevertheless, it continues to threaten the viability of the attorney-client privilege in business organizations by allowing prosecutors to request privilege waiver upon a finding of "legitimate need"--a standard that should guide the most basic of prosecutorial requests, not sensitive requests for privileged information.
Just as the standard is inadequate, so is the level of internal review. Although the McNulty memorandum establishes some internal review for such waiver requests, it does so in a way that diminishes the importance of a corporate client's ability to communicate with its lawyers. The memo creates two different categories of privileged information and provides very little protection to client communications to the attorney while providing significant protection and DOJ internal review for attorney communications to the client. The memo identifies the two subcategories of privileged information as: (1) "purely factual information," which consists of witness statements, interview memoranda, factual chronologies and summaries, and reports containing investigative facts documented by counsel; and (2) attorney advice to the client, including attorney notes, memoranda, and notes.
The first category of information, formally labeled Category 1 information by DOJ, may be requested with approval at the U.S. Attorney-level with consultation with the Assistant Attorney General for the Criminal Division. The consultation requirement is not defined in any way in the memo. By failing to define what it means "to consult" with the Assistant Attorney General, the McNulty memo fails to say whether the Assistant Attorney General can overrule the U.S. Attorney's decision. Unless there is a meaningful review of the U.S. Attorney's decision, it is difficult to see how the McNulty memo provides better safeguards for Category 1 information than the interim-McCallum memo, issued in October 2005, which mandated a U.S. Attorney-level "written waiver review process" for all attorney client privilege waiver requests.
As noted above, the new McNulty memo does provide greater protections for attorney advice and communication to the client, which the memo labels "Category 2" information. The McNulty memo protects Category 2 information in the first instance by making clear that it may be sought only if the prosecutor thinks Category 1 information provides an incomplete basis for the investigation. If such a request is deemed necessary, the request for Category 2 information must be approved by the Deputy Attorney General.
Although the McNulty memo provides greater protection for Category 2 information, the memo does not explain why such information will ever be needed by prosecutors outside of attorney advice in furtherance of a crime or fraud or where the advice is subject to an advice of counsel defense, both of which are expressly exempted from the waiver request process outlined in the memorandum. Thus, the only two types of attorney advice that are likely to be relevant in a criminal investigation are exempted from the memo's coverage. With that exception, I fail to see why Category 2 information is needed at all. Prosecutors do not need to know what attorneys are advising their clients unless the advice is in furtherance of a crime or the client puts the advice in issue by raising it as a defense.
No less than the Thompson memo, the new McNulty memo discourages corporate employees from having frank conversations with lawyers, which makes it difficult for companies who desire to prevent possible corruption from making appropriate remedies. The Department of Justice will not prevent corporate misconduct if it continues to inadvertently discourage the types of internal investigations and dialogues corporate officials need to detect and prevent corporate fraud.
In the next rewrite of its corporate prosecution guidelines, the Administration needs to look in the mirror. If the President refused to disclose documents or information after invoking a claim of executive privilege, it would not consider itself to be "uncooperative." Rather, the executive would simply be doing its job in representing a client. Yet, when the tables are turned, the Justice Department has memorialized a policy instructing its prosecutors to discourage attorneys from doing their job effectively.
The right to counsel is too important to be passed over for prosecutorial convenience. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, "the attorney- client privilege is the oldest of the privileges for confidential communications known to the common law." When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney- client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that value of legal advice and advocacy depends on the lawyer having been fully informed by the client.
As a former prosecutor, I am acutely aware of the enormous power and tools a prosecutor has at his or her disposal. As former Supreme Court Justice and then Attorney-General Robert Jackson stated in his 1940 speech to U.S. Attorneys, "The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations." Thus, the federal prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, or McNulty memorandum. I see no need to have the Justice Department publicly express a policy that encourages waiver of attorney- client privilege, especially where the policy is backed by the heavy hammer of possible criminal charges. Cases should be prosecuted based on their merits, not based on how well an organization works with the prosecutor. As Justice Jackson warned in the same speech, "the most dangerous power of the prosecutor [is] that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted."
Just as the Holder and Thompson memoranda before it, the McNulty memorandum embodies bad public policy by empowering federal prosecutors at the expense of the attorney-client relationship. Consequently, I echo the comments of the following organizations and individuals who have criticized the McNulty memorandum:
"The Justice Department's new corporate charging guidelines for federal prosecutors fall far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product, and employee protections during government investigations."
--Karen Mathis, ABA President.
"While containing some improvements, this new policy does not adequately protect the right to attorney-client privilege, and unwisely ignores many of the recommendations of former senior Justice Department officials, the American Bar Association, and a massive coalition of some of the nation's most prominent business, legal, and civil rights groups."
--Stanton Anderson, U.S. Chamber of Commerce.
"The McNulty Memorandum still falls short of protecting the attorney-client privilege, and the related work product doctrine, which derives from it."
--Martin Pinales, President, National Association of Criminal Defense Lawyers.
"[T]his memo is a day late and a dollar short. Asking prosecutors to get permission before formally requesting that companies waive their attorney-client privilege will not put an end to the `culture of waiver' that exists within DOJ. Our research shows that more often than not, requests for waiver are not asked for outright, but are coercively inferred."
-- Frederick Krebs, President, Association of Corporate Counsel.
"Deputy Attorney General Paul McNulty's memorandum is a disappointment. It perpetuates the dynamic that compels companies to "voluntarily" waive their rights in order to get favorable treatment or to avoid the death penalty of a federal indictment."
--Caroline Fredrickson, Director, ACLU Washington legislative office; George Landrith, President, Frontiers of Freedom; Stephanie A. Martz, Director, White Collar Crime Project, National Association of Criminal Defense Lawyers; Daniel J. Popeo, Chairman, Washington Legal Foundation, in a letter to the editor of USA Today.
My bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the United States government in any criminal or civil case to demand, request or condition treatment on the disclosure of any communication protected by the attorney- client privilege or attorney work product. The bill would also prohibit government lawyers and agents from conditioning any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement.
While I am glad that the Justice Department revised the Thompson memorandum, I am hopeful that the Department will act again to reform the McNulty memorandum. In the absence of such action, this legislation is needed to ensure that basic protections of the attorney-client relationship are preserved.
I ask unanimous consent that the text of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Attorney-Client Privilege Protection Act of 2007".
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Justice is served when all parties to litigation are represented by experienced diligent counsel.
(2) Protecting attorney-client privileged communications from compelled disclosure fosters voluntary compliance with the law.
(3) To serve the purpose of the attorney-client privilege, attorneys and clients must have a degree of confidence that they will not be required to disclose privileged communications.
(4) The ability of an organization to have effective compliance programs and to conduct comprehensive internal investigations is enhanced when there is clarity and consistency regarding the attorney-client privilege.
(5) Prosecutors, investigators, enforcement officials, and other officers or employees of Government agencies have been able to, and can continue to, conduct their work while respecting attorney-client and work product protections and the rights of individuals, including seeking and discovering facts crucial to the investigation and prosecution of organizations.
(6) Despite the existence of these legitimate tools, the Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney- client privilege and work product protections to avoid indictment or other sanctions.
(7) An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute the charges against it at trial.
(8) Waiver demands and other tactics of Government agencies are encroaching on the constitutional rights and other legal protections of employees.
(9) The attorney-client privilege, work product doctrine, and payment of counsel fees shall not be used as devices to conceal wrongdoing or to cloak advice on evading the law.
(b)Purpose. --It is the purpose of this Act to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of such an organization.
SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR ADVANCEMENT OF COUNSEL FEES AS ELEMENTS OF COOPERATION.
(a) In General.--Chapter 201 of title 18, United States Code, is amended by inserting after section 3013 the following:
Sec. 3014. Preservation of fundamental legal protections and rights in the context of investigations and enforcement matters regarding organizations
(a) Definitions.--In this section:
(1) Attorney-client privilege.--The term `attorney-client privilege' means the attorney-client privilege as governed by the principles of the common law, as they may be interpreted by the courts of the United States in the light of reason and experience, and the principles of article V of the Federal Rules of Evidence.
(2) Attorney work product.--The term `attorney work product' means materials prepared by or at the direction of an attorney in anticipation of litigation, particularly any such materials that contain a mental impression, conclusion, opinion, or legal theory of that attorney.
(b) In General.--In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United States shall not--
(1) demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney- client privilege or any attorney work product;
(2) condition a civil or criminal charging decision relating to a organization, or person affiliated with that organization, on, or use as a factor in determining whether an organization, or person affiliated with that organization, is cooperating with the Government--
(A) any valid assertion of the attorney-client privilege or privilege for attorney work product;
(B) the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of that organization;
(C) the entry into a joint defense, information sharing, or common interest agreement with an employee of that organization if the organization determines it has a common interest in defending against the investigation or enforcement matter;
(D) the sharing of information relevant to the investigation or enforcement matter with an employee of that organization; or
(E) a failure to terminate the employment of or otherwise sanction any employee of that organization because of the decision by that employee to exercise the constitutional rights or other legal protections of that employee in response to a Government request; or
(3) demand or request that an organization, or person affiliated with that organization, not take any action described in paragraph (2).
(c) Inapplicability.--Nothing in this Act shall prohibit an agent or attorney of the United States from requesting or seeking any communication or material that such agent or attorney reasonably believes is not entitled to protection under the attorney-client privilege or attorney work product doctrine.
(d) Voluntary Disclosures.--Nothing in this Act is intended to prohibit an organization from making, or an agent or attorney of the United States from accepting, a voluntary and unsolicited offer to share the internal investigation materials of such organization.".
(b) Conforming Amendment.--The table of sections for chapter 201 of title 18, United States Code, is amended by adding at the end the following:
3014. Preservation of fundamental legal protections and rights in the context of investigations and enforcement matters regarding organizations.".
By Mr. Specter:
S. 187. A bill to provide sufficient resources to permit electronic surveillance of United States persons for foreign intelligence purposes to be conducted pursuant to individualized court-issued orders for calls originating in the United States, to provide additional resources to enhance oversight and streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, to ensure review of the Terrorist Surveillance Program by the United States Supreme Court, and for other purposes; to the Committee on the Judiciary.
Mr. Specter: Mr. President, I am reintroducing the text of S. 4051, which I originally introduced on November 14 of last year. And the title articulates it in a succinct way, so I will read that. It is: a bill to provide sufficient resources to permit electronic surveillance of United States persons for foreign intelligence purposes to be conducted pursuant to individualized court-issued warrants for calls originating in the United States, to provide additional resources to enhance oversight and streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and to ensure review of the Terrorist Surveillance Program by the United States Supreme Court.
I made a number of efforts in the 109th Congress to subject the President's surveillance program to judicial review in accordance with the existing law that a search-and-seizure warrant or a wiretap ought not to be issued without a judge making a finding of probable cause and authorizing that kind of a search and seizure or that kind of a wiretap.
Without going into the entire history, that bill was refined to the point where it is articulated in S. 4051 of the 109th Congress, which would provide for individualized warrants for calls originating in the United States and going out. That can be accomplished, according to the CIA, if there are additional resources, which this bill provides, and if the time for retroactive approval is extended from 3 days to 7 days.
With respect to calls originating outside the United States and coming in, we are advised there are simply too many of those to cover, so that on those calls the bill would expedite the judicial review which is currently in process.
A Federal court in Detroit has declared the President's program unconstitutional, and it is now pending in the Sixth Circuit. This bill would mandate review by the Supreme Court of the United States and would put review in the Federal courts on an accelerated timetable.
There are objections to proceeding with legislation along this line because of an interest in having hearings. Well, we have had a whole series of hearings, and the administration has refused to tell the Judiciary Committee the details of the program. Under our division of authority, it is the Intelligence Committee which has jurisdiction over this kind of a program.
But, we could proceed with hearings and still enact legislation which would provide constitutional protection for calls originating in the United States, which is the more serious category. Citizens here, people here in the United States, would have individual warrants and a judicial determination of probable cause before the surveillance and the wiretaps were put into effect.
Meanwhile, the program goes on. It has been going on since late 2001. It has been known to the public since December 16, 2005. And each day that passes, there are more taps, there are more searches and seizures, there is more surveillance, which may not comport with constitutional provisions.
There may be the motivation to show that the President has broken the law. And there is no doubt that the surveillance program does violate the Foreign Intelligence Surveillance Act of 1978. But the President contends that he has inherent article II power as Commander in Chief which supersedes the statute. And he may be right about that. But only a court can determine. And under the existing standards, the court must make a determination of the nature of the invasion of privacy contrasted with the importance for the public welfare of providing security. That is a judicial function.
It seems to me that where you have an avenue to have probable cause established in the traditional way on calls going out of the United States, we ought to utilize it. We ought not to have that program continue in effect without having that kind of constitutional procedure.
And then, as to calls originating outside of the United States, if the President is right, that can be determined by the courts. Let that proceed in that manner. And, the justification for delay--that we need to show the President of the United States has violated the law--is a wholly insufficient justification to withhold legislation that would be a major improvement to this surveillance program.
We can conclude, in my view, that he has violated FISA. But to repeat--and I do not like to repeat--he may have the constitutional authority for the surveillance program, but that has to be determined by a judicial proceeding.
Mr. President, I ask unanimous consent that a copy of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the "Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2007".
SEC. 101. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) Authority for Additional Judges.--Section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
(1) by inserting "(1)" after "(a)";
(2) in paragraph (1), as so designated, by inserting "at least" before "seven of the United States judicial circuits";
(3) by designating the second sentence as paragraph (4) and indenting such paragraph, as so designated, accordingly; and
(4) by inserting after paragraph (1), as so designated, the following new paragraph:
(2) In addition to the judges designated under paragraph (1), the Chief Justice of the United States may designate as judges of the court established by paragraph (1) such judges appointed under Article III of the Constitution of the United States as the Chief Justice determines appropriate in order to provide for the prompt and timely consideration under section 105 of applications under section 104 for electronic surveillance under this title. Any judge designated under this paragraph shall be designated publicly.".
(b) Consideration of Emergency Applications.--Such section is further amended by inserting after paragraph (2), as added by subsection (a) of this section, the following new paragraph:
(3) A judge of the court established by paragraph (1) shall make a determination to approve, deny, or seek modification of an application submitted under section subsection (f) or (g) of section 105 not later than 24 hours after the receipt of such application by the court.".
SEC. 102. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) Office of Intelligence Policy and Review.--
(1) Additional personnel.--The Office of Intelligence Policy and Review of the Department of Justice is authorized such additional personnel, including not fewer than 21 full- time attorneys, as may be necessary to carry out the prompt and timely preparation, modification, and review of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for orders under section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance for foreign intelligence purposes.
(2) Assignment.--The Attorney General shall assign personnel authorized by paragraph (1) to and among appropriate offices of the National Security Agency in order that such personnel may directly assist personnel of the Agency in preparing applications described in that paragraph.
(b) Federal Bureau of Investigation.--
(1) Additional legal and other personnel.--The National Security Branch of the Federal Bureau of Investigation is authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(2) Assignment.--The Director of the Federal Bureau of Investigation shall assign personnel authorized by paragraph (1) to and among the field offices of the Federal Bureau of Investigation in order that such personnel may directly assist personnel of the Bureau in such field offices in preparing applications described in that paragraph.
(c) Additional Legal and Other Personnel for National Security Agency.--The National Security Agency is authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(d) Additional Legal and Other Personnel for Foreign Intelligence Surveillance Court.--There is authorized for the Foreign Intelligence Surveillance Court such additional personnel (other than judges) as may be necessary to facilitate the prompt and timely consideration by that Court of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes. Personnel authorized by this paragraph shall perform such duties relating to the consideration of such applications as that Court shall direct.
(e) Supplement Not Supplant.--The personnel authorized by this section are in addition to any other personnel authorized by law.
SEC. 103. TRAINING OF FEDERAL BUREAU OF INVESTIGATION AND NATIONAL SECURITY AGENCY PERSONNEL IN FOREIGN INTELLIGENCE SURVEILLANCE MATTERS.
The Director of the Federal Bureau of Investigation and the Director of the National Security Agency shall each, in consultation with the Attorney General--
(1) develop regulations establishing procedures for conducting and seeking approval of electronic surveillance on an emergency basis, and for preparing and properly submitting and receiving applications and orders, under sections 104 and 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804 and 1805); and
(2) prescribe related training for the personnel of the applicable agency.
SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(f)) is amended by striking "72 hours" both places it appears and inserting "168 hours".
SEC. 202. ACQUISITION OF FOREIGN-FOREIGN COMMUNICATIONS.
(a) In General.--Notwithstanding any other provision of this Act or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), no court order shall be required for the acquisition through electronic surveillance of the contents of any communication between one person who is not located within the United States and another person who is not located within the United States for the purpose of collecting foreign intelligence information even if such communication passes through, or the surveillance device is located within, the United States.
(b) Treatment of Intercepted Communications Involving Domestic Party.--If surveillance conducted, as described in subsection (a), inadvertently collects a communication in which at least one party is within the United States, the contents of such communications shall be handled in accordance with the minimization procedures set forth in section 101(h)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)(4)).
(c) Definitions.--In this section, the terms "contents", "electronic surveillance", and "foreign intelligence information" have the meaning given such terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
SEC. 203. INDIVIDUALIZED FISA APPLICATIONS.
The contents of any wire or radio communication sent by a person who is reasonably believed to be inside the United States to a person outside the United States may not be retained or used unless a court order authorized under the Foreign Intelligence Surveillance Act is obtained.
SEC. 204. ISSUES RESERVED FOR THE COURTS.
Nothing in this Act shall be deemed to amend those provisions of FISA concerning any wire or radio communication sent from outside the United States to a person inside the United States. The constitutionality of such interceptions shall be determined by the courts, including the President's claim that his Article II authority supersedes FISA.
SEC. 301. CONGRESSIONAL OVERSIGHT.
(a) Electronic Surveillance Under FISA.--Section 108 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) is amended--
(1) in subsection (a)(2)--
(A) in subparagraph (B), by striking "and" at the end;
(B) in subparagraph (C), by striking the period and inserting "; and"; and
(C) by adding at the end the following:
"(D) the authority under which the electronic surveillance is conducted."; and
(2) by striking subsection (b) and inserting the following:
"(b) On a semiannual basis, the Attorney General additionally shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate on electronic surveillance conducted without a court order.".
(b) Intelligence Activities.--The National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended--
(1) in section 501 (50 U.S.C. 413)--
(A) by redesignating subsection (f) as subsection (g); and
(B) by inserting after subsection (e) the following new subsection:
"(f) The Chair of each of the congressional intelligence committees, in consultation with the ranking member of the committee for which the person is Chair, may inform, on a bipartisan basis, all members or any individual members of such committee of a report submitted under subsection (a)(1) or subsection (b) as such Chair considers necessary."; and
(2) in section 502 (50 U.S.C. 414), by adding at the end the following new subsection:
"(d) Informing of Committee Members.--The Chair of each of the congressional intelligence committees, in consultation with the ranking member of the committee for which the person is Chair, may inform, on a bipartisan basis, all members or any individual members of such committee of a report submitted under subsection (a) as such Chair considers necessary.".
SEC. 302. SUPREME COURT REVIEW OF THE TERRORIST SURVEILLANCE PROGRAM.
(a) In General.--Upon appeal by the United States or any party to the underlying proceedings, the Supreme Court of the United States shall review the final decision of any United States court of appeal concerning the legality of the Terrorist Surveillance Program.
(b) Expedited Consideration.--It shall be the duty of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a).
(c) Definition.--In this section, the term "Terrorist Surveillance Program" means the program identified by the President of the United States on December 17, 2005, to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations.
In this Act, the term "Foreign Intelligence Surveillance Court" means the court established by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
SEC. 402. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to carry out this Act and the amendments made by this Act.
SEC. 403. EFFECTIVE DATE.
This Act, and the amendments made by this Act, shall take effect on the date that is 30 days after the date of the enactment of this Act.
