By Walter Pincus
Washington Post Staff Writer
Friday, June 9, 2006
The chairman of the Senate Judiciary Committee has proposed legislation that would give President Bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the National Security Agency.
Sen. Arlen Specter's approach modifies his earlier position that the NSA eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the Foreign Intelligence Surveillance Act (FISA).
The new proposal specifies that it cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States."
Bush has cited his constitutional authority as president as justification for undertaking the warrantless NSA surveillance. The White House and Vice President Cheney have said up to now that no additional legislation is necessary to bring the program within the law.
Specter's bill, introduced yesterday at a committee meeting, was a compromise worked out with Sen. Jon Kyl (R-Ariz.) and designed to gather enough Republican support so it can be taken to the floor for a vote. During a conversation with Cheney yesterday afternoon first disclosed by an administration official, Specter (R-Pa.) said he arranged to have Justice Department officials begin reviewing his proposal.
Another part of the Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law.
A third provision would consolidate the 29 cases that have been filed in various federal district courts challenging the legality of the NSA program and give jurisdiction over them to the Foreign Intelligence Surveillance Court of Review, which was established by FISA. Any decision of that court would be subject to Supreme Court review and otherwise would be binding on all other courts.
Up to now, Specter said yesterday, attempts to get an administration opinion on the proposal for a constitutional review of the NSA program have been unsuccessful. "I have asked the attorney general publicly and privately, and they wouldn't answer."
"I think he [Cheney] is serious about trying to work something out," Specter said in a telephone interview. "For the first time, he said they are willing to consider legislation."
Sen. Dianne Feinstein (D-Calif.), a member of the Judiciary and Intelligence committees who has been briefed on the details of the NSA program, said she cannot support Specter's approach. In a telephone interview, Feinstein, who has a bill of her own before the Judiciary Committee, said that when the contents of a conversation are overheard, "it cannot be carried out without a warrant."
She said the current NSA program "is a significant intelligence tool, but it can be fit into and should conform to the FISA law." Feinstein said she could see a "program warrant" from the FISA court for a separate undertaking in which the NSA is examining telephone numbers, time, date and length of conversations, but not listening to actual conversations.
Specter's bill also proposes a "program warrant" for the eavesdropping that would be reviewed periodically by the attorney general.
Fenstein's bill, which has Specter as a co-sponsor, would specifically restate that a president could conduct electronic surveillance of people in the United States for foreign intelligence purposes only under the auspices of FISA.
One problem, according to Feinstein, is that "people are legislating in the dark" because most members of the Judiciary Committee, including Specter, have not been briefed on the NSA program.
Feinstein said she believes Congress should take its time on the issue, because it involves serious constitutional questions on the scope of presidential powers. She said she is not sure her bill will be ready for approval by the committee by the time of a meeting to take up NSA legislation scheduled for next week.
"We're setting a precedent for a 30-year war on terrorism," she said. "If you know you can carry out the program within the law, why not do it with the added benefit that you are guaranteeing people's rights?"