Bush Would Let Secret Court Sift Wiretap Process
By Eric Lichtblau
New York Times
Published July 14, 2006
Washington,July
13, 2006- After months of resistance, the White House
agreed Thursday to allow a secret intelligence court
to review the legality of the National Security Agency’s
program to conduct wiretaps without warrants on Americans
suspected of having ties to terrorists.
If
approved by Congress, the deal would put the court,
the Foreign Intelligence Surveillance Court, in the
unusual position of deciding whether the wiretapping
program is a legitimate use of the president’s
power to fight terrorism. The aim of the plan, Attorney
General Alberto R. Gonzales told reporters, would
be to “test the constitutionality” of
the program.
The
plan, brokered over the last three weeks in negotiations
between Senator Arlen Specter and senior White House
officials, including President Bush himself, would
apparently leave the secretive intelligence court
free to consider the case in closed proceedings, without
the kind of briefs and oral arguments that are usually
part of federal court consideration of constitutional
issues. The court’s ruling in the matter could
also remain secret.
The
court would be able to determine whether the program
is “reasonably designed” to focus on the
communications of actual terrorism suspects and people
in the United States who communicate with them. That
determination is now left entirely in the hands of
the security agency under an internal checklist.
If
the court were to rule the program unconstitutional,
the attorney general could refine and resubmit it
or, conversely, appeal the decision to the FISA appellate
court and ultimately perhaps the Supreme Court, officials
said.
Mr.
Specter, a Pennsylvania Republican who is chairman
of the Senate Judiciary Committee, predicted that
the proposal, with the White House’s backing,
would win approval in the Senate and the House. But
it met with some immediate skepticism on Thursday
from both Republicans and Democrats over whether it
went far enough — or too far — in checking
the president’s authority.
The
proposed legislation represents a middle-ground approach
among the myriad proposals in Congress for dealing
with the wiretapping controversy, which has allowed
the security agency to eavesdrop on the international
phone calls and e-mail of thousands of people in the
United States with ties to terrorism suspects.
Some
Democratic critics of the program have proposed that
it effectively be banned and that all wiretapping
should have to be approved by the intelligence court.
Some Republican supporters have sought to sanction
its continued use without any judicial oversight at
all.
By
giving the intelligence court a clear role in the
program, Mr. Specter said, the proposal seeks to create
balance between giving the president the powers he
needs to fight terrorism and ensuring some measure
of judicial oversight to guard against abuses.
“It’s
an acknowledgment to the president that he can fight
terrorism and still have the court review his program,”
Mr. Specter said. “And I think it allays a lot
of concerns.”
The
Bush administration had argued since the program’s
disclosure last December that no Congressional or
judicial oversight was needed because the surveillance
fell within the president’s constitutional authority.
Some
critics of the program saw the White House’s
reversal on that issue as a significant concession.
But Representative Heather A. Wilson, Republican of
New Mexico, who leads the intelligence subcommittee
that oversees the National Security Agency, said Thursday
in an interview that she found the idea of the court
ruling on the legality of the entire program “a
little odd.”
“That
to me is not what the FISA court is set up to do,”
she said. “The judges approve warrants —
they’re not there to rule on matters of constitutionality.”
Ms.
Wilson plans to announce a legislative proposal of
her own on Friday that will seek to toughen Congressional
oversight of the program and “modernize”
electronic surveillance tools.
In
a separate interview, Representative Jane Harman of
California, the ranking Democrat on the House Intelligence
Committee, said she saw the Specter-White House agreement
as an “end run” around the FISA law requiring
the approval of individual wiretapping warrants.
“I
have great respect for this guy,” she said of
Mr. Specter, “but he hasn’t been briefed
on this program, and he’s giving away in this
legislation a core Fourth Amendment protection by
basically saying that the FISA court has permission
to bless the entire program, which will abandon as
best I can tell the requirement of individualized
warrants.”
Ms.
Harman, who has introduced legislation of her own
to restrict the program, said, “If we want to
abandon a core Fourth Amendment protection, we should
get on the Specter train, and I don’t plan to
get on that train.” Similarly, the American
Civil Liberties Union called the agreement a “sham”
that was “nothing short of a capitulation by
Chairman Specter to the White House.”
Mr.
Specter, however, saw the deal as an effective compromise
that would bring needed judicial oversight to the
program. “I think we’ve got a result which
is really good for the country,” he said.
The
deal was a result of more than three weeks of intense
discussions between his staff and the White House,
Mr. Specter said. The discussions followed a public
flare-up between him and Vice President Dick Cheney
over what the senator saw as the vice president’s
meddling in his efforts to subpoena telephone company
executives to appear before his committee about their
role in the security agency activities.
After
an exchange of tense letters on the issue, Mr. Cheney
indicated in a phone conversation with Mr. Specter that
“the White House was serious on negotiating”
about the possibility of having the FISA court review
the security agency program, the senator told reporters.
The
White House has said for months that while it was
open to listening to ideas from Congress on the program,
it saw no need for Congress or the courts to intervene.
Mr. Cheney said in a television interview in February,
for instance, that he was confident “we have
all the legal authority we need” and that “legislation
would not be helpful.”
But
in the recent discussions the White House, which has
come under fire even from some Republicans over the
program, agreed to support the FISA court’s
review. The White House insisted that the language
of Mr. Specter’s proposal make it optional,
rather than mandatory, for the administration to submit
the program to the court because Mr. Bush was concerned
about lessening “the institutional authority
of his office,” Mr. Specter said.
Nonetheless,
Mr. Bush committed to taking the program before the
court if the legislation was enacted as now drafted,
Mr. Specter and administration officials said.
But
there is no assurance that any determination by the
FISA court on the program will ever be made public.
Mr. Specter said he hoped that such a decision would
become public, but he acknowledged that the decision
was up to the court. The court, whose 11 members are
appointed by the chief justice of the United States,
operates in secret, and while the FISA appellate panel
did issue one public ruling in 2002, the court itself
has never publicly issued a decision.
While
some critics brand the FISA court as a “rubber
stamp” for government wiretapping, the judge
who leads the court, Colleen Kollar-Kotelly, is known
to have voiced strong concerns about aspects of the
security agency program while it was still secret.
After it was publicly disclosed last December, another
member of the court, Judge James Robertson, resigned
in apparent protest over the fact that the full court
had never been informed of the program.
The
proposal does include some concessions sought by the
White House. In a bow to the president’s inherent
authority as commander in chief, the measure states
that it “does not unconstitutionally retract
any constitutional authority the president has”
to collect information from foreign nations and their
agents.
It
would also give the Justice Department greater flexibility
to impose “emergency” wiretaps with a
retroactive court order and to conduct “roving”
wiretaps and use other technology in surveillance,
and it would allow the FISA court to hear all challenges
to the program, including several civil suits pending
in the federal courts by the A.C.L.U. and other groups.
Some critics of the program said the consolidation
of the civil suits before the secret court could effectively
derail them.
“This
is the president and the Congress coming together
to codify the capacity for future presidents to take
actions to protect the country,” said Dana Perino,
a White House spokeswoman.
Copyright
2006 New York Times
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