Last Updated: 9/12/06
NSA wiretapping

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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