Senators to publish bills on NSA wiretap

By SHAUN WATERMAN, UPI Homeland and National Security Editor   |   March 9, 2006 at 5:32 PM
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WASHINGTON, March 8 (UPI) -- Two GOP Senators intend this week to publish competing proposals to bring the National Security Agency's program of warrantless counter-terrorist surveillance within the law and under external oversight.

The proposals -- from Sens. Arlen Specter, R-Pa., and Mike DeWine, R-Ohio -- reflect very different approaches to the program, but both have been criticized by civil liberties advocates.

Spokesmen for both Senators told United Press International Wednesday the bills would likely be published this week.

According to a draft obtained by UPI, the bill proposed by Specter, who chairs the Senate's powerful Committee on the Judiciary, would hand both authorization and day-to-day oversight of the program to the secret Foreign Intelligence Surveillance Court, which would rule on its constitutionality and then review it every 45 days to check that the government has been operating the surveillance as it said it would.

Administration officials have said the program monitors international electronic communications -- such as phone calls, faxes and e-mails -- into and out of the United States where one party to the call is thought to be a member or a supporter of al-Qaida or an affiliated group.

Surveillance like this can be authorized by the secret court already, under the 1978 Foreign Intelligence Surveillance Act which set it up, but officials have said the procedures required for a warrant under that law are too cumbersome, and that the president has authority to conduct such surveillance under his inherent powers as commander-in-chief and under the provisions of a congressional resolution in September 2001 authorizing the use of military force against al-Qaida.

Critics charge that the administration has ignored, if not outright broken, the 1978 law and that the program is a violation of the Fourth Amendment prohibition on unreasonable searches.

The National Security Surveillance Act, as Specter dubs his bill, would give the court the power to rule on the consitutionality of the program and on whether there is probable cause to justify the surveillance. If they find against the government, officials can modify the program and re-submit their application.

In a provision which is likely to prove controversial, the Specter bill defines potential surveillance targets as "agents of a foreign power, or a person or persons who have had communication with a foreign power or agent of a foreign power."

Under the Specter bill, the secret court would also have authority to review and authorize any other comparable surveillance programs, the existence of which Attorney General Alberto Gonzales seems to have hinted at in testimony before the judiciary committee.

Specter says his bill gives the authority to review the program to the people best qualified to do -- the judges of the Foreign Intelligence Surveillance Court.

"They are experts," he said Wednesday. "Unlike the Congress and the White House, they do not leak."

The existence of the program was disclosed by The New York Times in December and confirmed by President Bush the following day. Officials have said the revelations about the program may have damaged its efficacy and have a launched a hunt for the leaker, who will likely face prosecution if identified.

The DeWine proposal, by contrast, authorizes the kind of surveillance officials have said is conducted under the program, providing what supporters of the administration see as a statutory framework for the president's inherent constitutional powers.

But, according to a two-page fact sheet issued by DeWine's office, his proposal -- which sunsets the authorization for the program after five years -- would also require the administration to seek a warrant under the 1978 Foreign Intelligence Surveillance Act, known as FISA, "for any individual target (of the NSA program) who meets the requirements" for such a warrant.

Similarly, the Specter bill would require the attorney general to certify that the information sought by the program "cannot reasonably be obtained ... through an application under ... the Foreign Intelligence Surveillance Act of 1978."

This element of the proposals highlights the difficulties of legislating the program given the secrecy in which it is shrouded and the consequent uncertainty about what its exact parameters are.

Rep. Jane Harman, D-Calif., the ranking Democrat on the House Permanent Select Committee on Intelligence and one of the handful of members of Congress briefed about the program before its existence was disclosed, has said that she believes FISA warrants could be obtained against all of those monitored under the program.

On the other hand, officials, while not addressing the question directly, have hinted that it is not simply that the procedures involved in a FISA application are too cumbersome, but rather that the limits FISA places on the targets of surveillance make the program necessary.

"The trigger is quicker and a bit softer than it is for a FISA warrant," said Gen. Michael Hayden, the deputy director of national intelligence, said of the NSA program earlier this year.

Democrats have argued that without a full investigation into the program lawmakers are trying to legislate in the dark.

"I continue to believe that legislating without knowing all the facts could do more harm than good," said Senate intelligence committee Vice Chairman Jay Rockefeller, D-W.Va., Wednesday.

DeWine Spokesman Mike Dawson told UPI that though lawmakers might learn more about the program as their work progressed "I don't think we need to learn any more to move ahead with this legislation."

The proposals also differ in the degree of congressional oversight they envisage for the program, although neither would force the administration -- which has consistently striven to limit the number of lawmakers briefed on the details on the program -- to bring in the full membership of the intelligence committees.

The DeWine proposal would establish subcommittees of the House and Senate intelligence committees to oversee the surveillance. The Specter proposal would require the administration to brief the Chairmen and ranking members of the intelligence committees of both chambers about the program every 45 days.

At a meeting Tuesday, the Senate Select Committee on Intelligence joined their House counterparts in agreeing to have a subcommittee oversee the program -- defeating on a party-line vote a democratic proposal for an investigation.

Democrats say they want to use the subcommittee -- which a committee statement said would be briefed on the program this week -- to assess the different legislative proposals.

Dawson said that DeWine wanted his proposal to be considered by the whole committee.

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