GOP Plan Allows Spying Without Warrants

GOP Plan Allows Spying Without Warrants

GOP Plan Would Allow Spying Without Warrants
By Scott Shane and David D. Kirkpatrick
The New York Times

Thursday 09 March 2006

Washington - The plan by Senate Republicans to step up oversight of the National Security Agency's domestic surveillance program would also give legislative sanction for the first time to long-term eavesdropping on Americans without a court warrant, legal experts said on Wednesday.

Civil liberties advocates called the proposed oversight inadequate and the licensing of eavesdropping without warrants unnecessary and unwise. But the Republican senators who drafted the proposal said it represented a hard-wrung compromise with the White House, which strongly opposed any Congressional interference in the eavesdropping program.

The Republican proposal appeared likely to win approval from the full Senate, despite Democratic opposition and some remaining questions from Senator Arlen Specter, Republican of Pennsylvania and chairman of the Judiciary Committee.

Senator Pat Roberts, Republican of Kansas and chairman of the Intelligence Committee, emphasized in an interview on Wednesday the White House's resistance to any limits on what President Bush considers his inherent power to order surveillance of potential terrorists on American soil.

"There was a lot of pushback," Mr. Roberts said. "So we kept saying, I am sorry, that is not acceptable, and the reality is such that you will either do this or you will face bigger obstacles and we will get into confrontation."

The negotiations that produced a deal on the eavesdropping program left Senate Democrats fuming on the sidelines, adding to the partisan squabbling on the Intelligence Committee that longtime observers of Congress say is unprecedented.

But on Wednesday, the Democratic vice chairman of the committee, Senator John D. Rockefeller IV of West Virginia, issued a conciliatory statement, saying that while he favored a full investigation, a committee decision on Tuesday to appoint a seven-member subcommittee to oversee the N.S.A. eavesdropping was "a step in the right direction."

Mr. Rockefeller said he and Senators Carl Levin of Michigan and Dianne Feinstein of California, both fellow Democrats, would serve on the subcommittee, joining Mr. Roberts and three other Republicans, Senators Orrin G. Hatch of Utah, Mike DeWine of Ohio and Christopher S. Bond of Missouri.

On Tuesday, Mr. Rockefeller said he believed that the committee's Republicans were "under the control" of the White House. Mr. Roberts said on Wednesday that he resented being portrayed as what he called a "lap dog of the administration."

"He doesn't know how hard we worked," Mr. Roberts said of Mr. Rockefeller.

The Republican proposal would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was "probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization," according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court.

But after 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant.

The administration would be required to provide "full access" to information about the eavesdropping, including "operational details," to the new Senate and House subcommittees, the summary said. Each subcommittee would consist of four Republicans and three Democrats from the Intelligence Committees.

Mr. DeWine, a principal author of the proposal, said it would give "very specific pinpoint oversight."

"We will be seeing specific cases coming back and seeing why they are not going into the FISA court," he said.

In an emergency, the existing FISA statute permits the government to eavesdrop for 72 hours before getting a warrant, and for 15 days after a declaration of war. The Republican proposal would permit eavesdropping with no warrant for 45-day periods, with no limit on how many times they could be renewed.

"Aside from the civil liberties dimension, there's an invitation here to the president to go on indefinitely with warrantless surveillance," said William C. Banks, a law professor at Syracuse University.

Caroline Fredrickson, head of the American Civil Liberties Union's Washington legislative office, said it was "profoundly disappointing to see lawmakers willing to lower the bar to allow the president vast powers to spy on Americans."

Republicans offered varying views on whether the agreement with the White House ruled out a Congressional investigation of how the N.S.A. program was begun, how it was conducted and what dissent existed inside the administration.

Mr. DeWine said he did not expect the subcommittee to investigate the last four years of the program's operations, saying the panel needed to be "moving forward."

But Senator Olympia J. Snowe, Republican of Maine and another sponsor of the proposal, said it did not preclude an investigation by the committee if the subcommittee found that one was called for.

The Republicans were miffed that Mr. Rockefeller, the committee's ranking Democrat, had portrayed them as caving in to White House pressure.

On Tuesday, Senator Chuck Hagel, Republican of Nebraska and another author of the proposal, called that notion "laughable." Mr. Hagel said he and Senators DeWine and Snowe were "three of the most independent Republicans" in the Senate and added, "I have never been accused of buckling to White House pressure."