As the immigration debate grips Capitol Hill, some lawmakers are quietly turning their attention back to a subject that was just as much a lightning rod only a few months ago: President Bush’s domestic eavesdropping program.
The Senate Judiciary Committee was scheduled to consider three measures Thursday that alternately seek to legitimize the controversial program with few changes; give a secret court power to oversee the administration’s program; and pave the way for the Supreme Court to quickly take up cases challenging the program’s legality.
The Judiciary Committee’s chairman, Sen. Arlen Specter, R-Pa., said he wants to send all of these measures to the Senate floor for a full debate, but he acknowledged enough controversy exists within his own committee that he may have trouble putting together the votes to move ahead this week. “We’re trying to work out some problems,” he said in an interview. “Different senators have different concerns.”
Sen. Dianne Feinstein, D-Calif., a member of the committee, asked Specter in a letter Wednesday to postpone the markup session until Attorney General Alberto Gonzales provides lawmakers more details about the program. Specifically, Feinstein has asked Gonzales what procedural changes to the Foreign Intelligence Surveillance Act should be considered by Congress to make oversight of the eavesdropping program by the secret FISA court _ as some lawmakers favor _ palatable to the administration. Feinstein told Specter she received word just Wednesday that the Department of Justice would issue a response by May 15.
“We cannot fairly consider legislation before the attorney general has even spelled out whether and why a specific warrant approach must be abandoned,” she said.
Under the eavesdropping program, as lawmakers now understand it to operate, the National Security Agency monitors, without court warrants, Americans’ communications with overseas people whom the government suspects of having terrorist connections. The program’s existence was leaked to the New York Times, which late last year revealed its existence in a published report. Since then, administration officials have floated the idea of using espionage law to prosecute journalists who publish certain leaks.
President Bush and Gonzales have maintained they have the power to operate the program without court intervention.
Legislation by Sen. Mike DeWine, R-Ohio, and cosponsored by Sen. Lindsey Graham, R-S.C., would authorize the president to continue the eavesdropping program in 45-day increments. The administration would be instructed to involve the FISA court in some cases, and the administration would have to report to a special congressional oversight panel on monitoring of an individual that continued beyond a month and a half.
On the other end of the spectrum, Sen. Charles Schumer, D-N.Y., has proposed legislation that would give the Supreme Court expedited review of the program. That could give standing to the ACLU and other groups representing plaintiffs who argue the program is unconstitutional and who say they are concerned that the government is monitoring their phone calls or e-mails without their knowledge or sufficient cause.
Specter, who has been highly critical of the administration for bypassing the courts and for declining to share details about the program with all but a select few in the Republican-controlled Congress, last week warned the White House he might try to block funding for the program until lawmakers get more information. But he said he’s not ready to go down that road yet.
Instead, the Judiciary Committee is slated to consider another Specter measure this week.
It would allow the administration to continue monitoring communications between people in the United States and those overseas with possible terrorist links, but with some court monitoring. FISA’s secret court would have authority to consider the program’s constitutionality broadly and in specific cases.
Specter says this is not at odds with his frustration at the administration. “They won’t tell us, but they’d tell the court,” he said of the NSA’s having to reveal details about the eavesdropping program.
Still, many free-speech critics of the Bush administration say they feel confused and let down by Specter.
“I’m perplexed,” said Caroline Fredrickson, director of the ACLU’s Washington legislative office. “Sen. Specter said at the end of the last executive meeting of the committee, ‘Where’s the outrage?’ in reference to this program. If he really feels that way, it’s really strange he would proceed with legislation that would more or less authorize it.
“There is no guarantee that simply by providing the FISA court with some oversight of this program, the administration is going to stop ignoring the FISA court,” Fredrickson said. “This legislation does nothing to ensure the president follows the law.”
Senate Minority Whip Dick Durbin, D-Ill., said Specter “has shown extraordinary courage to assert the Judiciary Committee’s right and responsibility of oversight on this program. But we haven’t gone far enough. We’re being asked to vote on dramatic changes in the law without even the most basic understanding of what this new NSA warrantless wiretap is all about.”
Just who is being monitored under the NSA program, for how long, and to what end is not publicly known, or known by most members of Congress. Many lawmakers from both parties have questioned the legality of the program. But even the harshest Democratic critics are reluctant to say the president should not be able to monitor Americans suspected of having ties to terrorism. More have focused on the notion that they should have been brought in the loop.
Many Republicans and some Democrats, meanwhile, are reluctant to push for subpoenas for testimony about the program because of national security concerns as well as political considerations.
“When it comes to matters related to war and intelligence gathering, I believe that’s an executive branch function,” said Sen. Jeff Sessions, an Alabama Republican who sits on the Judiciary Committee.