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The Senate Judiciary Committee will vote on legislation March 30 that would direct the Bush administration to submit the details of the National Security Agencys warrantless domestic spying program to the secret foreign intelligence surveillance court for review.
Sen. Arlen Specter, R-Pa., chairman of the committee and author of the legislation, said that only the judicial branch can determine the constitutionality of the NSA program, which Bush authorized in the wake of the Sept. 11, 2001, terrorist attacks, and which The New York Times disclosed late last year.
Specter said that he believes the program violates the Foreign Intelligence Surveillance Act, but that he does not have enough information to determine whether the presidents constitutional powers entitle him to ignore FISA.
“That would require knowing what the program is,” Specter said. “It may well be that the program is within the presidents inherent authority.”
Others in Congress want more information about the NSA program before enacting any new law that would expand the presidents powers.
“This committee remains in the dark in regard to nearly every aspect of the program,” said Sen. Patrick Leahy, D-Vt.
“At the very least, before we legislate we ought to know whats going on.”
Leahy criticized Attorney General Alberto Gonzales for not responding to requests for information from Capitol Hill.
“His testimony was more obstructionist than enlightening,” Leahy said, charging the administration with having “shifting legal rationalizations” and a “paranoid aversion to openness and accountability.”
“In my 32 years in the Senate, Ive never seen anything like this, ever,” Leahy said.
“If the rule of law means anything, we have to insist on real oversight and real accountability.”
The harshest words came from Sen. Joe Biden, D-Del., who criticized his fellow lawmakers for failing to live up to their oversight responsibilities.
Noting that he served in Congress during the height of the Cold War when the FISA was enacted, Biden questioned why todays lawmakers have not demanded more input on an issue like the NSA wiretapping.
“What I find absolutely amazing here is that we are essentially in this constitutional moment [and] being required to say theres not—practically—much we can do,” Biden said. “This is like Alice in Wonderland.”
Five judges appearing before the committee March 28 voiced support for Specters bill, speaking highly of the FISA courts ability to judge the constitutionality of the NSA program.
Judge John Keenan, of the U.S. District Court for the Southern District of New York, said that the bill should include a provision to increase the time allotted to wiretap without a warrant in emergencies from 72 hours to seven days.
Critics said that the legislation, if enacted, may be irrelevant if the administration maintains the position that it does not have to abide by federal statutes.
Cautioning that Specters bill could be interpreted as authorizing the NSA program, Morton Halperin, senior fellow at the Center for American Progress and executive director of the Open Society Policy Center, said that the administration should be held accountable for recognizing the limits of the law.
“Theres no point in establishing a new procedure if the president takes the position that he is not bound by new authority,” Halperin said.
Legislation should focus on addressing the problem that Gonzales identified, which is that NSA officials do not have time to get a warrant in emergency situations, Halperin said.
An additional 72 hours to get a warrant following emergency eavesdropping should be considered, he said.