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Specter softens stance on NSA domestic surveillance

Maura Reynolds / Baltimore Sun | July 24 2006

WASHINGTON // When the White House's secret domestic surveillance program was disclosed last year, Sen. Arlen Specter was one of the first to leap into action, denouncing the wiretapping as "wrong" and insisting that President Bush acted outside the law by not seeking judicial or congressional approval.

"We're not going to give him a blank check," the Republican from Pennsylvania insisted at the time.

So when Specter, well-known as a GOP maverick and administration critic, announced this month that he would offer a bill that would allow -- but not compel -- the administration to have the spying program declared retroactively legal, more than a few people focused on the dispute scratched their heads.

The American Civil Liberties Union, which had praised Specter for his oversight efforts, denounced the deal as a "capitulation."

"From early on, Specter was in the camp of those who challenged the president's authority to authorize the program and said the president had gone too far," said Caroline Fredrickson, director of the ACLU's Washington legislative office. "But since that high point, he's gone from expressing strong belief in the separation of powers and Congress's critical role in overseeing the executive branch to a complete and utter sellout."

Specter doesn't see it that way. In an interview Friday, the chairman said that he had one goal in negotiating with the White House: getting some form of judicial review for the program, which administration officials had so far bypassed.

He acknowledged that the bill he is championing would not force the president to submit the National Security Agency surveillance program to review by the FISA court, an intelligence tribunal. But, Specter said, he gained Bush's personal promise that he would submit it if the bill passes in its current form. "He overruled his staff" in making that commitment, said Spector, who met with the president before announcing the deal.

Specter said he would rather have FISA judges consider the spying activities by the NSA on a case-by-case basis, instead of having the entire program reviewed.

But in essence, Specter's position is that some judicial review is better than no judicial review.

He also said his bill does not represent a "blank check" for the administration's domestic spying program, as his critics claim. "It is not a blank check because it has to be filled in by the FISA court," Specter said.

The Foreign Intelligence Surveillance Act of 1978 prohibited the government from conducting surveillance inside the United States without getting warrants from the court established by the law.

But after the Sept. 11 attacks, Bush authorized the NSA -- the country's top electronic spy agency -- to bypass the warrant process and intercept international telephone calls and e-mail messages by people inside the United States whom it suspected of having links to al-Qaida.

The administration did not inform congressional intelligence committees about the program. Instead, officials provided limited briefings to a handful of leaders, including the chairs of the House and Senate intelligence committees.

Several lawmakers have contended that under the 1947 National Security Act, the full committees are supposed to be kept informed of all intelligence operations.

The White House has countered that the president's powers as commander-in-chief during wartime gave him the authority to authorize the program, bypass the warrant process and curtail the congressional briefings.

Critics say that a decision by the FISA court validating the constitutionality of the entire spying program effectively would eliminate the warrant process and make it harder to prevent abuses in individual cases.

They also say that Specter's bill would consolidate all challenges to the program into the FISA court system, where the proceedings are secret and plaintiffs have a harder time making their case.

Specter said he recognizes that his proposal would not provide as much judicial oversight as either he or his critics would like.

He noted that this month a federal judge in San Francisco permitted a civil liberties group to proceed with a lawsuit against the government, arguing that the spying program violates federal privacy laws. Specter said he'd like to see the lawsuit proceed,

Ultimately, he said, "I would like to see this matter decided by the Supreme Court of the United States."

 

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