Washington is immersed in a furious debate over the legality of
the National Security Agency's warrantless surveillance program -
and the argument's outcome may affect the balance of power in the US
government for decades to come.
That is what a bipartisan group of US lawmakers believe, in any
case, as they struggle to respond to the White House's assertions of
broad powers in the surveillance case.
Unless Congress asserts authority over the program via some form
of legislation, some legislators and legal scholars assert, it risks
becoming less relevant on important questions of war and national
security than it is today.
"This is a defining issue in the constitutional history of the
United States," constitutional lawyer Bruce Fein testified Tuesday
before the Senate Judiciary Committee.
Since late last year, when news reports revealed the existence of
the NSA program, the Bush administration has staunchly defended it
as legal. Congress implicitly authorized the program when it voted
in 2001 to authorize use of force in the war on terror, claims the
In addition, officials say, the president's inherent authority as
commander in chief allows him to take any steps he deems necessary
in the defense of the United States.
Some key Republican lawmakers, such as Sens. Lindsey Graham of
South Carolina and John Warner of Virginia, Senate Armed Services
Committee chairman, have joined Democrats in voicing worry about the
extent of power claimed by the executive branch in the eavesdropping
Senator Specter's solution
The chairman of the Senate Judiciary panel, Sen. Arlen Specter
(R) of Pennsylvania, is leading one of the main efforts to draw up
legislation on the issue.
Under a draft version of Senator Specter's bill, the surveillance
program would come under the authority of the secret court created
by the 1978 Foreign Intelligence Surveillance Act (FISA). The
legislation would require the administration to get approval from
the court every 45 days for the controversial surveillance program
Specter is also calling for the FISA court to determine whether
the program is constitutional - although a number of legal experts
question whether any such ruling would be an inappropriate advisory
opinion, or determination of a case without a plaintiff.
Senator DeWine's alternative
While insisting that the program is legal, the White House has
indicated that it would work with Congress to codify the law in this
area, if necessary. It prefers a proposal from Sen. Mike DeWine (R)
of Ohio, which would exempt the program from the FISA law and set up
a special congressional committee to provide oversight and review of
eavesdropping cases. …