More Pushback from Hill on Eavesdropping

By Peter Grier writer of The Christian Science Monitor | The Christian Science Monitor, March 1, 2006 | Go to article overview

More Pushback from Hill on Eavesdropping


Peter Grier writer of The Christian Science Monitor, The Christian Science Monitor


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 White House.

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 issue.

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 to continue.

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. …

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