WASHINGTON—In a policy reversal, President Bush has agreed to sign legislation allowing a secret federal court to assess the constitutionality of his warrantless domestic eavesdropping program, a senior Republican senator announced Thursday.
By having the Foreign Intelligence Surveillance Court conduct the review instead of a regular federal court, the Bush administration would ensure the secrecy of details of the highly classified program. The administration has argued that making details of the program public would compromise national security.
However, such details could include politically explosive disclosures that the government has kept tabs on people it shouldn't have been monitoring.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who's questioned the program's legality, said the legislation he's sponsoring strikes a balance between the president's inherent constitutional authority to protect the country and citizens' right to privacy.
"It is a weighing of the interests in security to fight terrorism with the privacy interests which are involved," Specter said. "You have here a recognition by the president that he doesn't have a blank check."
Specter said the FISA court wouldn't have to make it findings public.
Bush agreed to sign the bill only if it passed Congress without major changes, Specter said.
The bill was the result of weeks of negotiations between Specter and the White House.
Attorney General Alberto Gonzales welcomed the measure, saying it "recognizes the president's constitutional authority to gather up information."
Civil liberties groups called the measure a ruse designed to keep Congress and the public in the dark about the full extent of what they condemned as an illegal program run by the National Security Agency, which conducts electronic eavesdropping.
"Senator Specter's proposal would set up a sham judicial review," charged Kate Martin, the director of the Center for National Security Studies. "It gives them a blank check and legal cover for what they have been doing."
Lee Tien, an attorney with the Electronic Frontier Foundation, a civil liberties group that's suing AT&T over its cooperation with the NSA program, called the bill "terrible" in part because it provides no opportunity for outside attorneys to contest the program's legality before FISA court.
"This bill says nothing about how any outsider or the folks that we represent would have any kind of a voice in this," he said. "It's almost alien to the concept of judicial review in this country."
The NSA has been monitoring overseas telephone and Internet communications of Americans suspected of supporting or belonging to al-Qaida or other terrorist groups without court orders since just after the Sept. 11, 2001, terrorist attacks.
Bush confirmed the existence of the Terrorist Surveillance Program after its disclosure by The New York Times in November. He said the revelation had seriously damaged national security, and he rejected charges that the program was illegal.
Democrats and civil liberties advocates contended that Bush violated the Fourth Amendment protection against unreasonable searches and the Foreign Intelligence Surveillance Act of 1978. The act requires federal officials to obtain warrants from the Foreign Intelligence Surveillance Court to monitor overseas communications of U.S. citizens.
Some Republicans, including Specter, also expressed concerns that the program violated FISA.
The administration said Bush could authorize warrantless wiretaps under his constitutional authority to protect the nation's security and a congressional resolution empowering him to use force against al-Qaida.
The bill would allow the secret court to determine the constitutionality of foreign intelligence surveillance operations, but wouldn't make such reviews mandatory.
Specter said Bush insisted on that language "because the president does not want to bind presidents in the future" to having to seek the court's permission to conduct warrantless eavesdropping programs.
The bill also:
_Would make changes to FISA that are sought by the administration. They include extending the period in which federal officials could conduct emergency surveillance programs before asking the secret court to approve a warrant from three days to a week.
_Require the attorney general to certify that the information gathered through surveillance was being used for national security purposes and that the information couldn't be obtained through "normal investigative techniques."
He also would have to explain how the program conformed to the Constitution and what steps were being taken to ensure the destruction of information mistakenly gathered on Americans with no connections to terrorism.
If the FISA court found the program unconstitutional, the attorney general could make modifications and resubmit them for approval.
_Would also allow the attorney general to seek the transfer of all regular federal court challenges to federal surveillance programs to the FISA court for adjudication. If the FISA court found problems, the cases would be sent back to the original court.
There are about 100 such cases pending.
Sending all the legal challenges to the FISA court would vastly reduce the number of judicial authorities weighing in on their legality, said Tien, the civil liberties group attorney.
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(McClatchy correspondents Stephen Henderson and Marisa Taylor contributed to this report.)
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(c) 2006, McClatchy-Tribune Information Services.
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