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Wiretapping Review Is Criticized

July 15, 2006, The New York Times

Wiretapping Review Is Criticized
By ERIC LICHTBLAU

WASHINGTON, July 14 — Critics of the Bush administration’s program for wiretapping without warrants said Friday that they would fight a new White House agreement to let a secret court decide the constitutionality of the operation, and the compromise plan failed to deter lawmakers from offering up competing proposals of their own.
The agreement, completed Thursday by Senator Arlen Specter after negotiations with the White House, drew immediate scrutiny in Washington, as politicians, national security lawyers and civil rights advocates debated its impact and legal nuances.
The plan would allow the secret court known as the Foreign Intelligence Surveillance Court, which normally issues wiretapping warrants in terror and spying cases, to review the program and decide on its legality. The proposal would have to be approved by Congress.
Representative Adam Schiff, a California Democrat who has been critical of the National Security Agency wiretapping program, said in an interview Friday that he saw the White House-Specter proposal as “a further abdication” of the role of Congress in setting rules for federal surveillance and wiretapping.
“We’re going to let a secret court decide for us what to do?” Mr. Schiff asked. “I think it’s a cop-out.”
Mr. Schiff and three other lawmakers, including one Republican, introduced an amendment last month to the Defense Department appropriations bill seeking to block the use of any money on the N.S.A. program unless intelligence warrants are used. The amendment failed, but it drew 23 Republican supporters, an increase from four Republicans in an earlier vote.
“The momentum is clearly moving in the direction of reining in the program,” Mr. Schiff said.
He said he planned to introduce the de-financing proposal again and would also pursue a separate bipartisan bill proposed this year affirming that the government must obtain a court warrant for eavesdropping.
Meanwhile, Representative Heather A. Wilson, the New Mexico Republican who leads the intelligence subcommittee with oversight of the N.S.A., proposed legislation Friday that she said would strengthen Congressional oversight of the surveillance program and “modernize” intelligence-gathering techniques. Among other provisions, Ms. Wilson’s bill would allow the government to monitor the communications of suspected terrorist targets without a court order “for a period not to exceed 45 days following a terrorist attack” and require Congressional certification for any extensions.
“We can gather intelligence about terrorist organizations and prevent them from attacking us while also protecting civil liberties,” Ms. Wilson said in a telephone interview Friday, “and you do that by dividing power among the three branches of government.”
She said that the Foreign Intelligence Surveillance Court, known as the FISA court, was ill-suited to rule on the constitutionality of the wiretapping program and that Mr. Specter’s agreement with the White House seemed “a little odd to me.”
Civil rights advocates attacked the Specter plan in even stronger terms.
“Senator Specter has sold out his committee by caving to everything the White House requested to continue illegal, warrantless spying on American citizens,” Shayana Kadidal, a lawyer with the Center for Constitutional Rights in New York, which is suing the government over the N.S.A. program, said Friday. “This is not a compromise. It is a sellout.”
Civil rights groups and privacy advocates said they were concerned not only that the secret intelligence court would rule on the constitutionality of the security agency’s program, but also by the fact that Mr. Specter’s proposal would consolidate all the legal challenges to the program now pending in federal courts around the country and allow the intelligence court to hear all those challenges. The Electronic Frontier Foundation, which is suing the government in federal court in California over the wiretapping program, called the proposal “a rubber stamp” for spying programs.
Kate Martin, director of the Center for National Security Studies, noted that the only ruling ever issued by the intelligence court’s appellate panel, in 2002, cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”
“I think the government clearly expects that if these challenges are transferred to the FISA court, their chances of winning are greatly increased,” Ms. Martin said.
Mr. Specter, a Pennsylvania Republican who is chairman of the Judiciary Committee, said in an interview Friday that he was surprised by the strong attacks on his proposal, which was developed after three weeks of talks between him and White House officials, including President Bush.
The senator said civil rights advocates should take some satisfaction from the idea that the intelligence court would be allowed to rule on the program’s legitimacy.
“I can understand if they’d like more, but this is an important step,” Mr. Specter said. “I want to know whether the program is unconstitutional. The question is whether you’re going to have some sort of court review or nothing.”

posted by J. Boulevard @ 7:53 AM