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The War Profiteers - War Crimes,
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July 14th,
2006 - Bush Would Let Secret Court Sift Wiretap Process |
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Bush
Would Let Secret Court Sift Wiretap Process New York Times By Eric Lichtblau July 14, 2006 Washington,
July 13 - After months of resistance, the White House agreed Thursday to
allow a secret intelligence court to review the legality of the National
Security Agency’s program to conduct wiretaps without warrants on Americans
suspected of having ties to terrorists. If
approved by Congress, the deal would put the court, the Foreign Intelligence
Surveillance Court, in the unusual position of deciding whether the
wiretapping program is a legitimate use of the president’s power to fight
terrorism. The aim of the plan, Attorney General Alberto R. Gonzales told
reporters, would be to “test the constitutionality” of the program. The
plan, brokered over the last three weeks in negotiations between Senator
Arlen Specter and senior White House officials, including President Bush
himself, would apparently leave the secretive intelligence court free to
consider the case in closed proceedings, without the kind of briefs and oral
arguments that are usually part of federal court consideration of
constitutional issues. The court’s ruling in the matter could also remain
secret. The
court would be able to determine whether the program is “reasonably designed”
to focus on the communications of actual terrorism suspects and people in the
United States who communicate with them. That determination is now left
entirely in the hands of the security agency under an internal checklist. If
the court were to rule the program unconstitutional, the attorney general
could refine and resubmit it or, conversely, appeal the decision to the FISA
appellate court and ultimately perhaps the Supreme Court, officials said. Mr.
Specter, a Pennsylvania Republican who is chairman of the Senate Judiciary
Committee, predicted that the proposal, with the White House’s backing, would
win approval in the Senate and the House. But it met with some immediate
skepticism on Thursday from both Republicans and Democrats over whether it
went far enough — or too far — in checking the president’s authority. The
proposed legislation represents a middle-ground approach among the myriad
proposals in Congress for dealing with the wiretapping controversy, which has
allowed the security agency to eavesdrop on the international phone calls and
e-mail of thousands of people in the United States with ties to terrorism
suspects. Some
Democratic critics of the program have proposed that it effectively be banned
and that all wiretapping should have to be approved by the intelligence
court. Some Republican supporters have sought to sanction its continued use without
any judicial oversight at all. By
giving the intelligence court a clear role in the program, Mr. Specter said,
the proposal seeks to create balance between giving the president the powers
he needs to fight terrorism and ensuring some measure of judicial oversight
to guard against abuses. “It’s
an acknowledgment to the president that he can fight terrorism and still have
the court review his program,” Mr. Specter said. “And I think it allays a lot
of concerns.” The
Bush administration had argued since the program’s disclosure last December
that no Congressional or judicial oversight was needed because the
surveillance fell within the president’s constitutional authority. Some
critics of the program saw the White House’s reversal on that issue as a
significant concession. But Representative Heather A. Wilson, Republican of
New Mexico, who leads the intelligence subcommittee that oversees the
National Security Agency, said Thursday in an interview that she found the
idea of the court ruling on the legality of the entire program “a little
odd.” “That
to me is not what the FISA court is set up to do,” she said. “The judges
approve warrants — they’re not there to rule on matters of
constitutionality.” Ms.
Wilson plans to announce a legislative proposal of her own on Friday that
will seek to toughen Congressional oversight of the program and “modernize”
electronic surveillance tools. In
a separate interview, Representative Jane Harman of California, the ranking
Democrat on the House Intelligence Committee, said she saw the Specter-White
House agreement as an “end run” around the FISA law requiring the approval of
individual wiretapping warrants. “I
have great respect for this guy,” she said of Mr. Specter, “but he hasn’t
been briefed on this program, and he’s giving away in this legislation a core
Fourth Amendment protection by basically saying that the FISA court has
permission to bless the entire program, which will abandon as best I can tell
the requirement of individualized warrants.” Ms.
Harman, who has introduced legislation of her own to restrict the program,
said, “If we want to abandon a core Fourth Amendment protection, we should
get on the Specter train, and I don’t plan to get on that train.” Similarly,
the American Civil Liberties Union called the agreement a “sham” that was
“nothing short of a capitulation by Chairman Specter to the White House.” Mr.
Specter, however, saw the deal as an effective compromise that would bring
needed judicial oversight to the program. “I think we’ve got a result which
is really good for the country,” he said. The
deal was a result of more than three weeks of intense discussions between his
staff and the White House, Mr. Specter said. The discussions followed a
public flare-up between him and Vice President Dick Cheney over what the
senator saw as the vice president’s meddling in his efforts to subpoena
telephone company executives to appear before his committee about their role
in the security agency activities. After
an exchange of tense letters on the issue, Mr. Cheney indicated in a phone
conversation with Mr. Specter that “the White House was serious on
negotiating” about the possibility of having the FISA court review the
security agency program, the senator told reporters. The
White House has said for months that while it was open to listening to ideas
from Congress on the program, it saw no need for Congress or the courts to
intervene. Mr. Cheney said in a television interview in February, for
instance, that he was confident “we have all the legal authority we need” and
that “legislation would not be helpful.” But
in the recent discussions the White House, which has come under fire even
from some Republicans over the program, agreed to support the FISA court’s
review. The White House insisted that the language of Mr. Specter’s proposal
make it optional, rather than mandatory, for the administration to submit the
program to the court because Mr. Bush was concerned about lessening “the
institutional authority of his office,” Mr. Specter said. Nonetheless,
Mr. Bush committed to taking the program before the court if the legislation
was enacted as now drafted, Mr. Specter and administration officials said. But
there is no assurance that any determination by the FISA court on the program
will ever be made public. Mr. Specter said he hoped that such a decision
would become public, but he acknowledged that the decision was up to the
court. The court, whose 11 members are appointed by the chief justice of the
United States, operates in secret, and while the FISA appellate panel did
issue one public ruling in 2002, the court itself has never publicly issued a
decision. While
some critics brand the FISA court as a “rubber stamp” for government
wiretapping, the judge who leads the court, Colleen Kollar-Kotelly, is known
to have voiced strong concerns about aspects of the security agency program
while it was still secret. After it was publicly disclosed last December,
another member of the court, Judge James Robertson, resigned in apparent protest
over the fact that the full court had never been informed of the program. The
proposal does include some concessions sought by the White House. In a bow to
the president’s inherent authority as commander in chief, the measure states
that it “does not unconstitutionally retract any constitutional authority the
president has” to collect information from foreign nations and their agents. It
would also give the Justice Department greater flexibility to impose
“emergency” wiretaps with a retroactive court order and to conduct “roving”
wiretaps and use other technology in surveillance, and it would allow the
FISA court to hear all challenges to the program, including several civil
suits pending in the federal courts by the A.C.L.U. and other groups. Some critics
of the program said the consolidation of the civil suits before the secret
court could effectively derail them. “This
is the president and the Congress coming together to codify the capacity for
future presidents to take actions to protect the country,” said Dana Perino,
a White House spokeswoman. Copyright
2006 The New York Times Company External link: http://www.nytimes.com/2006/07/14/washington/14nsa.html
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