WASHINGTON – Switching course on one of his most controversial anti-terrorism policies, President Bush agreed Thursday to submit the administration’s warrantless surveillance program to a court for constitutional review.
A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter, R-Pa., came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret.
Even so, the accord is a reversal of Bush’s position that he would not submit his program to court review. The administration has contended that the executive branch already has the wartime authority it needs to order the National Security Agency to monitor e-mails and telephone calls between the United States and foreign countries when at least one party is suspected of terrorist ties.
Specter has disputed that assertion, and many Democrats and civil liberties groups responded with outrage after the surveillance program was disclosed in news accounts last winter.
Bush agreed voluntarily to submit his program to the court named for the 1978 Foreign Intelligence Surveillance Act, or FISA, contingent on Congress passing legislation drafted by Specter and administration lawyers.
The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court’s approval and would allow it to appeal adverse court rulings. It would also allow the government to send to the FISA court all lawsuits challenging the program’s legality that are filed by groups such as the American Civil Liberties Union and are pending in federal courts.
Thursday’s agreement is the latest in a series of concessions Bush has made in his hard-line anti-terrorism tactics in recent days. On Tuesday, the administration agreed to apply key provisions of the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court’s rejection of its policies involving the treatment of detainees. That move unleashed a congressional debate, which continued Thursday, on how best to provide legal protections to detainees at Guantanamo Bay and other U.S. prisons without compromising national security.
Specter told reporters that Bush agreed to the plan’s basic outlines before the Supreme Court’s decision on detainees was announced.
Although the deal represented a clear retreat by Bush, White House aides traveling with him in Germany put an upbeat face on the move. The president approved it in an Oval Office meeting with Specter on Tuesday.
“The bill recognizes the president’s constitutional authority and modernizes FISA to meet the threats we face from an enemy that kills with abandon and hides as they plot attacks,” spokeswoman Dana Perino said.
But Specter, briefing reporters at the Capitol, said his bill would recognize the president’s constitutional powers only in general terms and would make clear the administration must defer to judicial restraints. “The proposed legislation acknowledges, as we must, the president’s inherent Article II authority,” he said. “But when the court makes a decision, the court will make a decision in the traditional context that the president does not have a blank check.
“Unless the court finds it’s constitutional,” he said of the warrantless wiretap program, “it cannot function.”
Specter said it is unclear whether a FISA court decision will be made public.
Several Democrats denounced the proposed legislation. “The Specter bill is an end-run around the Foreign Intelligence Surveillance Act and provides the president a blank check to conduct warrantless surveillance of Americans,” said Rep. Jane Harman of California, ranking Democrat on the House intelligence committee.
The FISA court is composed of seven federal district judges, who are appointed by the chief justice. Congress established it to authorize secret surveillance of espionage and terrorism suspects within the United States. The 1978 law required the Justice Department to show probable cause for targeting people. But after the 2001 terrorist attacks, Bush said warrantless wiretaps were justified in the name of national security. For months, Specter has pushed to have the FISA court review the NSA program’s constitutionality.
Some civil libertarians fear Specter’s approach invites FISA to give broad approval to surveillance efforts on an unknown number of Americans, when the original law presumed that there would be a case-by-case review of individual situations.
Specter said his intent was to get a “determination on constitutionality of the overall program,” adding that “it is suggested, but I do not know, that it is impractical to have individual warrants.”
Specter predicted Congress will pass his bill, even though its two chambers have clashed over immigration, the Patriot Act and other matters in recent years. If Congress amends the bill in any way that Bush disapproves, the president will not be obligated to submit the wiretap program to the FISA court for review, Specter said.
The Bush-Specter deal was reached after intense negotiations over the past few weeks following a public dustup between Specter and Vice President Dick Cheney on the issue. Bush dispatched aides to Capitol Hill to calm tempers and find a compromise.