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Specter: Deal reached with White House on wiretaps

Legislation would let FISA court decide legality of NSA program



National Security Agency (NSA)
White House
Arlen Specter

WASHINGTON (CNN) -- The top Republican on the Senate Judiciary Committee said Thursday that he had struck a deal with the White House to resolve a dispute over the constitutionality of conducting electronic surveillance with court approval.

Sen. Arlen Specter of Pennsylvania revealed a bill that would allow the same secret court that OK's wiretaps under the 1978 Foreign Intelligence Surveillance Act to judge whether the National Security Agency's domestic eavesdropping program is allowed under the Constitution.

The NSA program has been under fire since December, when The New York Times disclosed that the government was listening in -- without obtaining a court order -- on international phone calls, e-mails and other communications between people in the United States and people overseas suspected of having ties to terrorists.

Some legal scholars have said the program is an illegal and unwarranted intrusion on Americans' privacy, but the Bush administration has defended it as a necessary tool in the battle against the al Qaeda terrorist network.

Specter said Thursday that the Bush administration has agreed to accept his legislation, barring any significant changes by Congress. Specter unveiled the bill at a meeting of the Senate Judiciary Committee, which he chairs.

"I believe this is a very important matter to balance the country's needs for fighting terrorism ... with the traditional judicial review which protects civil rights," he said.

In February, Specter said FISA "flatly prohibits any kind of electronic surveillance without a court order."

Sen. Orrin Hatch, a Utah Republican and member of the committee, said the agreement reflects "a major, major change" in the White House's approach to the issue.

White House spokesman Dana Perino hailed the agreement as a sign that President Bush and Congress "are coming together to codify the capacity for future presidents to take actions to protect the country."

Legislative compromise

"The bill recognizes the president's constitutional authority and modernizes FISA to meet the threat we face from an enemy who recognizes no bounds, kills with abandon, hides and masquerades while they plot attacks against our citizens," Perino said.

Specter said his bill would give the FISA court the jurisdiction to review the constitutionality of the program and its design -- including the criteria that must be met for communications to be monitored.

In addition, the legislation would give the administration greater flexibility in making emergency applications to the FISA court, expanding its window for doing so from three to seven days. Currently, applications must be made by the attorney general or a deputy; the bill would allow a designee to make an application, Specter said.

The measure would allow for roving wiretaps instead of taps of a phone at a fixed point, he said, and spells out that monitoring a telephone call between two overseas locations that is transmitted through a U.S. terminal would not be subject to FISA approval.

Although the legislation does not mandate that the president submit the program for the court to review, Bush has agreed to do so, Specter said.

Attorney General Alberto Gonzales said the bill "recognizes the president's constitutional authority to gather up information."

He added: "My understanding from the president is that the legislation could be very helpful in protecting America if it passes in its current form, or if it passes without changes that are harmful according to the administration, that the president would be inclined to submit the program to the FISA court to test its constitutionality."

Gonzales has previously said that the 2001 congressional resolution authorizing military action against al Qaeda and the president's "inherent constitutional authority" gave the administration the power to enact wiretaps without a court order.

Contentious program

A CNN poll in May, conducted by Opinion Research Corp., found Americans were wary of the program, with half of poll respondents saying the government should obtain a warrant before eavesdropping on phone calls of suspected terrorists.

Also in May, USA Today reported the NSA has scrutinized records listing millions of telephone calls made by Americans.

The issue also came up during Senate confirmation hearings in May for Gen. Michael Hayden, who since has been sworn in as the new director of the CIA.

Hayden told the Senate Intelligence Committee that government experts, including three NSA lawyers, concluded the program disclosed by the Times was legal. The wiretaps, he said, were carried out with close government oversight and no improper activity was found.

"True accountability is not served by inaccurate, harmful and illegal public disclosures," Hayden said. "I will draw a clear line between what we owe the American public by way of openness and what must remain secret in order for us to continue to do our jobs."

CNN's Ted Barrett and Dana Bash contributed to this report.

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