Published: February 9 2006
Congressional Republicans are threatening to force a legal showdown with President George W. Bush over his claim that he has the constitutional power to order domestic surveillance of Americans in the name of national security.
Arlen Specter, Republican chairman of the Senate judiciary committee, said on Wednesday he was drafting legislation that would require the administration to seek a ruling from a special US intelligence court on whether the spying programme was legal.
The move could put the Republican-controlled Congress on a collision course with the administration, which has insisted that it is acting legally in monitoring calls and e-mails that might help disrupt future terrorist plots.
The US has been embroiled in a contentious debate over security versus civil liberties since the revelation in December that the National Security Agency had been intercepting communications on US soil since early 2002. The administration says the effort is aimed narrowly at communications involving suspected members of al-Qaeda or their supporters, but in order to identify such suspicious conversations many suspect that the NSA is combing through a far broader range of ordinary calls and e-mails.
On its face, the programme appears to violate the 1978 Foreign Intelligence Surveillance Act (Fisa), in which Congress required that domestic eavesdropping for intelligence purposes could only be done with warrants from a special court set up under Fisa. Alberto Gonzales, the attorney-general, failed to persuade Democrats and many Republicans in all-day Senate testimony on Monday that the president has inherent wartime powers that allowed him to bypass that requirement.
Mr Specter said his proposed legislation would require the administration to take that issue to the Fisa court. He said the administration’s claim “may be right, but on the other hand they may be wrong”.
He said the Fisa court should determine whether the programme is legal, and if it is not what changes would be required.
Mr Specter’s threat is only the latest sign that the NSA spying revelations have divided Republicans, with some in the party fearing that Mr Bush’s expansive claims may pose a danger to civil liberties. The administration has also been criticized for briefing only congressional leaders and senior members of the intelligence committee on the programme.
But on Wednesday, Mr Gonzales and Michael Hayden, deputy director of national intelligence, gave their first briefing on the surveillance effort to all members of the House intelligence committee, according to Heather Wilson, a Republican on the committee who had called for more complete briefings.
Ms Wilson, who chairs a subcommittee that oversees the NSA, said she was still learning the facts of the programme. But she said it might be time to update the 1978 law on foreign intelligence surveillance.
“Technology is changing, and we have to keep up and keep pace with that technology to make sure our intelligence agencies have the tools they need to keep us safe,” she said.