GOP Moves Toward Spying Legislation

Republican senators reported progress Wednesday toward developing legislation that would impose stricter congressional and judicial oversight on the Bush administration’s warrantless domestic spying program.

Senators who took part in an ad hoc working group said there was agreement that Congress should permit such National Security Agency intercepts as long as the administration would be required to seek a court warrant at some point after a terrorist suspect had been identified. The legislation also would increase the number of members of Congress who are kept informed about the surveillance activities, probably through a special subcommittee in each chamber.

Under the program authorized by President Bush shortly after the Sept. 11 attacks, the NSA does not need a warrant to intercept international communications by people in the United States with suspected links to terrorists.

Lawmakers said that divisions remained on many specifics, though, and that it was too soon to describe the discussions as reaching a consensus.

“We’ve got to get it resolved, and we can’t bring anything to the floor until we have agreement among the core senators, which we don’t have yet,” said Sen. Mike DeWine (R-Ohio), a member of the Senate Intelligence and Judiciary committees, whose proposal appeared to be gaining support among Republican leaders.

A meeting convened Tuesday by Senate Majority Leader Bill Frist (R-Tenn.) “produced great progress in unifying senators around a core approach to terrorist surveillance legislation,” Frist said in a statement.

On Wednesday, the Senate voted, 95 to 4, to approve a bill that would add additional privacy protections to some controversial provisions of the Patriot Act, clearing the way for a four-year reauthorization of the provisions before they expire March 10.

The compromise legislation, brokered by Sen. John E. Sununu (R-N.H.), would permit recipients of subpoenas known as national security letters to challenge them in court after one year. Under current law, recipients of such subpoenas are forbidden to ever tell anyone that they have received one.

In addition, the Senate bill would prohibit national security letters from being issued to libraries when they are acting in their traditional role of providing reading materials or basic Internet access. Libraries that are Internet service providers, however, would remain subject to such demands for information.

Democrats voted overwhelmingly for the compromise, saying that it might not have gone as far as they liked but that it was an improvement from an earlier version approved by the House.

The four senators who voted against the bill were Russell D. Feingold (D-Wis.), Robert C. Byrd (D-W.Va.), Tom Harkin (D-Iowa) and James M. Jeffords (I-Vt.).

But passage of the compromise version of the bill was delayed by Feingold, its chief opponent, who extended debate by mounting a filibuster.

He conceded that the battle was lost, and spent some of the time he demanded for extended debate reading the Constitution aloud on the Senate floor.

“Obviously, at this point, final passage of the reauthorization bill is now assured,” Feingold said. “I am disappointed in this result, obviously, but I believe this fight has been worth making and my dedication to changing the Patriot Act is as strong now as it has ever been.”

A final vote on the revised Patriot Act is expected in the Senate today and in the House of Representatives next week.

On the spying controversy, senators are weighing competing proposals from DeWine and Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee.

DeWine’s proposal would authorize a spying program similar to the one Bush has described: the warrantless interception of electronic communications in suspected terrorism cases in which one party is overseas and the other is in the United States.

However, DeWine said his proposal would impose a time limit on the warrantless spying of 45 or 90 days, at which point the administration would either have to seek a warrant to continue to target a person or explain to a special congressional oversight committee why it could not do so.

In addition, DeWine said his proposal would create a special Intelligence subcommittee in both houses of Congress that would be fully briefed on the program.

“It is a fundamentally different type of oversight than what we have now,” DeWine said, referring the administration’s current periodic briefings for just eight members of Congress. “This is full oversight.”

Sen. Lindsey Graham (R-S.C.) said that he favored DeWine’s proposal but that it needed to include a stronger judicial review as soon as the program identified a suspect.

Surveillance of “the enemy has never required a warrant. That’s a military operation,” Graham said. “But focusing in on the privacy of an American citizen for an extended period of time, you need a check and balance.”

Specter’s proposal would first seek a ruling on the program’s constitutionality from a special intelligence court established by the 1978 Foreign Intelligence Surveillance Act. Under current law, that court must approve warrants for the NSA to electronically eavesdrop on people in the United States.

“I think there needs to be a determination as to what is going on constitutionally,” Specter said, adding that he was sympathetic to the administration’s concerns that providing full information to Congress could lead to leaks. “The [FISA] court is reliable. I think the court ought to pass on its constitutionality.”

But Graham said that by passing a bill to authorize the program, Congress would effectively reject the administration’s legal rationale: that the president could authorize the program on the basis of his inherent authority as commander in chief.

“If you take their inherent authority argument to its logical conclusion, there is no role for the Congress or the courts,” Graham said. “I don’t mind recognizing that the role of the commander in chief as being a robust role, but I do reject the idea that in a time of war, there is no role for Congress or the courts.”

Democrats on the Senate Intelligence Committee are pressing for a full-scale investigation of the program, including its operations and its legality. Two GOP members of the panel -- Sens. Olympia J. Snowe of Maine and Chuck Hagel of Nebraska -- have privately warned its chairman, Sen. Pat Roberts (R-Kan.), that they would support that investigation unless Republicans come up with a proposal for greater oversight over the program.

The committee’s top Democrat, Sen. John D. Rockefeller IV of West Virginia, said he intended to hold Roberts to his commitment to vote Tuesday on whether to launch an investigation.