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Congress ‘Flying Blind’ on NSA Issue, Some Say

Times Staff Writers

Since the first revelations about the National Security Agency’s warrantless surveillance, the struggle over information about the program has been as contentious as the debate over the wiretapping itself.

For months, Democrats in Congress have accused the White House of stonewalling questions about the program and have charged that Republicans have failed to press hard enough for answers. Some GOP senators joined in the complaints that Congress had been left too much in the dark.

Those disputes appeared to be waning this spring. But they were reignited Thursday with the report in USA Today that the NSA has secretly collected the phone call records of millions of Americans. That report instantly renewed calls from lawmakers in both parties for the administration to answer questions about the range of surveillance activities it has undertaken since the Sept. 11 terrorist attacks.

“We’re really flying blind on the subject, and that’s not a good way to approach ... the constitutional issues involving privacy,” said Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

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Administration allies -- such as Sen. Pat Roberts (R-Kan.), chairman of the Senate Select Committee on Intelligence -- insisted that select members of Congress had been provided all the information needed on the NSA operations.

The debate over whether enough members of Congress know enough about the surveillance seems likely to spill into the confirmation hearings for Air Force Gen. Michael V. Hayden, the former NSA director whom President Bush has nominated to run the CIA.

But the rekindled argument also is likely to complicate the push from Specter and other Republicans for legislation providing explicit legal authority for the NSA warrantless surveillance. The new disclosure about the scope of surveillance has hardened Democrats’ conviction that Congress knows too little about the NSA’s program to set rules for it.

“It is a mistake to try to legislate knowing so little about the president’s illegal wiretapping program, particularly in light of new information that the government has been compiling databases using millions of Americans’ phone calls,” said Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee.

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Even Sen. Lindsey Graham (R-S.C.), co-sponsor of a bill that would expand the NSA’s surveillance authority, said Congress needed to know more before it could reach consensus on a new legal framework for the spying.

“I think it would behoove the administration to share the information necessary to construct a statute that would keep the program viable,” Graham said. “The way we are doing this is so haphazard.”

Specter, who conducted committee hearings this year on the NSA surveillance, said he would convene a session on the phone-record disclosure. But he also indicated he would move ahead next week with committee consideration of his legislation, which would require the administration to obtain a judgment on the legality of the NSA program from the special court established by the 1978 Foreign Intelligence Surveillance Act. That is the court the program has bypassed on Bush’s authorization.

The alternative legislation Graham has co-sponsored with Republican Sens. Mike DeWine of Ohio, Chuck Hagel of Nebraska and Olympia J. Snowe of Maine would limit warrantless NSA eavesdropping on someone in the U.S. to 45 days. After that, the administration would be required to seek a court warrant to continue spying on the person’s allegedly terrorist-affiliated international communications, or explain to a Senate subcommittee why it could not.

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Democrats are dubious of both proposals -- and, more broadly, of the idea of writing rules for the NSA program while many questions about it remain.

Republican strategists close to the White House said Thursday they would welcome an argument with Democrats over the surveillance program -- the same stance the GOP aides took after the initial NSA revelations in December.

“When the debate is about NSA and fighting terrorists, that’s good ground for the White House, and I think the attitude of Republicans ought to be, ‘Bring it on,’ ” said one senior GOP strategist. He requested anonymity when discussing White House thinking.

For the most part, polls have found that slightly more Americans support than oppose the warrantless surveillance program involving international communications. Attitudes on the issues raised by the new disclosure may be more fluid.

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By 3 to 1, Americans surveyed by the Pew Research Center this year said they would oppose government monitoring of their phone calls and e-mail. But in a recent Times/Bloomberg poll, almost half of respondents said they would not mind if government monitored their calls in the fight against terrorism.

In their initial reactions Thursday, congressional Democrats criticized the phone-record program -- but not as vehemently as they did the revelations five months ago about the warrantless wiretapping. Instead, many argued the new disclosure demonstrated the need for more aggressive Capitol Hill oversight of the surveillance.

The Senate Judiciary Committee has held three hearings, including one with Atty. Gen. Alberto R. Gonzales, on the administration’s legal justifications for the warrantless surveillance. Democrats and some Republicans complained that the hearings answered few questions.

“The Judiciary Committee hearings have never achieved what they should have achieved,” said Sen. Russell D. Feingold (D-Wis.), a committee member who in March introduced a resolution to censure the president for the warrantless surveillance.

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Democrats on Thursday noted that Specter had specifically asked Gonzales in a Feb. 13 letter whether the administration had sought information from telecommunications companies. In a March 24 response, Gonzales said he could not “confirm or deny operational details of the program.”

In a March party-line vote, the Senate Intelligence Committee rejected a Democratic proposal for a full-scale investigation of the NSA program. Consulting with the White House, committee Republicans instead voted to establish a seven-member subcommittee to receive briefings on the surveillance activities.

Roberts said the subcommittee was doing its job and “calls for further oversight are unnecessary.”

Sen. Carl Levin (D-Mich.), a subcommittee member, would not say whether he had been briefed on the alleged phone logs. But he complained that Congress -- including the subcommittee -- had not yet been fully informed about the NSA’s activities.

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“Our briefings aren’t complete. There’s a significant way to go,” Levin said.


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