Senate Panel Sends a Mixed Message on Wiretapping

Times Staff Writer

A divided Senate Judiciary Committee, muddying the outlook for an issue Republicans consider key to the midterm elections, on Wednesday approved widely divergent bills aimed at overhauling domestic eavesdropping laws.

The committee endorsed a White House-backed measure that would give President Bush broad authority for his warrantless wiretapping program. It also approved legislation by Sen. Dianne Feinstein (D-Calif.) that would largely preserve a 1978 law governing domestic spying while making few provisions for new executive powers.

While one lawmaker decried the Senate approach as “totally contradictory,” the House Judiciary Committee abruptly canceled a vote on its own version of the surveillance reform law amid signs of dissension among Republicans there.

Meanwhile, three GOP senators -- John W. Warner of Virginia, John McCain of Arizona and Lindsey Graham of South Carolina -- on Wednesday underscored their opposition to an administration plan to reinterpret the Geneva Convention as part of setting up procedures to try suspected terrorists before military tribunals. Graham said the proposal was “not necessary,” adding: “It makes me suspicious as to why we need to do it.”


The mixed bag of action and reaction came as the White House announced that Bush planned to make a rare visit to Capitol Hill today to confer with House Republicans and push his national security initiatives.

The White House said it was confident that lawmakers ultimately would enact the measures Bush was promoting. But the growing disharmony over the president’s tribunal plan drew warning shots Wednesday from some administration officials.

In a conference call with reporters, John D. Negroponte, director of national intelligence, warned that if an alternate version of the tribunal bill proposed by McCain passed, the CIA would be forced to shut down its interrogation program.

“If it goes forward as proposed, this will not allow for the CIA high-value terrorist detention program to go forward,” Negroponte said.


The Judiciary Committee’s eavesdropping vote was a rare rebuke for an administration that has tested the limits of executive power since Sept. 11.

The panel’s eight Democrats were joined by two Republicans -- Graham and the committee’s chairman, Sen. Arlen Specter of Pennsylvania -- in approving the Feinstein measure.

Specter has been the driving force behind the White House surveillance bill, which he brokered with Vice President Dick Cheney over the summer. But he said he voted for both bills -- he had previously been a sponsor of the Feinstein legislation -- because each had important attributes.

Some members of the panel, however, said the committee was passing the buck by sending multiple and conflicting legislation to the floor. A central premise of the Feinstein legislation was “totally contradictory to legislation we just passed,” said Sen. Jon Kyl (R-Ariz.). “What kind of message does that send to our colleagues?”


Others said that the panel’s action showed a lack of understanding of the issues at hand.

By moving along bills “that are flatly contradictory, they are saying that they don’t really understand what they are doing,” said James X. Dempsey, policy director of the Center for Democracy and Technology, a Washington-based advocacy group. “Throwing the issue open to floor debate in a partisan atmosphere is probably the worst possible way of resolving complex issues at the intersection of technology, national security and constitutional doctrine.”

Under the domestic surveillance program, the National Security Agency has intercepted communications between suspected terrorists abroad and people in the United States. The program has been a flashpoint in the post-Sept. 11 debate over liberty and security since being divulged in media reports in December.

The administration has acknowledged that in conducting the program, it did not obtain warrants from the court established by Congress under the Foreign Intelligence Surveillance Act, or FISA, in 1978 to monitor all domestic surveillance in terrorism and espionage cases. The president, the administration said, had the power to order the monitoring without going through those channels.


The Specter bill incorporates that view.

But Feinstein’s bill affirms what she and others say was the original intent of the 1978 law, and makes it clear that the FISA court is the exclusive authority for approving such requests.

Whereas the administration has expressed concern that the FISA court process is too cumbersome in an age of cellphones and Internet-savvy terrorists, Feinstein’s solution would focus on expanding current emergency provisions in the law.

The legislation would extend -- from the current 72 hours to seven days -- the time allowed for emergency surveillance before a warrant application must be submitted to the FISA court. It also would augment the 15-day wartime exception for wiretapping without court approval to include incidents of congressional authorization for the use of force or a national emergency created by a terrorist attack.


“I am a happy camper at this point,” Feinstein told reporters after the vote. “I think we can get Republicans. We’ll see.”

Republicans view national security as their greatest political strength in their battle to keep control of Congress in the November midterm elections. And on Wednesday, the House Armed Services Committee approved a tribunal measure that closely tracked the administration’s proposal.

“I can think of no better way to honor the fifth anniversary of Sept. 11 than by establishing a system to prosecute the terrorists who, on that day, murdered thousands of innocent civilians and who continue to seek to kill Americans both on and off the battlefield,” said Rep. Duncan Hunter (R-El Cajon), the committee’s chairman.

The Senate Armed Services Committee is scheduled to meet behind closed doors today in an effort to write its own version of the bill. The legislation was necessitated by a Supreme Court ruling in June that the administration’s earlier rules for trying suspected terrorists violated U.S. and international law.


The administration’s proposal would, among other things, redefine Common Article 3 of the Geneva Convention, which establishes a baseline level of treatment for all combatants. Administration officials have said the changes are necessary to protect interrogators from prosecution or civil suits.

“This is an attempt not to alter Geneva, nor to avoid the purposes of Geneva, but rather to give it the kind of clarity we felt [was] required,” Negroponte said Wednesday. “We feel there are parts of Common Article 3 under Geneva that are vague.”

That vagueness, Negroponte said, meant that CIA interrogators could not be certain they were behaving in a lawful manner.

But McCain and others have said that the changes also could have the effect of putting U.S. troops at risk.


“The overwhelming majority of retired military people are weighing in on this issue and saying, ‘Don’t amend Common Article 3,’ ” the Arizona lawmaker said Wednesday.

“How we interpret Common Article 3, and any effort to undercut its meaning, will be taken into account by our enemies in future conflicts,” McCain added. “We are concerned about the plight of American servicemen and women who may be captured in future conflicts.”



Times staff writers Richard Simon and Julian E. Barnes contributed to this report.