GOP's Specter On Unchanged Bush Wiretapping Program: "For Every Day That Passes, There's An Invasion Of Privacy That Could Be Cured"

The New York Times
Despite a Year of Ire and Angst, Little Has Changed on Wiretaps
By ERIC LICHTBLAU

WASHINGTON, Nov. 24 — When President Bush went on national television one Saturday morning last December to acknowledge the existence of a secret wiretapping program outside the courts, the fallout was fierce and immediate.

Mr. Bush’s opponents accused him of breaking the law, with a few even calling for his impeachment. His backers demanded that he be given express legal authority to do what he had done. Law professors talked, civil rights groups sued and a federal judge in Detroit declared the wiretapping program unconstitutional.

But as Democrats prepare to take over on Capitol Hill, not much has really changed. For all the sound and fury in the last year, the National Security Agency’s wiretapping program continues uninterrupted, with no definitive action by either Congress or the courts on what, if anything, to do about it, and little chance of a breakthrough in the lame-duck Congress.

While the Democrats have vowed to press for more facts about the operation, they are of mixed minds about additional steps.

Some favor an aggressive strategy that would brand the program illegal and move to ban it even as the courts consider its legality. Others are more cautious, emphasizing the rule of law but not giving Republicans the chance to accuse them of depriving the government of important anti-terrorism tools.

Representative Nancy Pelosi of California, who will take over as House speaker in January, favors an investigation to determine how the security agency’s program actually operated and what its legal framework is under the Foreign Intelligence Surveillance Act of 1978, a senior aide to Ms. Pelosi said. Administration officials said they were concerned they could have to shut down a program they deemed vital to national security.

The 1978 law requires counterterrorism officials to obtain court orders to eavesdrop on people inside the United States. But the security agency’s program involved eavesdropping without warrants on the international telephone and e-mail communications of Americans and others in this country suspected of links to Al Qaeda and other terrorist groups.

Congressional Republicans, for their part, see a missed opportunity to resolve the many questions hovering over the operation during a year in which they still commanded majorities in the House and Senate.

“We could’ve fixed this early on,” said Senator Arlen Specter, Republican of Pennsylvania, chairman of the Senate Judiciary Committee and a believer that the surveillance program violates the 1978 law.

“For every day that passes,” Mr. Specter said in an interview, “there’s an invasion of privacy that could be cured.”

To understand the helter-skelter nature of the debate over the wiretapping program, one need look no further than Mr. Specter.

After the program was publicly disclosed last Dec. 15, the senator called it an “inappropriate” usurpation of presidential authority that “can’t be condoned.” He signed onto a bill last summer written by Senator Dianne Feinstein, Democrat of California, that would effectively ban the program as it is now operated and require a court order for all wiretapping of Americans.

Then, after a series of confidential meetings with the White House, Mr. Specter worked out a compromise to bring the program before a secret intelligence court to test its constitutionality. He was promptly pummeled by Democrats and editorial writers for giving away too much to the White House.

Mr. Specter changed course again last week and submitted yet another proposal that would require warrants for eavesdropping on communications coming out of, but not into, the United States, and would put the whole issue on a fast track to the Supreme Court. Its fate, like its predecessors’, is unclear.

Along the way, Mr. Specter has clashed with politicians on the left and the right. He got into a public spat with Vice President Dick Cheney when the latter succeeded in keeping Mr. Specter from subpoenaing telecommunications executives to testify about cooperation with the security agency, and he traded terse words with Senator Russell D. Feingold, Democrat of Wisconsin, over Mr. Feingold’s efforts to have the Senate vote to censure the president over the wiretapping.

“It’s always difficult,” Mr. Specter said, “to get legislation on a controversial issue that has such political overtones.”

The lack of a resolution has left many shaking their heads. Some officials said the unanswered questions had cast doubt on the public credibility of broader intelligence operations and created occasional confusion among intelligence agents over what was and was not allowed in tracking terrorism suspects.

“There’s a lot of uncertainty over this program,” said a former senior intelligence official who spoke on condition of anonymity because the wiretapping program is classified.

“We’ve had a wasted year at this point,” the former official said, “and nothing has been done to try to really figure out how or whether we should amend the process.”

The program was secretly approved by Mr. Bush weeks after the Sept. 11 attacks. Since then, the security agency, which has historically been restricted from spying within the United States, has monitored thousands of international telephone calls and e-mail messages to and from people in this country, people with knowledge of the operation say. Senior administration officials say it has been critical in helping to identify previously unknown plots, but other government officials involved in the operation have said that it has often led to dead ends and to people with no clear links to terrorism.

The administration has steadfastly defended the program and has warned of a serious threat to national security were it stopped.

In a speech last week, Attorney General Alberto R. Gonzales labeled as “myth” the idea that the program “is an invasion of privacy and an unlawful eavesdropping tool.” The program, he said, “does not invade anyone’s privacy, unless you are talking to the enemy in this time of war.”

The legal authority, the administration argues, rests on both the president’s inherent constitutional authorities as commander in chief as well as a Congressional resolution passed days after Sept. 11 that authorized the use of military force against Al Qaeda.

The only judge to rule directly on the question, Judge Anna Diggs Taylor of Federal District Court in Detroit, rejected the administration’s claims to broad executive authority, ruling the program illegal in August and ordering it shut down.

“There are no hereditary kings in America and no powers not created by the Constitution,” the judge wrote.

The Justice Department is appealing that decision, as well as a separate ruling in San Francisco allowing lawsuits against telecommunication companies to proceed. In that case, Judge Vaughn Walker of Federal District Court rejected the government’s assertion that the lawsuits should be quashed because they touched on “state secrets” and risked harming national security.

Justice Department officials said they were hopeful they would succeed in overturning the Detroit ruling, but they acknowledged they were concerned over where the courts would ultimately come down.

“It would certainly be good to have clarity on this,” said a senior Justice Department official, who was given anonymity to discuss the department’s internal thinking. “Do people want resolution on a program this important? Sure.”

Even after the Democrats won control of Congress this month, Mr. Bush pushed the passage of wiretapping legislation as a priority for the lame-duck session that concludes next month. During that brief window before Democrats take power, administration officials also hope to push through related measures that would effectively insulate telecommunications and government officials from legal liability growing out of the wiretapping.

But Republicans and Democrats alike give the White House virtually no chance of moving substantive wiretapping legislation before January.

An aide to Ms. Pelosi noted that the White House has until now agreed only to limited briefings on the program.

“There is bipartisan interest in seeing whether the administration’s claims that the program can’t comply with F.I.S.A. are indeed so,” the aide said. “We were legislating on an issue where the full parameters were not known or well understood.”