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Wiretapping investigation stymied
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February 18, 2006
Senate Chairman Splits With Bush on Spy Program
By SHERYL GAY STOLBERG
WASHINGTON, Feb. 17 — The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary.
The chairman, Senator Pat Roberts, Republican of Kansas, said he had some concerns that the court could not issue warrants quickly enough to keep up with the needs of the eavesdropping program. But he said he would like to see those details worked out.
Mr. Roberts also said he did not believe that exempting the program from the purview of the court created by the Foreign Intelligence Surveillance Act "would be met with much support" on Capitol Hill. Yet that is exactly the approach the Bush administration is pursuing.
"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."
Mr. Roberts spoke in an interview a day after announcing that the White House, in a turnabout, had agreed to open discussions about changing surveillance law. By Friday, with Mr. Roberts apparently stung by accusations that he had caved to White House pressure not to investigate the eavesdropping without warrants, it appeared the talks could put the White House and Congress on a collision course.
White House officials favor a proposal offered by another Republican senator, Mike DeWine of Ohio, whose bill would exempt the eavesdropping from the intelligence court. Mr. DeWine wants small subcommittees to oversee the wiretapping, but Mr. Roberts said he would like the full House and Senate Intelligence Committees to have regular briefings.
"I think it's the function and the oversight responsibility of the committee," he said, adding, "That might sound strange coming from me."
Mr. Roberts's comments were surprising because he has been a staunch defender of the program and an ally of White House efforts to resist a full-scale Senate investigation. On Thursday, he pushed back a committee vote on a Democratic push to conduct an inquiry, saying he wanted to give the White House time to negotiate on possible legislation. On Friday, he dismissed accusations that he had bowed to pressure.
"The irony of this is that it is portrayed now as administration pressure brought to bear on us, meaning the Republicans on the committee and basically me," Mr. Roberts said Friday. "It's just the reverse. It's the Republicans on the committee, my staff and myself, who have been really — I don't want to say pressuring, but trying to come up with a reasonable compromise that will settle this issue. It was our activity that brought them along to this point, plus the possibility of an investigation."
The eavesdropping, authorized in secret by President Bush soon after the attacks of Sept. 11, 2001, has allowed the National Security Agency to monitor the international telephone and e-mail communications of hundreds, perhaps thousands, of people within the United States — without warrants — when the authorities suspect they have links to terrorists.
Democrats and a growing number of Republicans say the program appears to violate the 1978 Foreign Intelligence Surveillance Act. Some Republicans are also skeptical of the Bush administration's assertion that it has the inherent constitutional authority to conduct the eavesdropping, and that Congress authorized the program when it passed a resolution after Sept. 11 giving Mr. Bush authority to use military force to defend the nation.
In the House, Republicans on the Intelligence Committee have agreed to open an inquiry prompted by the surveillance program and are debating how broad it should be. Mr. Roberts said he had not spoken to Representative Peter Hoekstra, the Michigan Republican who is chairman of the House Intelligence Committee, about what the House panel is doing.
Representative Heather A. Wilson, Republican of New Mexico and chairwoman of the House Intelligence subcommittee that oversees the National Security Agency, has pressed for a broad investigation, but Mr. Hoekstra's aides have said that any inquiry would be limited to an examination of the FISA law.
The Senate intelligence chairman, Mr. Roberts, said he believed the administration had the constitutional authority for the program, but added, "We would be much more in concert with the Congress and everybody else and the FISA court judges" if the court oversaw the program.
As panel chairman, Mr. Roberts holds great sway. An aide to the senator said he had some specific ideas that he had been privately discussing with committee members and other lawmakers. But neither the senator nor the aide, who spoke on condition of anonymity because of the delicate nature of the negotiations, would make those ideas public.
Nor will Mr. Roberts have final say over what form legislation will take; rather, his ideas are circulating in an environment that one Congressional aide, referring to the Winter Olympic Games, said was "sort of like snowboardcross, with four proposals shooting out of the gate, jockeying for position."
Another senior Senate Republican, Arlen Specter, the chairman of the Judiciary Committee, has proposed legislation that would allow the FISA court to pass judgment on the program's constitutionality. And Senator Olympia J. Snowe, Republican of Maine and a member of the intelligence panel, said Friday that she believed the eavesdropping must come under the purview of the judiciary.
"I think we do have to have judicial review," she said, adding, "Whether it's the FISA approach or not I think remains in question, but it can't go on in perpetuity, and it can't be unfettered warrantless surveillance."
Whether Republicans can agree remains to be seen. "People are all over the place," Mr. DeWine said. "We don't have a consensus."
The White House has been in talks with Mr. DeWine, who said Harriet E. Miers, the White House counsel, called him on Wednesday night, on the eve of the Senate Intelligence panel's scheduled vote, to discuss his legislation.
"What we have talked about with some Congressional leaders is codifying into law what his authority already is," Scott McClellan, the White House spokesman said in an interview Friday, referring to the president. He added, "Senator DeWine has some good ideas, and we think they're reasonable ideas."
Since the program's inception, the White House has provided information about it to members of the "Gang of Eight," the Democratic and Republican leaders of the House and Senate, and the senior Democrat and Republican on the intelligence panels in both chambers. Last week, the Bush administration went further, revealing details of the program to all members of the House and Senate intelligence panels.
Mr. DeWine said his proposal called for an intelligence subcommittee with "professional staff" to have oversight. "It would be fundamentally different than doing it by the Gang of Eight, where there's really no staff," he said, adding, "The key is oversight."
Elisabeth Bumiller contributed reporting for this article.
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