Bill Would Allow Warrantless Spying

The Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers, under legislation introduced yesterday by key Republican senators.

The four senators hope to settle the debate over National Security Agency eavesdropping on international communications involving Americans when one of the parties is suspected of terrorist ties. President Bush prompted a months-long uproar when he said that constitutional powers absolve him of the need to seek warrants in such cases, even though the 1978 Foreign Intelligence Surveillance Act requires warrants for domestic wiretaps.

The program, begun in 2001, was first publicized late last year.

The bill would allow the NSA to eavesdrop, without a warrant, for up to 45 days per case, at which point the Justice Department would have three options. It could drop the surveillance, seek a warrant from FISA’s court, or convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance “is necessary to protect the United States,” according to a summary the four sponsors provided yesterday. They are Mike DeWine (Ohio), Lindsey O. Graham (S.C.), Chuck Hagel (Neb.) and Olympia J. Snowe (Maine).

All but Graham are members of the sharply divided intelligence committee, whose Democratic members have unsuccessfully sought an investigation into the NSA program. Hagel and Snowe threatened last month to join the Democrats’ request unless the administration and Congress agreed on a way to bring the wiretap program under the review of FISA’s court and Congress.

It is far from clear whether the bill can win passage. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) — whose panel plays a major role in the surveillance matter — pointed his thumb down yesterday when asked about the measure. He said he particularly objects to letting the government “do whatever the hell it wants” for 45 days without seeking judicial or congressional approval.

The Senate intelligence committee’s chairman, Pat Roberts (R-Kan.), who has defended the administration’s actions, said seven members of a newly appointed subcommittee should be given time “to complete their review of the program before moving ahead with legislation.” He added: “I am concerned that some of the procedural requirements included in the bill may limit the program’s effectiveness.”

Committee Vice Chairman John D. Rockefeller IV (D-W.Va.) said through a spokeswoman that it is “too soon to consider legislation until the oversight subcommittee can answer critical questions about the program.”

DeWine told reporters that White House officials “agree with the general concept” of the bill. Most Americans think “this type of surveillance should continue,” he said, but Congress must impose oversight.

Details of the program, and Justice Department requests for exemptions from FISA warrants, would go only to the seven-member Senate subcommittee and a similar House intelligence subcommittee yet to be named. Both subcommittees would include Democrats and Republicans.

The bill introduced yesterday calls for fines of up to $1 million and prison terms of up to 15 years for those who disclose “classified information related to the Terrorist Surveillance Program,” the administration’s name for the NSA operation. The penalties would not apply to journalists.

Charles Babington