Bush puts secret spy scheme to judicial review

George Bush, the US president, has agreed to subject his once-secret domestic spying programme to a judicial review that may determine whether it violates the US constitution.

Disclosure of the agreement came yesterday as the White House sought to end a dispute with Congress on the monitoring of the international calls and emails of US citizens suspected of terrorism.

Breaking with historic norms, Mr Bush had authorised the wiretapping without court warrants.

Under a deal with the US senate’s judiciary committee chairman, Arlen Specter, Mr Bush agreed to support a bill that could submit the programme to the foreign intelligence surveillance court for constitutional revie.

“You have here a recognition by the president that he does not have a blank cheque,” said Mr Specter. As a leading critic of the programme, the Republican senator had broken ranks with his party.
But Democrat and civil libertarian opponents of the programme attacked the proposals, saying that they at best failed to limit the programme and at worst promoted it.

Anthony Romero, executive director of the American Civil Liberties Union, described the bill as a “capitulation” of Congress to the White House.

“The ‘review’ contained in the bill is nothing more than a sham. The president could still choose to ignore the optional court oversight on the program,” he said.

“This new bill would codify the notion that the president is not bound by the laws passed by congress or the constitution. It would reward his abuse of power.”

Patrick Leahy, the Senate judiciary committee’s top Democrat, called the potential legislation “an interesting bargain”: “He’s saying ‘if you do every single thing I tell you to do, I’ll do what I should have done anyway’.”

The wiretapping programme caused widespread controversy in the US when it was revealed in December.

American intelligence agencies monitor vast amounts of communications between foreigners, but under the fourth amendment to the constitution they are prevented from spying on American citizens without warrants.

But the programme, run by the National Security Agency (NSA), allowed the phone calls and email of hundreds and possibly thousands of Americans to be monitored without court approval.

The Bush administration initially resisted efforts to write a new law, contending that no legal changes were needed and that warrantless surveillance had been practiced by previous governments back to the time of George Washington.

But more than 100 lawsuits have been filed against the programme in US courts and after months of pressure, officials have grown more open to legislation.

The US attorney general, Alberto Gonzales, said the legislation would allow him to consolidate legal challenges at the intelligence court, which he described as a one-off test of the programme’s constitutionality.

He added that the White House supported Mr Specter’s bill because it would still allow the US government to continue to collect information. “My understanding from the president is that the legislation could be very helpful,” he said.

The law would require Mr Gonzales to provide Congress with reports on the programme every six months and to explain its legal basis and usefulness in combating terrorism before the secret FISA court.

But it would also increase the amount of time that the NSA was able to conduct wiretaps without seeking warrants from three to seven days, and would allow the agency to carry out “roving wiretaps” that would follow a target from device to device.

© Guardian Newspapers Limited 2006