Senate Takes Step Closer to Domestic Spying Oversight

Federal judges give a boost to legislation that would bring court scrutiny to the Bush administration's domestic spying program. At a Senate Judiciary Committee hearing, the judges reacted favorably to a proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

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RENEE MONTAGNE, host:

And former members of a secret surveillance court have told a Senate committee they think it's a good idea to have judges review warrantless spying by the National Security Agency. The judges also said there's no way to guarantee that the executive branch will abide by the court's rulings. NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

At least one judge from the Foreign Intelligence Surveillance Court is rumored to have resigned from that body over concerns that NSA surveillance sidesteps the court's authority. Judge James Robertson stepped down shortly after the program was revealed in the media last December.

Senator, Arlen Specter, chair of the Senate Judiciary Committee, has proposed having the court review any warrantless surveillance efforts. At a hearing yesterday Specter quoted from a letter Robertson sent endorsing Specter's bill.

Senator ARLEN SPECTER (Republican, Pennsylvania; Chairman, Senate Judiciary Committee): Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way.

ABRAMSON: Specter invited a panel of former intelligence judges and experts to comment on his proposal. What he got was a lot of conflicting testimony about whether new legislation will ease or exacerbate discomfort over warrantless spying.

Take Florida judge Allan Kornblum who prepared thousands of requests to the Foreign Intelligence Surveillance Court during his years at the Justice Department and as legal advisor for the court. Kornblum said court supervision need not slow down intelligence gathering.

Judge ALLAN KORNBLUM (Magistrate Judge, U.S. District Court, Northern District, Florida): Intelligence and counter-intelligence activities are fully enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

ABRAMSON: But at the same time, Kornblum agreed with the administration's argument that the president must gather the intelligence needed to protect the country by any means necessary. The President has asserted court supervision will just slow down eavesdropping. Senator Dianne Feinstein asked Judge Kornblum whether the administration might reject any new laws for the same reason.

Senator DIANNE FEINSTEIN (Democrat, California; Member, Senate Judiciary Committee): Is such a law that provides both the authority and the rule for carrying out those authority--that authority--are those rules then binding on the president?

ABRAMSON: After a very long pause and some chuckling, Kornblum and the other judges had to concede...

Judge KORNBLUM: Uh, no president has ever agreed to that.

ABRAMSON: Civil liberties groups say that's why new legislation won't help. Lisa Graves of the ACLU says Congress should require the administration comply with existing laws before passing new ones.

Ms. LISA GRAVES (Senior Counsel for Legislative Strategy, American Civil Liberties Union): They don't even have to test it in court. They can just simply secretly decide not to comply with our laws--which is an extraordinary threat to the nature of the rule of law in our democracy.

ABRAMSON: That's just another reason why opponents of the program are still struggling. They fear Congress will just step aside if the surveillance court oversees warrantless spying and that, they worry, could just make it harder to monitor government eavesdropping. Larry Abramson, NPR News, Washington.

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