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NSA's spy program might get court test


WASHINGTON -- President Bush has agreed on a plan to submit the National Security Agency's controversial domestic electronic surveillance program to a secret court for a limited review of its constitutionality, senators and White House officials said yesterday.

Under the plan, Bush would sign legislation allowing the Foreign Intelligence Surveillance Court, which reviews government requests for wiretaps, to decide whether the administration has the legal authority in terrorism investigations to eavesdrop on American citizens without first obtaining warrants.

The tentative agreement would mark a concession by the administration, which has insisted the president has the constitutional authority to authorize the warrantless surveillance, initiated after the Sept. 11 attacks. But lawmakers have questioned the absence of congressional approval and have proposed ways of providing oversight and control of the program.

The deal announced yesterday between Bush and Sen. Arlen Specter, a Pennsylvania Republican who is chairman of the Senate Judiciary Committee, provides the White House with a key congressional ally. However, it's not clear that Specter's proposal will be agreeable to the whole Senate. Other proposals, such as one backed by a group of Republicans including Sen. Lindsey Graham of South Carolina, would require more extensive NSA review.

Specter's own approach stands to be amended during the legislative process, making it unacceptable to the White House. And key members of the Senate Intelligence Committee and the chamber's leadership have yet to declare their support for Specter's approach.

Specter said his proposal would achieve his goal of getting the program reviewed by a U.S. court. However, the legislation also has an upside for the administration, giving it the power to transfer a number of lawsuits challenging the NSA program to the Foreign Intelligence Surveillance Court.

Specter acknowledged the unusual negotiations with both Bush and Vice President Dick Cheney that led to the agreement. Under the deal, Bush is not legally obligated under all circumstances to submit the NSA warrantless surveillance program for review. If the legislation outlined by Specter undergoes any changes opposed by the administration, Bush could refuse to let the court review the program.

"The bill does not mandate the president to submit the program to the court because the president did not want to institutionally bind presidents in the future," Specter said at a news conference. "And I respect that and understood his point of view."

The White House said it agreed to the deal because Specter recognized the president's constitutional authority to conduct intelligence operations.

"This agreement is the president and Congress coming together to codify the capacity of future presidents to take action to protect the country," said Dana Perino, a deputy White House press secretary traveling with Bush. "The bill recognizes the president's constitutional authority and modernizes [the Foreign Intelligence Surveillance Act] to meet the threat we face from an enemy that kills with abandon and hides as they plot attacks."

However, civil liberties groups questioned the deal, and the administration's motives.

"This Specter-Cheney bill is nothing short of a capitulation by Chairman Specter to the White House," said Anthony Romero, executive director of the American Civil Liberties Union. "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."

If the Foreign Intelligence Surveillance Court were to reject the program, the legislation gives the administration the right to make changes in the program and resubmit it for review. The administration would also have the right to make an immediate appeal.

Specter said there was no requirement that the secret federal court disclose its decisions concerning the spying program.

U.S. Attorney General Alberto R. Gonzales told reporters the legislation had other benefits for the administration.

"It recognizes the president's constitutional authority to gather up information," Gonzales said. "It reflects changes in technology. There are changes ... that I think will allow us to remain efficient and effective in gathering up information."

Richard B. Schmitt and James Gerstenzang write for the Los Angeles Times.

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