WASHINGTON – The attorney general would have to get approval from a secretive intelligence court every 45 days to preserve the Bush administration's controversial surveillance program, according to a draft bill from the Senate Judiciary Committee chairman.
The proposal being developed by Sen. Arlen Specter, R-Pa., would require the Justice Department to ask the Foreign Intelligence Surveillance Court to determine whether the program is constitutional. The court also would have to certify the government is collecting information when there is probable cause to believe the program "will intercept communications of the foreign power or agent of a foreign power."
Called the National Security Surveillance Act, the draft measure is the first Republican legislation to surface publicly since the program was disclosed two months ago.
Specter has discussed the broad outlines of his proposal, and national security law experts questioned whether it would inappropriately force the Foreign Intelligence Surveillance Court to issue so-called advisory opinions.
The Supreme Court has held that the Constitution prohibits federal courts from issuing such opinions when there is no actual case or controversy between two parties. A summary of the draft bill, circulating in intelligence and legal community circles, argues that the proposal does not violate that principle.
"Currently, when a law enforcement officer requests permission for a wiretap, the court assesses whether that wiretap is constitutional and supported by probable cause," the summary says. "It is undisputed that this procedure does not constitute an 'advisory opinion."'
Under the plan, the intelligence court would conduct regular reviews of the program and would evaluate whether the government has followed previous authorizations that are issued. The attorney general also would be required to report to the House and Senate intelligence committees every 45 days.
Republican lawmakers have been working on legislation aimed at writing the administration's program into law. While insisting the program is legal now, White House officials recently said they are willing to work with Congress if it feels further "codification" of the program is needed.
The White House has signaled it favors a competing proposal from Sen. Mike DeWine, R-Ohio, that would exempt the program from the Foreign Intelligence Surveillance Act and set up a special congressional committee to review the eavesdropping.
Specter plans to hold a hearing Tuesday -- the Judiciary Committee's second -- to consider wartime executive power and the NSA program. The committee has been seeking testimony from former Attorney General John Ashcroft and his deputy, James Comey.
Neither is scheduled to appear at Tuesday's session with legal experts and former CIA Director Jim Woolsey.