WASHINGTON – Senate Democrats agreed Wednesday to give the government greater authority to spy on foreign terror suspects, but only temporarily and with court review of the attorney general's role in deciding how the power is used.
The proposal by Senate Intelligence Chairman Jay Rockefeller sought to strike a balance between an urgency to uncover terror plots and a concern by lawmakers about giving more power to the administration and its embattled attorney general, Alberto Gonzales.
White House plans to remove any oversight of the spying operations by the Foreign Intelligence Surveillance Court "is simply unacceptable," said Rockefeller, D-W.Va.
The court, which oversees the Foreign Intelligence Surveillance Act, "must continue to play an essential role in authorizing surveillance and overseeing its execution," Rockefeller said. "They are the trusted steward of FISA, and they can and must be a part of any new streamlined approach."
At issue is a rush to update FISA before lawmakers leave Washington at the week's end for a month-long break. Summer generally is considered a vulnerable time for attacks, as more people travel and terrorists can move around undetected more easily.
But the urgent push to revamp the surveillance law also comes amid sharp criticism of the FBI's misuse of terror investigation tools and widespread skepticism about Gonzales' credibility. Even as the White House urged lawmakers to update the surveillance law, it signaled it would bar two of its political aides from testifying before Congress about the Justice Department's controversial firings last year of federal prosecutors.
Thursday is the deadline for Karl Rove, Bush's top political adviser, to provide testimony and documents related to the firings, under a subpoena from the Senate Judiciary Committee. Also subpoenaed was White House political aide J. Scott Jennings. The Justice Department included both men on e-mails about the firings and the administration's response to the congressional investigation.
White House Counsel Fred Fielding has consistently said that top presidential aides — present and past — are immune from subpoenas and has declared some documents that are being sought off-limits under executive privilege.
Still, leaders of the Democratic-led Congress say they agree with the White House over needing greater ability to intercept messages from foreign terrorists overseas.
The changes to FISA would fix what the White House says is a significant gap: the missing of foreign intelligence that could protect the country against terrorist attacks. The law generally applies to spying on foreign terror suspects in the United States. But changes in technology since 1978 have resulted in overseas communications being routed through U.S. carriers.
Currently, the FISA court must approve a warrant for investigators to intercept messages that are believed — but not proven — to be between foreign suspects who are overseas. The Bush administration wants to change that by giving the attorney general authority to approve such intercepts without waiting for the court to issue a warrant. Rockefeller's proposal would require the court to review the process that the attorney general uses to determine the suspects are, indeed, overseas.
The White House responded with measured optimism.
"I think they understand and appreciate the importance," Bush spokesman Tony Snow said of Democratic leaders. "We will see."
The Senate's Republican leader, Mitch McConnell, said he saw bipartisan willingness to finish the legislation before Congress goes into recess.
The change would only be temporary, however, as lawmakers continue to work on a broader update to FISA.
Democrats said they would not let their disdain for Gonzales factor into decisions about the surveillance law that he, as attorney general, would oversee.
Still, Senate Judiciary Chairman Patrick Leahy said, "It is not wise to expand the authority of this attorney general — or any attorney general — in this regard."
Similarly, Senate Majority LeaderHarry Reid said questions over the proposal concern "what the involvement of the attorney general will be."
Reid said, "There is a problem with the personality" of the attorney general — Gonzales — who would be overseeing the revamped law. But "we're not going to let that get in the way of something that is appropriate."