Congress unlikely to challenge spying
Few details of domestic program may ever be known, say experts

(Gold9472: "Are we there yet Papa Smurf?", "Not long now my little smurflings. Nazi America is right around the corner.")

By Gwyneth K. Shaw and Siobhan Gorman
Originally published June 18, 2006

WASHINGTON // Despite some congressional criticism of the National Security Agency's warrantless surveillance program, lawmakers appear unlikely to challenge it this year without new pressure to do so, national security analysts and some members of Congress say.

That leaves legal challenges, which have already begun moving through the courts, as the most likely venue for public scrutiny of the program, they say.

As a result, experts say, little may be known for months or years, if ever, about whether the program is living up to its billing as a crucial terrorist-hunting tool. In the process, Congress could end up implicitly accepting President Bush's assertion that his power as commander in chief and a broad congressional authorization allow him to sidestep other legislative mandates.

With midterm elections approaching and the swift confirmation of Gen. Michael V. Hayden, the NSA program's architect, as CIA director, members of Congress have a dwindling number of tools to seek information about the program and a declining will do to so, experts say.

"The bottom line is: Unless we learn some facts that really are of concern to the American public, those who would like to see some real oversight of this are not likely to get a lot of traction," said Suzanne Spaulding, former counsel for the CIA; she has worked for both parties on Capitol Hill.

The administration has put up strong -- and, so far, successful -- resistance both to in-depth hearings on the program and legislative changes that would force the executive branch to get warrants for any surveillance from the secret court created for that purpose.

For example, Sen. Arlen Specter, the Pennsylvania Republican who heads the Senate Judiciary Committee, had to postpone efforts to push legislation through his panel after Vice President Dick Cheney lobbied other Republicans on the panel to press Specter to negotiate with the White House.

The House and Senate intelligence committees -- the two panels with the jurisdiction and the security clearances to focus on the program -- have conducted no public hearings on the NSA's activities. The Republican chairmen of both committees said they planned to look at the program, but because many members have only recently been briefed on it, their focus is mostly on digesting the details before considering action.

The two committees were once known for being nonpartisan and knowledgeable about the technology and tradecraft of intelligence, said Marvin Ott, a former CIA analyst who was a top aide to the Senate panel from 1985 to 1991.

That committee has gradually turned partisan, and the level of scrutiny has declined, he said. Unlike the investigations in the mid-1970s, when Congress uncovered widespread abuses by intelligence agencies, the appetite for rigorous probes appears small.

"Now, instead of all the energy being directed at oversight, it's internal political warfare within the committee that absorbs the energy," Ott said. "There won't be any oversight [of the NSA program] because there's no vehicle to do it."

The program's critics say the Senate squandered its best chance for information when it neglected to press for program details during confirmation hearings for Hayden, who implemented it while at the NSA.

"Congress is playing see-no-evil, hear-no-evil," said Matthew Aid, who served on the House Armed Services Committee staff in the 1980s and is now writing a history of the NSA.

Both parties are to blame, he said. The Republican committee chairmen "are more concerned about politics than they are about protecting the constitutional rights of the American people," he said. "The Democrats are just as guilty. They don't want to appear soft on national security."

Specter, who has vowed to press for legislation that would require a court to weigh in on the constitutionality of the program, said in an interview last week that it could get done this year.

But with time growing short before the November midterm elections, other supporters of legislative action are less optimistic.

Rep. Jeff Flake, an Arizona Republican, said he would be surprised if Congress took action this year, in part because the administration has argued forcefully that the program is legal.

"You would have to really line up your ducks here to get it past a veto," said Flake, a member of the House Judiciary Committee and the co-sponsor of legislation that would declare the 1978 Foreign Intelligence Surveillance Act the ultimate law governing any domestic surveillance.

He said the only thing that might prod Congress to act would be if more details about the program broke in the news.

"You don't have enough people that are concerned about it and will put their neck out and risk being perceived as weak on security," Flake said.

Democratic Sen. Ron Wyden of Oregon, a member of the intelligence committee, said that if judges issue rulings before lawmakers act, "it makes Congress look irrelevant."

"I think Congress will really be seen as surrendering its responsibilities if intelligence policy is essentially handed over to the courts to decide, because Congress doesn't have the backbone to get into it," he said.

The first hearing on a suit against the government was held Monday, but it was only the beginning of what's likely to be a long legal journey that could end at the Supreme Court.

So far, two lawsuits have been filed against the government charging that the program is illegal because it violates the law that requires a secret warrant for eavesdropping on Americans -- one filed in Detroit by the American Civil Liberties Union and another filed in New York by the Center for Constitutional Rights.

Lawsuits against phone companies reported to be working with intelligence agencies are also growing, so far numbering more than 20, according to a recent federal government court filing.

The first suit against a phone company, AT&T, was filed in January, and it has already led to the publication of technical documents allegedly detailing the arrangement between AT&T and the NSA.

The ACLU has also taken the issue to 22 state public utility commissions, arguing that the program violates state laws.

The Justice Department is fighting back aggressively. It has attempted to quash three of these cases by arguing that they would reveal "state secrets," and it is expected to make similar arguments in other cases, said Shayana Kadidal, a lawyer for the Center for Constitutional Rights. Historically, the courts have deferred to government arguments that revealing information would harm national security.

To the degree that courts can shed light on the program, it is likely to be on narrow issues and not the full scope of the program, said Kate Martin, director of the Center for National Security Studies, which promotes civil liberties. "It is a different kind of oversight," she said.

Congressional oversight of intelligence began in earnest with the Church-Pike hearings in 1976, which investigated the Nixon-era abuses of intelligence agencies.

In addition to revealing efforts at the NSA, CIA and FBI to spy on Americans, those hearings led to the establishment of House and Senate intelligence oversight panels. Ultimately, they also produced the 1978 surveillance law, which set up a secret court to approve warrants for surveillance or physical searches of people in the United States.

President Bush and other administration officials maintain that they were empowered to spy without such a warrant by the inherent powers of the president as commander in chief, as well as the broadly worded resolution approving the use of force against the perpetrators of the Sept. 11 attacks that Congress approved shortly after Sept. 11.

Rep. Peter Hoekstra, a Michigan Republican and the chairman of the House Intelligence committee, dismissed criticism that Congress was not scrutinizing the NSA program sufficiently.

"It's always an interesting criticism from people who don't know what we've done," he said.

Hoekstra said he was satisfied with the level of oversight his committee has provided. He said that once the whole committee was updated on the program, oversight "increased significantly." Hoekstra initially resisted that expansion.

However, California Rep. Jane Harman, the top Democrat on the panel, said she was not satisfied with the congressional oversight.

"We are not at full oversight capability yet," she said.

Hoekstra said he has planned hearings to examine how to update wiretapping laws to work with new technology, although he did not anticipate passing legislation to change the program.

Sen. Pat Roberts of Kansas, the Republican chairman of the Senate panel, said that because many committee members weren't briefed on the program until last month, he wanted to proceed on "a workmanlike basis" to get everyone on the same page.

"The test always has to be, for a Republican, 'Would I be comfortable with a Democrat in the White House using this authority?'" Flake said. "I think there would be a much bigger outcry if this were a Democratic president doing this."