On Fox News' Special Report with Brit Hume, Roll Call executive editor Morton M. Kondracke made a false claim to support his characterization -- as "too restrictive" -- of Sen. Mike DeWine's (R-OH) proposed legislation that would establish a "statutory framework" for the Bush administration's warrantless domestic spying program. Despite Kondracke's "too restrictive" claim, DeWine's proposal would strip the Foreign Intelligence Surveillance Act court of the authority to issue or deny warrants while requiring only that the administration notify Congress of the surveillance.
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Discussing the Bush administration's warrantless domestic spying program on the April 27 edition of Fox News' Special Report with Brit Hume, Roll Call executive editor Morton M. Kondracke made a false claim to support his characterization -- as "too restrictive" -- of Sen. Mike DeWine's (R-OH) bill proposing a "statutory framework" for the program. Kondracke claimed that congressional oversight subcommittees provided for in the DeWine bill would have to "reauthorize" and "approve every single tap" after a proposed 45 days of legal warrantless surveillance, adding, "That's ridiculous." The bill would do no such thing.
Currently, the government can conduct surveillance for up to 72 hours before obtaining a warrant from the Foreign Intelligence Surveillence Act (FISA) court. DeWine's proposal, however, would give the Justice Department the option of bypassing the FISA court entirely in favor of simply informing newly established intelligence subcommittees of the surveillance within 45 days. As Media Matters for America previously noted (here and here), DeWine's bill would require only that when the government opts not to seek a warrant from the court, it would have to explain to Congress why individual cases call for extending the wiretap beyond the initial 45 days. In other words, a bill that Kondracke labeled as "too restrictive" would, in fact, strip the FISA court of the authority to issue or deny warrants while requiring only that the administration notify Congress of the surveillance.
On March 16, DeWine, along with Sens. Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the "Terrorist Surveillance Act of 2006." The bill requires the attorney general to "certify ... under oath" to the House and Senate intelligence subcommittees why he has decided to circumvent court approval in these cases.
The Foreign Intelligence Surveillance Act of 1978 requires that the government seek a court warrant in order to conduct domestic surveillance for foreign intelligence purposes. DeWine's bill allows surveillance of U.S. residents without court approval for a period of 45 days. Under his proposal, if the administration seeks to conduct this surveillance for a period longer than 45 days, it has two options -- either seek a warrant or swear an oath to the subcommittees:
Every 45 days, the Attorney General must also review the surveillance of any individual targets under the program. -- If, at any time, the Attorney General determines that he has sufficient evidence to obtain a FISA warrant, he must seek a FISA warrant to continue surveillance on that target. -- If the Attorney General determines that he does not have sufficient evidence to obtain a FISA warrant, but nonetheless wants to continue surveillance, then he must certify in writing and under oath to the Terrorist Surveillance Subcommittees the following four things: 1) that all previous surveillance complied with this Act; 2) that there is insufficient evidence to obtain a warrant under FISA; 3) that the President has determined that continued surveillance of the target without a court order is necessary to protect the United States, its citizens, or its interests; and 4) that continued surveillance is being undertaken in a good faith belief that it will result in the acquisition of foreign intelligence information.
Nowhere in the bill are the subcommittees granted the authority to take adverse action if they disapprove of the administration's rationale in any given case. Indeed, when asked by a reporter at a March 7 press conference "what leverage" Congress would have over administration decisions to continue warrantless surveillance after 45 days, DeWine responded, "[I]t's the same leverage we have in any other type of oversight." He noted that Congress would have the "power of the purse" and the power to "change legislation ... de-authorizing the program, altering the program." DeWine's response amounted to an acknowledgement that Congress would have no ability to stop a particular act of surveillance without legislation (which the president could veto).
From the April 27 edition of Fox News' Special Report with Brit Hume:
HUME: The Senate Judiciary chairman, Arlen Specter of Pennsylvania, said today he may propose -- may propose -- legislation to cut off funding for the National Security Agency's secret electronic eavesdropping program unless he gets better answers about it from the White House. Specter says several other senators are willing to co-sponsor such a bill, and he has told President Bush about his intention, even though he himself might not vote for it.
SPECTER (video clip): It is possible that the only way the Congress can assert its constitutional prerogatives may be through the exercise of the power of the purse, which is a drastic remedy, one which I am not prepared to support at the moment, but one which may have to be considered if there is no other way for Congress to assert its constitutional prerogatives.
KONDRACKE: Well, I think that actually, the -- Senator DeWine has the beginnings -- or the right idea, that is --
HUME: He's a Republican from Ohio.
KONDRACKE: -- from Ohio -- to authorize the program in general terms without spelling out exactly what it is, and then expand the oversight of the Senate Intelligence Committee, the congressional intelligence committees over how it's managed. Now, I think that the terms that DeWine wants to impose are much too restrictive. I mean, it's 45 days. You've got to reauthorize it. You've got to approve every single tap. That's ridiculous. I mean -- but they ought to be able to oversee in general what the program is, and certain people ought to know about it.