In a March 17 article, Washington Post staff writer Charles Babington reported that a recent Republican bill would require the Bush administration “to convince” two congressional subcommittees that individual cases of extended warrantless domestic surveillance are necessary, implying that the surveillance would not continue unless the committees were convinced. Babington's suggestion that the administration must, in each case, obtain permission from these panels is false. To the contrary, under the bill, the subcommittees do not have the authority to approve or reject the continued surveillance.

On March 16, Sen. Mike DeWine (R-OH), along with Sens. Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the so-called "Terrorist Surveillance Act of 2006." In his article, Babington reported that the bill would allow President Bush's warrantless domestic eavesdropping to continue, but it would require that the administration “justif[y]” individual instances of extended surveillance to newly-formed, seven-member House and Senate subcommittees and “convince” these members of Congress that such operations are necessary:

The Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers, under legislation introduced yesterday by key Republican senators.

[...]

The bill would allow the NSA to eavesdrop, without a warrant, for up to 45 days per case, at which point the Justice Department would have three options. It could drop the surveillance, seek a warrant from FISA's court, or convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance “is necessary to protect the United States,” according to a summary the four sponsors provided yesterday.

In fact, the amendment does not require the Justice Department “to convince” the newly-formed “terrorist surveillance subcommittees” that the warrantless eavesdropping is necessary. Rather, it requires the Attorney General to “certify ... under oath” to the House and Senate panels why he has decided to circumvent court approval in these cases.

The Foreign Intelligence Surveillance Act of 1978 (FISA) 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.” In other words, DeWine acknowledged that Congress' recourse if it opposes an individual act of surveillance is legislation, and not, as Babington suggested, simply denying the administration permission to conduct that surveillance.