NSA spying comes under legal, political attack

Republican senator threatens to cut funding to Bush's surveillance program. Judge sets hearing date in related suit.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
WASHINGTON--President Bush's no-longer-secret surveillance program employing the National Security Agency came under a two-pronged attack this week on both political and legal fronts.

First, a key Republican senator said Thursday that he was contemplating pulling the plug on the NSA spying program by cutting funding--unless, that is, the Bush administration comes clean on how the program works and whether it complies with privacy rights guaranteed by the U.S. Constitution.

"When you're withholding funds, here you're talking about real authority," Sen. Arlen Specter of Pennsylvania, the chairman of the Senate Judiciary Committee, told reporters at a press conference at the U.S. Capitol. Specter said he met with Bush on Wednesday but was unable to find common ground.

Second, on Wednesday, U.S. District Judge Vaughn Walker in the northern district of California set two hearing dates over the next two months for a lawsuit that seeks to prove that AT&T illegally cooperated with the NSA and violated federal wiretapping laws in doing so. One date is May 17 and the other is June 21.

At issue in the AT&T lawsuit, filed by the Electronic Frontier Foundation, is not only the company's actions (it has repeatedly declined to answer questions from CNET News.com). It's also over whether EFF will be able to unseal allegedly confidential documents it obtained, including a sworn statement by a retired AT&T telecommunications technician describing a "dragnet surveillance" scheme.

AT&T has asked the judge not only to keep the documents sealed and away from the public's eyes, but also to force the digital-rights group to return them. "We're waiting to see what happens," Lee Tien, an EFF senior staff attorney, said Thursday.

In Washington, the political situation is becoming even more complicated than the legal one. The Senate Judiciary Committee has convened four hearings this year related to the terrorist surveillance program that could be spying on an untold number of Americans' phone conversations and e-mails.

But the committee has still not obtained enough information to do its job, which is to judge the constitutionality of the program, and neither has the intelligence committee, which the administration is legally obligated to brief on such matters, Specter said.

"Is the president doing anything wrong?" Specter asked. "We don't know, because we don't know what the program is."

There's no doubt that the program is going on in violation of the Foreign Intelligence Surveillance Act, or FISA, a 1978 law that requires a secret court to approve investigative wiretapping before it occurs, Specter said. What remains murky, he added, is whether the president's constitutional powers as commander-in-chief would justify the program's existence without a court order.

"Here you have a lot of taps going on in America, in violation of a statute," Specter said. "They may be necessary, they may be vital, but there needs to be a determination of that...to ensure they're not a violation of privacy without probable cause."

Specter introduced a bill in March that would explicitly require the FISA court to sign off on all future and existing surveillance programs. That measure, along with two other bills regulating electronic surveillance, remains under debate in committee.

Specter emphasized that he doesn't want the issue to fade into the background, saying that he'd like to see "public concern and public indignation build up." He said it's possible he would also propose a separate bill to withhold the funds and plans to study how such a tactic has or has not been used in other times of controversy, such as during the Vietnam War.

The tactic may be largely symbolic, though, unless other Republicans join him or Democrats manage to retake the House of Representatives in the fall 2006 elections.