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Spy program spurs debate over the balance of powers

Lawmakers say role of Congress can't be sidelined

WASHINGTON -- The revelations of President Bush's 4-year-old order approving domestic surveillance without court warrants has spurred a fiery debate over the balance of power between the White House, Congress, and the judiciary.

On Capitol Hill, senators from both parties said the role of Congress cannot be sidelined -- even in wartime.

''I think the vice president ought to reread the Constitution," said Senator Edward Kennedy, Democrat of Massachusetts.

Domestic spying authorized by the White House ''doesn't uphold our Constitution," and President Bush's defense of the practice is ''lame," Senator John Kerry said yesterday.

Kerry also said the alleged White House leak of a CIA agent's identity was more serious than the media's disclosure of the spying program.

''The leak in the White House was an effort to destroy somebody and his family and attack them for telling the truth," the senator said. ''The leak that took place in this case is a leak that -- I'm not excusing it -- is to tell the truth about something that violates the rights of Americans and doesn't uphold our Constitution."

The Republican National Committee batted away the criticism.

''While President Bush remains focused on defending Americans against those intent on doing us harm, John Kerry remains focused on attacking President Bush," committee spokeswoman Tracey Schmitt said.

Democrats said they were deeply troubled by the surveillance program, and contended the president had no authority to approve it.

''He has no legal basis for spying on Americans without court approval," said Senator Richard Durbin of Illinois, the number two Democrat in the Senate.

Republicans said Congress must investigate whether Bush was within the law to allow the super-secret National Security Agency to eavesdrop -- without warrants -- on international calls and e-mails of Americans and others inside the United States with suspected ties to Al Qaeda.

''I believe the Congress -- as a coequal branch of government -- must immediately and expeditiously review the use of this practice," said Senator Olympia Snowe, Republican of Maine.

Snowe joined three other members of the Senate Intelligence Committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.

The administration defends the program, saying Congress gave Bush the authority to use ''signals intelligence" -- wiretaps, for example -- to eavesdrop on international calls between US citizens and foreigners when one of them is a suspected Al Qaeda member or supporter.

Attorney General Alberto Gonzales cited the Authorization to Use Military Force law, which Congress passed and Bush signed a week after the Sept. 11 terrorist attacks.

The administration believes that law lets the government avoid provisions of the 1978 Foreign Intelligence Surveillance Act.

The surveillance act was passed after public outcry over abuses during the Nixon administration, which spied on antiwar and civil rights protesters.

Under the act, an 11-member court oversees government applications for secret surveillance or searches of foreigners and US citizens suspected of terrorism or espionage.

''I'm not a lawyer, but in my reading, it is pretty conclusive, very conclusive, that FISA prohibits all warrantless electronic surveillance of Americans in America," said Senator Dianne Feinstein, Democrat of California.

Senator Joe Lieberman, Democrat of Connecticut, asked: ''Why didn't the administration feel that it could go to the FISA court to get the warrant?"

Representative John Conyers of Michigan, the top Democrat on the House Judiciary Committee, introduced a bill calling on Congress to determine whether there are grounds for impeachment -- an event that is extremely unlikely in a Republican-controlled Congress.

Democrats called attention to a Bush statement in April 2004 that they said conflicts with what the president is saying now.

''Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order," Bush said during a speech on the Patriot Act in Buffalo, N.Y. ''Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

The White House said the president's comments -- two years after approving the domestic surveillance program -- applied to the kind of roving wiretaps the Patriot Act allows for law enforcement, not eavesdropping for foreign intelligence.

Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Democrats said they were told of the program, but had concerns.

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