Deal on spy program in works

WASHINGTON -- Senate Judiciary Committee Chairman Arlen Specter, a leading Republican critic of President Bush's domestic spying program, has drafted a bill that would exempt the once-secret surveillance program from a 1978 statute that requires warrants.

The draft bill, which will be aired today at a Judiciary Committee hearing, would require Bush to submit the classified details of the spying program to a special national security court for review. The court would decide whether the program violates the constitutional prohibitions on unreasonable searches.

The Pennsylvania lawmaker has not yet released his bill to the public, but the Globe obtained a draft copy that has been circulating among legal specialists who are set to testify about the spying program at today's hearing.

Specter's proposal appears to offer a face-saving solution to both sides, some specialists said. It avoids declaring whether the program until now has been illegal, but reasserts congressional authority over domestic surveillance going forward.

''This is a good-faith effort on the part of Senator Specter to reach a reasonable compromise," said Pepperdine University law professor Douglas Kmiec, a former Reagan administration lawyer who will testify today. ''We could endlessly debate who is right under the existing law. . . . The wisdom of Specter's approach is to say 'OK, this is an interesting debate, but we've got a real problem to solve and here is my attempt at solving the problem.' "

But Specter's proposal drew fire from critics of the president's assertion that his wartime powers allow him to circumvent the 1978 law and spy on Americans without a warrant. The critics said Specter is proposing changing the law to accommodate Bush without making it clear that a president must obey the law.

Harold Koh, the dean of Yale Law School and another specialist who will testify today, said Specter's bill would ''make matters far worse by giving the Congress's blanket preauthorization to a large number of unreasonable searches and seizures," without offering a full review of a program that until now he contended has been ''blatantly illegal."

''To enact the draft legislation . . . would provide neither the congressional oversight nor the judicial review that this program needs to restore our confidence in our constitutional checks and balances," Koh said.

The debate over changing the wiretapping law comes as 18 Democrats in the House of Representatives sent Bush a letter yesterday demanding that he appoint a special counsel empowered to independently investigate whether the program is illegal.

Scott McClellan, the White House press secretary, dismissed the request in his daily briefing yesterday, saying there is ''no basis" for a special counsel, repeating the administration's assertion that the program is legal.

In a phone interview, White House spokeswoman Dana Perino declined to comment on the details of Specter's bill. But she said the administration is committed to working with Congress on legislation ''that will further codify the president's authority but not undermine the program's capabilities."

Specter's bill would require a special national security court to review the program. If the court finds that the program, as a whole, is gathering important information and does not violate the Fourth Amendment's prohibition on unreasonable searches, the court can approve its use for 45-day increments.

The bill would create a bypass around the 1978 wiretapping law -- especially the mandate that the government must show a judge evidence to justify its decision to eavesdrop on each person it monitors.

The bill does not spell out what kind of spying program might fit that criterion, but specialists said it fits the technology used by the National Security Agency, the secretive military division that runs the spy program.

The NSA, which normally works overseas, does not place single wiretaps on specific phones -- the kind of individualized surveillance the 1978 law envisioned. Rather, it taps into communications lines carrying millions of calls and e-mails at once.

Using a technique akin to keyword searching, the NSA's powerful computers then filter out a tiny fraction of the calls to show them to human analysts, declassified documents and investigations have shown.

The Supreme Court has never ruled whether mass automated monitoring of Americans' phone calls and e-mails by computers would violate the Fourth Amendment. Legal specialists differ on the issue. By proposing that the national security court take up the matter, specialists said, Specter is seeking to settle the debate.