Views are mixed on domestic spying

WASHINGTON -- Several legal specialists told a Senate committee yesterday that President Bush's domestic spying program is ''blatantly illegal" and that it could set a troubling precedent that allows wartime presidents to break laws freely in the name of national security.

But other law professors and former officials who testified during the second Senate Judiciary Committee hearing on the surveillance program defended the president's assertion that his wartime powers allow him to bypass the courts and to spy on Americans' international calls and e-mails without warrants.

Most of the witnesses were skeptical of the president's contention that his wartime powers allow him to bypass the courts. Bush's legal theory, they said, is wrong and dangerous.

''This is a defining moment in the constitutional history of the United States," said Bruce Fein, a lawyer in the Reagan administration. ''The theory used by the administration . . . could equally justify mail openings, burglary, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked, it will lie around like a loaded weapon ready to be used by any incumbent who claims an urgent need."

Other specialists disagreed.

In his testimony, Douglas Kmiec, a Pepperdine University law professor who was a lawyer in the Reagan administration, endorsed the White House's assertion that Bush's power as commander in chief allowed him to set aside the warrant law and eavesdrop on Americans.

And former CIA director R. James Woolsey said that the terrorist attacks of Sept. 11, 2001 -- the worst such acts on US soil -- had transformed America into a battlefield and that Congress cannot restrict a president's constitutional power to conduct war as he sees fit.

''Unlike the Cold War, our intelligence requirements are not just overseas," Woolsey said. ''We live on the battlefield and we need to be able to map electronically that battlefield . . . The country has been invaded, though of course not occupied, and defending against an invasion is at the heart of the president's powers."

Still, Robert Levy, a senior fellow in constitutional studies with the libertarian CATO Institute, sought to preserve a distinction between ''real" battlefields, such as the Afghanistan war zone, and the threat of terrorism on the homefront.

Yesterday's hearing was the second Judiciary Committee inquiry into the National Security Agency spying program since its existence was first disclosed by The New York Times nearly three months ago. Called to testify in January, the attorney general, Alberto R. Gonzales, defended the program's legality, supplementing his testimony with six pages of written answers that were submitted yesterday.

The Senate Judiciary Committee chairman, Arlen Specter, Republican of Pennsylvania, said yesterday that the spying issue will remain a priority, but he made no announcements about future hearings.

Specter has also drafted a bill that could resolve the legal dispute over the program. The bill would direct a special national security court to hear the classified details of the spying program; if the court decided the warrantless eavesdropping program does not violate the Constitution, it could continue despite the warrant law.

In yesterday's hearing, however, the witnesses were nearly unanimous in expressing caution about the bill. Several specialists said Specter's proposal is a good first step, but all agreed the draft, as written, is hamstrung by technical legal problems and significant policy concerns.

Kmiec, for example, expressed concern that the proposed law could interfere with the primary goal of any surveillance: making sure the president is able to get wartime intelligence he needs.