Congress Republicans split over secret listening by NSA

Bartlett and Specter among skeptics about program's legality


WASHINGTON -- Despite a strong defensive effort from the White House, Republicans in Congress remain divided over the secret eavesdropping authorized by President Bush.

Following the lead of the administration, Rep. Peter Hoekstra of Michigan, the chairman of the House Intelligence Committee, went on the offensive yesterday in support of the president's decision authorizing the National Security Agency to conduct domestic surveillance without court permission. Hoekstra said he was comfortable with the program and the legal basis for it.

"It's a reasonable thing to do," he said. "Some might call it a no-brainer."

Not all Republicans share that view. Maryland Rep. Roscoe G. Bartlett, an oustpoken defender of privacy rights who voted against a renewal of the USA Patriot Act because he said it was a threat to civil liberties, said the program's tactics were unsettling.

"Not enough is known about these cases to make a judgment about the program," said Bartlett, who represents much of the western part of the state. "However, I am generally uncomfortable using the broad interpretation of one law to avoid compliance with all other relevant laws."

Since the news broke last week that Bush personally authorized the surveillance, many Republican Party leaders have stood behind him, agreeing that the powers of the executive afford great latitude during a time of war. Sen. Pat Roberts of Kansas, the chairman of the Senate Intelligence Committee, has criticized Democrats, such as Sen. John D. Rockefeller IV of West Virginia, who were briefed on the program but have questioned it.

But for the vast majority of Congress outside that small loop, the question is whether to accept the administration's assertions of authority or not.

"You could argue it one way and you might argue it the other," said Sen. Orrin G. Hatch, a Utah Republican. "But the White House certainly has some case law on their side and the inherent powers of the president on their side, and those two, I think, would cause any reasonable person to side with the executive branch."

Other Republicans - most prominently Sen. Arlen Specter of Pennsylvania, the chairman of the Senate Judiciary Committee - have joined their Democratic colleagues in questioning the administration's legal rationale. Specter has said his committee would hold hearings about the NSA program in January, and two other Republican senators, Chuck Hagel of Nebraska and Olympia J. Snowe of Maine, signed a letter with three Democrats, calling for an investigation by the Senate's intelligence and judiciary panels.

Another Maryland Republican, Rep. Wayne T. Gilchrest, said Congress is divided among those who would support or oppose the administration regardless of the scenario, as well as staunch civil libertarians who would question any encroachment on privacy rights. Others look at the issue with an analytical eye, rather than through the lens of partisan loyalty.

"In this situation, I think it's appropriate, with an objective sense about you, to question this type of operation," said Gilchrest, who represents the Eastern Shore.

The Foreign Intelligence Surveillance Court, which monitors government surveillance under the law dealing with spying outside the U.S., represents "the type of constitutional constraints that are not only appropriate, but they're necessary," he said.

The story has continued to develop since The New York Times disclosed the existence of the program on Dec. 16. Yesterday, The Washington Post reported that U.S. District Judge James Robertson had resigned from the FISA court out of concern that the spying program had undermined the work of the court. And the Times reported that the NSA had intercepted a small number of communications conducted wholly inside the United States, in violation of the rules set by the White House that one end of a monitored conversation must take place outside the country.

Hoekstra said that could have happened, although he said he had no knowledge of it.

"Does that mean that a mistake or an inadvertent piece of data might have been gathered?" he said. "That's possible. But it was not the intent of the program and safeguards put in place to try to stop it."

Hoekstra, who has chaired the intelligence committee since August 2004, said he had been briefed about the program six times since then, including three times in the past week.

While Rockefeller, the top Democrat on the Senate Intelligence Committee, and House Democratic Leader Nancy Pelosi say they voiced strong concerns to the White House about the eavesdropping authority, Hoekstra said he emerged from some of the same briefings believing that congressional leaders were on the same page.

"The record is clear: Congressional leaders, at a minimum, tacitly supported the program," he said. "Many, I believe, thought it was absolutely essential and appropriate to keep America safe."

Rockefeller released a declassified letter this week that he sent to Cheney after a briefing on the program in July 2003, expressing "lingering concerns" and frustration that he could not consult his staff about the information. Pelosi, who said she lodged her complaints verbally as well as in writing, has asked that her own letter be declassified.

Hoekstra said Democrats who were privy to information about the program had opportunities to speak up, both in the briefings and afterward.

"If I felt a great deal of discomfort with this program, there is a lot more that I would have done than just write one letter over a period of four years," he said.

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