Judges support review of NSA spying program


WASHINGTON -- Five judges who served on the secret court that approves domestic spying warrants endorsed a proposal yesterday that would require judicial review of the National Security Agency's warrantless surveillance program.

Judge James Robertson, who served on the secret court until he quit, apparently in protest of the program, wrote Congress to support a proposal to have the court oversee the program. In a highly unusual appearance on Capitol Hill, four other federal judges, who no longer serve on the secret court, also backed the proposal.

The endorsements were the most recent development in the debate over the legality of the NSA program and whether Congress should alter and monitor it more carefully - ideas the White House has largely resisted.

The proposal strikes "a reasonable approach to meeting both the need for national security and for protecting Americans' civil liberties," said William Stafford, a federal judge in Florida who sat on the secret court until 2003.

The bill, sponsored by Sen. Arlen Specter, a Pennsylvania Republican, would have the secret court review the program to decide whether the president has the authority to continue it.

Specter's bill would also require future surveillance in the United States to be approved by the secret court, but the government could identify one suspected terrorist to gain permission to spy on a whole network.

Senate Democrats, however, expressed concern that the president would not comply with the measure if it became law.

The Foreign Intelligence Surveillance Act of 1978 requires the government to obtain a warrant before spying on people in the United States and established a secret court to approve such warrants.

The NSA program authorizes warrantless surveillance of people in the United States who are suspected of having connections to al-Qaida. The White House contends that the president has the authority to pursue the program under a congressional resolution passed in the wake of the Sept. 11 attacks and under constitutional wartime powers.

The four judges said Congress has the power to authorize the president to spy on Americans without a warrant, but were wary of the president's authority to do it on his own.

Robertson, a federal judge in the District of Columbia, declared his support for Specter's bill last week.

"Seeking judicial approval for government activities that implicated Constitutional protections is, of course, the American way," he wrote in a letter to the senator. But he said sensitive material should be handled by a small group of judges, such as the 11-member secret court.

Robertson suggested adding a requirement that the secret court review the NSA surveillance program every 45 days.

John Keenan, a federal judge in New York who served on the secret court until 2001, said Specter should expand the provision in current law allowing warrantless surveillance in an emergency for three days to seven days.

The court operates in absolute secrecy. Yesterday's public testimony was "unprecedented," said Steven Aftergood, who runs the government secrecy project at the Federation of American Scientists.

Specter cast doubt yesterday on the fate of a hearing Friday to examine a proposal by Sen. Russ Feingold, a Wisconsin Democrat, to censure the president, whom he accuses of violating the 1978 law.

"I want to see what witnesses he wants to call," Specter said.


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