posted July 14, 2006 01:12 PM            

By Charles Babington and Peter Baker
Washington Post Staff Writers
Friday, July 14, 2006; A01

Switching course on one of his most controversial anti-terrorism policies, President Bush agreed yesterday to submit the administration's warrantless surveillance program to a court for constitutional review.

A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret.

Even so, the accord is a reversal of Bush's position that he would not submit his program to court review. The administration has contended that the executive branch already has the wartime authority it needs to order the National Security Agency to monitor e-mails and telephone calls between the United States and foreign countries when at least one party is suspected of terrorist ties.

Specter has disputed that assertion, and many Democrats and civil liberties groups responded with outrage after the surveillance program was disclosed in news accounts last winter.

Bush agreed voluntarily to submit his program to the court named for the 1978 Foreign Intelligence Surveillance Act, or FISA, contingent on Congress passing legislation drafted by Specter and administration lawyers.

The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court's approval and would allow it to appeal adverse court rulings. It would also give the NSA in emergency situations a week rather than the current 72 hours to eavesdrop on a domestic target without requesting a warrant, and it would allow the government to send to the FISA court all lawsuits challenging the program's legality. Some suits, filed by groups such as the American Civil Liberties Union, are already pending in various federal courts.

Consolidating lawsuits under the FISA system, Specter said, would prevent federal courts "all over the country" from issuing contradictory rulings on the NSA program.

Yesterday's agreement is the latest in a series of concessions Bush has made in recent days in his hard-line anti-terrorism tactics. On Tuesday, the administration agreed to apply key provisions of the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's rejection of its policies involving the treatment of detainees. That move unleashed a congressional debate, which continued yesterday, on how best to provide legal protections to detainees at Guantanamo Bay and other U.S. prisons without compromising national security.

Specter told reporters that Bush agreed to the plan's basic outlines before the Supreme Court's decision on detainees was announced.

Although the deal represented a clear retreat by Bush, White House aides traveling with him in Germany put an upbeat face on the move. The president approved it in an Oval Office meeting with Specter on Tuesday.

"The bill recognizes the president's constitutional authority and modernizes FISA to meet the threats we face from an enemy that kills with abandon and hides as they plot attacks," said spokeswoman Dana M. Perino.

But Specter, briefing reporters at the Capitol, said his bill would recognize the president's constitutional powers only in general terms and would make it clear that the administration must defer to judicial restraints. "The proposed legislation acknowledges, as we must, the president's inherent Article II authority," he said. "But when the court makes a decision, the court will make a decision in the traditional context that the president does not have a blank check.

"Unless the court finds it's constitutional," he said of the warrantless wiretap program, "it cannot function."

Specter said it is unclear whether a FISA court decision will be made public.

Several Democrats denounced the proposed legislation. "The Specter bill is an end run around the Foreign Intelligence Surveillance Act and provides the president a blank check to conduct warrantless surveillance of Americans," said Rep. Jane Harman (Calif.), ranking Democrat on the House intelligence committee.

The FISA court is composed of seven federal district judges, who are appointed by the chief justice. Congress established it to authorize secret surveillance of espionage and terrorism suspects within the United States. The 1978 law required the Justice Department to show probable cause for targeting people.

But after the Sept. 11, 2001, attacks, Bush said warrantless wiretaps were justified in the name of national security. For months, Specter has pushed to have the FISA court review the NSA program's constitutionality.

Some civil libertarians think Specter's approach invites FISA to give broad approval to surveillance efforts on an unknown number of Americans, whereas the original law presumed that there would be a case-by-case review of individual situations.

Specter said his intent is to get a "determination on constitutionality of the overall program." He added: "It is suggested, but I do not know, that it is impractical to have individual warrants."

He said the bill would direct the attorney general to tell the FISA court what steps NSA takes to minimize the surveillance program's scope and possible privacy invasions, and to explain "how the program is reasonably designed to ensure that the communications intercepted involve a terrorist, agent of a terrorist, or someone reasonably believed to have communicated or associated with a terrorist."

At the administration's insistence, the bill would impose higher penalties for "officials who knowingly misuse foreign intelligence information."

Consolidating lawsuits under the FISA system, he said, would prevent federal courts "all over the country" from issuing contradictory rulings on the NSA program.

Specter predicted that Congress will pass his bill, even though its two chambers have clashed over immigration, the USA Patriot Act and other matters. If Congress amends the bill in any way that Bush disapproves, he will not be obligated to submit the wiretap program to the FISA court for review, Specter said.

The Bush-Specter deal was reached after intense negotiations over the past few weeks following a public dustup over the issue between the senator and Vice President Cheney. Bush dispatched aides to Capitol Hill to calm tempers and find a compromise.

The White House balked at an early draft that would have mandated the president submit the NSA program to the FISA court for review. Specter agreed to make it voluntary as long as Bush promised to submit the program if Congress passes the bill. Aides privately acknowledged it was a big concession by a president who until now has resisted judicial interference in how he wages war against terrorists.

The White House conceded in part because it believes the NSA program will survive constitutional muster and the Specter bill will make it easier to argue that the program complies with congressional statutes as well. "We've always said it's constitutional," said one administration official who was not authorized to speak on the record.

The language acknowledging the president's constitutional authority to conduct intelligence operations also was important to the White House. "We see it as historic because here's a statute recognizing an authority the president says he has," the administration official said.

Still, that language alone might mean little because it did not define the scope of the authority or explicitly suggest that a president did not need to seek court approval for warrants. But at the same time, Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs.

The combination of the statement acknowledging presidential authority and the deletion of the exclusivity clause left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval.

Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose "any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate."

Rep. Edward J. Markey (D-Mass.) said: "While I am pleased that President Bush finally has conceded that the domestic surveillance program should be subjected to FISA court scrutiny, this should not exempt the secret program from thorough congressional scrutiny."

Baker reported from Stralsund, Germany.