Republicans: FISA authority in Constitution

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Authority to conduct warrantless electronic surveillance comes from the Constitution and is vital to stopping foreign terrorist attacks and spies, says a Republican staff assessment of the revised Foreign Intelligence Surveillance Act.

"There is nothing new or aggressive about relying on Article II authority in the context of foreign intelligence surveillance," stated the assessment produced by the office of Sen. Christopher S. Bond, Missouri Republican and vice chairman of the Senate Select Committee on Intelligence.

The 13-page assessment counters Democrats and other critics of the Terrorist Surveillance Program (TSP) who argued during a Senate filibuster of the legislation last month that electronic spying is illegal, began before the September 11 attacks, and that the program spied improperly on domestic telephone and electronic communications.

"There is no evidence to substantiate claims about warrantless spying on Americans prior to the 9/11 terrorist attacks," the report stated. "Nor is there any evidence to substantiate the claim that the TSP covered domestic calls between friends, neighbors and loved ones. As the president has stated, the TSP involved the collection of international calls involving members of al Qaeda."

Sen. Edward M. Kennedy, Massachusetts Democrat, said during the floor debate last month that the surveillance program spied on innocent Americans. Sen. Christopher J. Dodd, Connecticut Democrat, also said then that any surveillance without a court order undermines "our democratic society."

But the report stated that "warrantless surveillance for foreign intelligence collection has been an integral part of our nation's foreign intelligence gathering. During World War II, our warrantless surveillance of the German and Japanese militaries and the breaking of their codes preserved our democracy."

The Senate is expected to take up legislation as early as tomorrow on extending legislation governing electronic surveillance aimed at stopping foreign terrorists and spies. A law passed in August, the Protect America Act, revised the 1978 Foreign Intelligence Surveillance Act procedures to better deal with modern communications and technology. That law will expire at the end of this month.

"Congress will have only eight days to pass a fix before our foreign intelligence surveillance law expires," Mr. Bond, ranking member of the Senate intelligence committee, told The Washington Times. "To continue to stall legislation needed to help our intelligence community prevent attacks and protect American lives is irresponsible."

The staff report said critics of the surveillance program claim it should have been carried out under FISA rules. However, it stated that a decision by a surveillance court judge last year "proved that the TSP could not be done under FISA as it existed at that time."

"This decision resulted in significant intelligence gaps and led to the need for, and passage of, the Protect America Act," the report said.

The report said negative comments about the Justice Department's legal basis for surveillance program by some senators was used to argue against legislation giving private telecommunications companies that support intelligence surveillance needed legal protection from lawsuits.

"I have reviewed the opinions and found them soundly reasoned," Mr. Bond said in the report, noting that because of the highly sensitive sources and methods, the Justice legal opinions are classified and their contents cannot be discussed publicly.

Democratic critics also have said the FISA law is the only permitted basis for conducting electronic surveillance, but the report stated that the Constitution "trumps any statute."

"It is false to suggest that the president has no inherent constitutional authority to conduct warrantless surveillance for foreign intelligence purposes because Congress tried to limit it in FISA," the report stated.