Senate Judiciary Committee Chairman Arlen Specter on Tuesday said the White House has "pretty much abandoned" the "preposterous argument" that the National Security Agency's warrantless-surveillance program was authorized by Congress when it passed the authorization for the use of military force in the war on terrorism.
But Specter said the White House "has an argument" that the program is legal, based on the president's inherent authority under Article Two of the Constitution — although Specter said he does not know enough about the program to make his own judgment.
"Their position is that the president has the inherent authority, and that's that," Specter said of the White House.
Specter made the comments after a Judiciary Committee hearing that featured testimony on his bill to create a judicial oversight mechanism for the NSA program. Under Specter's proposal, the Foreign Intelligence Surveillance Court would review whether the surveillance is constitutional.
"The FISA Court has an unblemished record of integrity and the ability to maintain a secret," Specter said.
Specter's proposal is an alternative to another bill, sponsored by fellow Judiciary Committee Republican Sen. Mike DeWine, which would place oversight of the program in a subcommittee of the Senate Intelligence Committee.
At the hearing, Specter, along with a number of Democratic senators, complained that the White House has not shared enough information about the program to give senators any basis for deciding whether the NSA program is constitutional or not. Answering that question, Specter said, "would require knowing what the program is."
Utah Republican Sen. Orrin Hatch, who is also a member of the Intelligence Committee, said he had been given details about the program and was satisfied — but not absolutely certain — that it is constitutional.
"I am familiar with the program," Hatch said, "and I have to say that I agree with (the) proposition that the Congress cannot take away the president's authority under Article Two of the Constitution."
"You have been briefed," Specter said to Hatch. "You say you believe it is constitutional ... but you are not a judge."
"That's true," Hatch answered. "And I may very well be wrong."