WASHINGTON - While most senators recoiled last week from Sen. Russell Feingold's resolution to censure the president, many of them agreed with one of its basic premises: that the wiretapping of Americans without a warrant is against the law.

Doubts about the legality of the government's once-secret domestic surveillance program can be found among both liberal and conservative scholars and on both sides of the aisle in Congress.

In other words, unlike his proposal for censure, Feingold's claims about "illegal wiretapping" are well within the mainstream of congressional debate on the issue.

But critics of the censure resolution make two very different arguments about those claims.

One is an unqualified assertion of the program's legality, offered by the Bush administration and on the Senate floor last week by Majority Leader Bill Frist, R-Tenn.

The other doesn't go nearly that far. In dismissing the notion of censure, some senators argue not that the wiretapping is necessarily legal, but that the question is unanswerable for now, either because too little is known about the program or because the courts haven't put the big constitutional issues to rest.

Chief among them: whether a 1978 law against warrantless domestic wiretapping is trumped by the president's inherent constitutional powers as commander in chief.

Moments after Feingold, D-Wis., introduced his censure resolution, Illinois Democrat Dick Durbin posed a question on the Senate floor to Republican Arlen Specter, chairman of the Senate Judiciary Committee and a central figure in the wiretapping debate.

Did Specter agree with Frist that the wiretapping is legal?

"I neither agree nor disagree. I do not know," said Specter, who in that spirit introduced a bill Friday that would require the government to seek legal approval for its surveillance program from a special foreign intelligence court established in the late 1970s.

Specter, of Pennsylvania, said Friday that he's taking a "middle ground" between those who claim the program is legal and doesn't require a change in the law or judicial review, and those, like Feingold, who claim it's flatly illegal.

Of Frist's claim of legality, Specter said, "Senator Frist is not a judicial official."

Of Feingold's claim of illegality, Specter said there are too many unknowns about how the program works, and "I certainly think you ought not castigate the president as a criminal until you do know the answers to those questions."

Feingold, who sits on both the judiciary and intelligence committees, rejects that argument.

"I don't think there will ever be any additional information that is going to make this more legal," Feingold said at a news conference last week.

Then he proceeded to offer the legal case against the National Security Agency's surveillance program, which is intended to monitor calls between the United States and a foreign country that involve al-Qaida suspects.

Argument number one: that the program is in clear conflict with the 1978 Foreign Intelligence Surveillance Act, which makes it a crime to eavesdrop on Americans without a warrant from a court.

On this point, Feingold has plenty of company. Specter himself called the program a "flat violation" of the 1978 law on NBC's "Meet the Press" on Feb. 5.

Argument number two: that the Bush administration is wrong when it claims that the warrant requirement in the 1978 law was superseded when Congress passed a resolution in 2001 authorizing the president to use "all necessary and appropriate force" against those responsible for the Sept. 11 attacks. Attorney General Alberto Gonzales made that case when he testified before the Senate Judiciary Committee on Feb. 6.

"That's been laughed out of the halls of Congress," Feingold said last week, and not many lawmakers have endorsed the administration's view on this point.

Specter told Gonzales that his argument "defies logic and plain English." South Carolina Republican Lindsey Graham told the attorney general that his reasoning was "very dangerous." Graham said when he voted to authorize force against al-Qaida in 2001, "I never envisioned that I was giving to this president or any other president the ability to go around (the 1978 law) carte blanche."

But the debate over the legality of the National Security Agency's domestic wiretapping also turns on a third question that is more divisive among lawmakers and in the legal community: whether the 1978 law's requirement for a warrant is outweighed by a president's "inherent" constitutional powers as commander in chief.

How clear is the law?

This question was batted around by the legal experts who testified before Specter's committee late last month. They debated not only whether the surveillance program is legal or illegal, but also whether the law itself is gray or black-and-white in this area.

Yale Law School Dean Harold Koh told the Senate panel that the eavesdropping program is "as blatantly illegal a program as I've seen."

Koh, a liberal scholar who served under President Clinton, said the program lacked the basic standards required under the Fourth Amendment right against unreasonable searches and seizures.

Two conservative legal scholars also told the panel the program was illegal, though they disagreed over whether it was a close call.

"This case is very easy," said Bruce Fein, a former Reagan administration official, who cited a landmark 1952 Supreme Court ruling involving the government's seizure of a Youngstown, Ohio, steel mill. In that case, Justice Robert Jackson held that presidential authority is at its high point when it's used in concert with congressional authorization, but that it's at its "lowest ebb" when it's "incompatible with the expressed or implied will of Congress."

Another conservative scholar, Robert Levy of the Cato Institute, agreed that Bush's inherent powers don't allow him to ignore the 1978 surveillance law. Levy called the eavesdropping program "illegal" but also called it a difficult question.

Among those defending the program's legality at the hearing was Robert Turner of the University of Virginia's Center for National Security Law.

Turner said the control of foreign intelligence is "at the core of executive discretion," and that regardless of the 1978 law, "I don't think Congress could take away the president's independent powers."

Douglas Kmiec of Pepperdine University Law School also asserted the constitutionality of the government's actions. Kmiec, who served under President Reagan and the first President Bush, said the administration's legal arguments regarding both inherent powers and the 2001 use-of-force resolution were "plausible."

"Reasonable minds can differ on this question," Kmiec said.

In the Senate, much of the Democratic minority and at least one Republican (Rhode Island's Lincoln Chafee) agree with Feingold that the spying program is against the law. Some Democrats are less certain on the question. Among Republicans, there also appear to be two prevailing views. One group believes the program is legal. Another has doubts or questions that it hopes to resolve by passing legislation, putting the matter before the courts, or both.

Graham, the South Carolina Republican, warned Gonzales last month that the "inherent powers" argument "seems to have no boundaries when it comes to executive decisions in a time of war" and could be used to "almost wipe out anything Congress wanted to do."

In an interview last week, Graham said he disagreed with both of the administration's main legal arguments in defense of warrantless spying.

But at the same time, he contended that the "law in this area is unsettled" and said, "This idea of censuring the president really throws politics into the middle of a good, healthy debate."

Feingold said last week he decided to offer the censure resolution after sitting through several judiciary and intelligence hearings, listening for "reasonable legal arguments," and not hearing any.

He called the "inherent powers" argument very weak. And in an interview on the "Charlie Rose Show" on PBS Friday, Feingold said he is afraid the Supreme Court may view the issue as a political conflict between the other two branches and never take it up.

"If you just leave this up to the judiciary, what you're doing is giving up Congress' role," Feingold said. "Why wouldn't we assert our role, our constitutional role, which is that we make the laws?"

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