[info] Democrats Scrambling to Expand Eavesdropping

[Eugen Leitl]

http://www.nytimes.com/2007/08/01/washington/01nsa.html?_r=3&adxnnl=1&oref=slogin&ref=washington&adxnnlx=1185971637-vItGtV1UKZanyYUFRI6wgw&oref=slogin

August 1, 2007 Democrats Scrambling to Expand Eavesdropping 

By JAMES RISEN

WASHINGTON, July 31 — Under pressure from President Bush, Democratic leaders
in Congress are scrambling to pass legislation this week to expand the
government’s electronic wiretapping powers.

Democratic leaders have expressed a new willingness to work with the White
House to amend the Foreign Intelligence Surveillance Act to make it easier
for the National Security Agency to eavesdrop on some purely foreign
telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s
program of wiretapping without warrants became public in December 2005.

In the past few days, Mr. Bush and Mike McConnell, director of national
intelligence, have publicly called on Congress to make the change before its
August recess, which could begin this weekend. Democrats appear to be worried
that if they block such legislation, the White House will depict them as
being weak on terrorism.

“We hope our Republican counterparts will work together with us to fix the
problem, rather than try again to gain partisan political advantage at the
expense of our national security,” Senator Harry Reid of Nevada, the majority
leader, said in a statement Monday night.

Some civil liberties groups oppose the proposed changes, expressing concern
that there might be far-reaching consequences.

“Congress needs to take its time before it implements another piece of
antiterrorism legislation it will regret, like the Patriot Act,” said Anthony
D. Romero, executive director of the American Civil Liberties Union. “The
Bush administration clearly has abused the FISA powers it already has and
clearly wants to go back to the good old days of warrantless wiretapping and
domestic spying. Congress must stop this bill in its tracks.”

The administration says that digital technology and the globalization of the
telecommunications industry have created a legal quandary for the
intelligence community. Some purely international telephone calls are now
routed through telephone switches inside the United States, which means such
“transit traffic” can be subject to federal surveillance laws requiring
search warrants for any government eavesdropping.

Under the program of wiretapping without warrants, which began soon after the
Sept. 11 attacks, the N.S.A. eavesdropped on the transit traffic without
seeking court approval. But in January, the administration placed the program
back under the FISA law, which meant warrants were required for surveillance
of the transit traffic.

In the Senate, talks were under way on Tuesday on proposed legislation among
members of the Senate Intelligence Committee and the Senate Judiciary
Committee, as well as Mr. Reid and the Senate leadership, Congressional aides
said. Similar talks are under way in the House.

Mr. McConnell sent Congressional leaders a new legislative plan last Friday,
one that was more limited than an earlier administration plan.

The White House has told Democratic lawmakers that it will accept a narrow
bill now but will come back later for broader changes, including legal
immunity for telecommunications companies involved in the wiretapping
program.

Mr. McConnell met with Congressional leaders of both parties on Tuesday to
try to reach a compromise, a spokesman for him said.

Representative Heather Wilson, Republican of New Mexico and a member of the
House Intelligence Committee, said, “Admiral McConnell has made the case that
this change is needed and that it is a serious problem. This is too serious
for political games.”

One obstacle to a deal this week is a disagreement between Democrats and the
White House over how to audit the wiretapping of the foreign-to-foreign calls
going through switches in the United States.

The Democrats have proposed that the eavesdropping be reviewed by the secret
FISA court to make sure that it has not ensnared any Americans.

The administration has proposed that the attorney general perform the review,
but Democrats are unwilling to give that kind of authority to Attorney
General Alberto R. Gonzales, who is under fire for what some lawmakers
describe as his misleading testimony about the dismissals of federal
prosecutors and the wiretapping program.

Mr. Gonzalez has insisted that a 2004 dispute between the White House and
Justice Department officials that erupted in the hospital room of then
Attorney General John Ashcroft related to other intelligence activities. On
Sunday, The New York Times reported that the dispute centered on the data
mining elements of the N.S.A.’s program, rather than on the eavesdropping,
leaving open the possibility that Mr. Gonzalez had been legalistic in his
testimony, but had technically not lied.

In a letter Tuesday to Senator Arlen Specter, the Pennsylvania Republican who
is the ranking minority member of the Senate Judiciary Committee, Mr.
McConnell seemed to confirm the Times account though the letter did not
mention Mr. Gonzalez or his testimony.

The letter said that “shortly after 9/11, the president authorized the
National Security Agency to undertake various intelligence activities
designed to protect the United States from further terrorist attack. A number
of these intelligence activities were authorized in one order.”

The letter adds that “one particular aspect of these activities, and nothing
more, was publicly acknowledged by the president and described in December
2005, following an unauthorized disclosure.”