"Intentional Manipulation Of The Facts" Get Surveillance Act Passed
NY Times | August 11, 2007
ERIC LICHTBLAU, JAMES RISEN and MARK MAZZETTI
At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier.
Congress needed to act quickly, intelligence officials said, to repair a dangerous situation.
Some lawmakers were alarmed. Others, jaded by past intelligence warnings, were skeptical.
The report helped set off a furious legislative rush last week that, improbably, broadened the administration's authority to wiretap terrorism suspects without court oversight.
It was a surprising victory for the politically weakened White House on an issue that had plodded along in Congress for months without a clear sign of urgency or resolution. A flurry of talk in the last three weeks on intelligence gaps, heightened concern over terrorist attacks, burdensome court rulings and Congress's recess helped turn the debate from a slow boil to a fever pitch.
For months, Democrats had refused to give the administration new wiretapping powers until the White House agreed to turn over documents about the National Security Agency program to eavesdrop on some Americans' international communications without warrants.
The White House refused to back down, even after Congressional subpoenas were issued. The administration ultimately attracted the support it needed to amend the Foreign Intelligence Surveillance Act from moderate Democrats who felt pressed to act before the recess.
For the White House and its Republican allies, the decision by the Democratic-controlled Congress to act quickly was critical to safeguarding the country this summer as intelligence officials spoke of increasing “chatter” among Qaeda suspects.
To many Democrats who opposed the action, it was a reflection of fear mongering by the White House, and political capitulation by some fellow Democrats.
“There was an intentional manipulation of the facts to get this legislation through,” said Senator Russ Feingold of Wisconsin, a Democrat on the Intelligence Committee who voted against the plan.
The White House, Mr. Feingold said Friday in an interview, “has identified the one major remaining weakness in the Democratic Party, and that's its unwillingness to stand up to the administration when it's making a power grab regarding terrorism and national security.”
“They have figured out that all they have to do is start talking about an imminent terrorist threat, back it up against a Congressional recess, and they know the Democrats will cave,” he added.
Representative Jane Harman, Democrat of California, said the White House “very skillfully played the fear card.”
“With the chatter up in August,” Ms. Harman said, “the issue of FISA reform got traction. Then they ran out the clock.”
A White House official said the push was driven by genuine concerns by Mike McConnell, director of national intelligence, for the government's ability to conduct terrorist surveillance.
“There was no real argument on the need for a fix” between Democrats and Republicans, the White House official said. “He's a straight shooter.”
The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court's supervision.
A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government's ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil.
The security agency was newly required to seek warrants to monitor at least some of those phone calls and e-mail messages. As a result, the ability to intercept foreign-based communications “kept getting ratcheted down,” said a senior intelligence official who insisted on anonymity because the account involved classified material. “ We were to a point where we were not effectively operating.”
Mr. McConnell, lead negotiator for the administration in lobbying for the bill, said in an interview that the court's restrictions had made his job much more difficult.
“It was crazy, because I'm sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications,” he said. “And the only reason I'm signing that warrant is because it touches the U.S. communications infrastructure. That's what we fixed.”
In April, Mr. McConnell began talking with lawmakers in classified meetings about that “intelligence gap” and alluded to it publicly, too. At the time, the administration proposed sweeping measures to “modernize” the foreign surveillance law, a much broader proposal in some respects than what Congress approved.
The proposal was considered dead on arrival by some Democrats, who argued that the administration was overreaching and asking Congress to legislate blindly without access to documents on the legal history and operations of the program.
Attorney General Alberto R. Gonzales' s political problems, including questions about truthfulness in testimony on the eavesdropping, helped stall any action, in part because the administration wanted him to have oversight of the broadened wiretapping authorities.
When the administration proposed its revisions in April, “everyone kind of laughed at us,” said a Justice Department official who insisted on anonymity. “We got bludgeoned. People just said: ‘Are you kidding? We're not even going to consider it.' ”
The administration's classified briefings on the “intelligence gap” grew more urgent. In May, members of the Intelligence Committees began hearing about specific cases in which eavesdroppers could not intercept certain communications, said Representative Heather A. Wilson, Republican of New Mexico.
By June and early July, Ms. Wilson said Friday in an interview, the scope of what intelligence officials were missing had grown “frighteningly large.”
“I begged my colleagues to act,” she said. “They did nothing for six weeks. They weren't going to act unless they were forced to. So we started raising the pressure.”
Some Democrats reacted skeptically to the closed-door briefings by Mr. McConnell and other intelligence officials. Intelligence Committee members acknowledged that they learned in May that the secret court ruling had caused some problems, but it was not until last month that the administration reported the gaps.
“They changed that story,” a Democratic Congressional aide said, amid talk about a backlog in warrant applications.
By mid-July, Mr. McConnell's briefings, coupled with the release of a new National Intelligence Estimate on terrorism, set the tone for a series of talks between the White House and Mr. McConnell's office and Democratic Congressional leaders.
After learning of the intelligence problems, Senator John D. Rockefeller IV, Democrat of West Virginia and chairman of the Senate Intelligence Committee, contacted the White House to discuss repairing them. On July 12, the White House chief of staff, Joshua B. Bolten, discussed the problem with the Senate majority leader, Harry Reid of Nevada, a senior White House official said.
At first, some Democratic leaders favored amending the surveillance law in September. Mr. McConnell pressed for an immediate repair.
Two weeks later, the administration lowered its sights, slimming its original 66-page proposal to 11 pages and eliminating some of the controversial plans like broad immunity from lawsuits for telecommunications companies that aided eavesdropping.
Congressional Democrats effectively agreed to try to forge a narrow bill to address the foreign problem that Mr. McConnell identified. But they were at odds over a critical detail, the court oversight.
Democratic leaders did not demand that the security agency seek individual court warrants for eavesdropping. But they did want the court to review and approve the agency procedures soon after surveillance began.
The administration, however, wanted the attorney general and the director of national intelligence to approve the surveillance, with the court weighing in just to certify that no abuses occurred, and only long after the surveillance had been conducted.
The talks intensified in the days before the recess last weekend, highlighted by proposals and counterproposals in calls between Mr. McConnell and the Democratic leadership.
By Aug. 2, the two sides seemed relatively close to a deal. Mr. McConnell had agreed to some increased role for the secret court, a step that the administration considered a major concession, the White House and Congressional leaders said.
But that night, the talks broke down. With time running out, the Senate approved a Republican bill that omitted the stronger court oversight. The next day, the House passed the bill.
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