Eavesdropping Reforms Empower Spy Chief
AP | August 7, 2007
For the first time in nearly four decades, a senior intelligence official — not a secretive federal court — will have a decisive voice in whether Americans' communications can be monitored when they talk to foreigners overseas.
The shift came over the weekend as Congress hustled through changes to the 1978 Foreign Intelligence Surveillance Act, known as FISA.
The bill provides new powers to the National Security Agency to monitor communications that enter the United States and involve foreigners who are the subjects of a national security investigation.
Apprehensive about what they were doing, Congress specified that the new provisions would expire after six months, unless renewed.
They would give National Intelligence Director Mike McConnell and Attorney General Alberto Gonzales joint authority to approve the monitoring of such calls and e-mails, rather than the 11-member Foreign Intelligence Surveillance Court.
That means an intelligence official is now empowered to sort through the legalistic, secretive world of FISA, rather than a judge or the nation's highest law enforcement officer.
McConnell was added to the legal decision-making after lawmakers argued that the embattled attorney general shouldn't hold the power alone. The spy chief's experience is largely in military intelligence, not legal matters.
Civil liberties groups and some Democrats call the bill a vast expansion of government power. In the past several days, officials who work for McConnell, the Justice Department and the Republican congressional leadership have argued vehemently that that isn't so.
On Monday, White House spokeswoman Tony Fratto dismissed as "highly misleading" any suggestion that the changes broadly expanded the government's authority to eavesdrop on Americans' communications without court approval.
However, the law's wording — underscored by conversations with administration officials — shows the rules governing when and how Americans' calls and e-mails will be monitored have changed significantly.
Communications that can get caught up in intelligence collection require a spectrum of approvals, depending on the circumstances. Generally, such calls, e-mails, text messages and other electronic exchanges fall into three categories:
_ Purely foreign overseas communications. The NSA can monitor these calls and e-mails without any signoff from a judge or a senior government official.
_ Domestic conversations between two Americans. The Fourth Amendment's protection against unreasonable search and seizure requires that the government get approval from a court before eavesdropping on these exchanges.
_ Communications between an American and a foreigner, a more complex, gray area. If the American is the target of the investigation, then a court must approve the surveillance, the White House says. However, if the foreigner is the target, no court approval is necessary under the new law. Instead, Gonzales and McConnell will decide together whether to go ahead with the work.
It's this area — when an American is talking to a foreign suspect — where the Bush administration has acquired powers it didn't have before.
Under government regulations, agencies are supposed to minimize the collection, retention, and dissemination of any information about a U.S. citizen. Often that means names are blacked out, unless the identity is crucial to understanding the conversation.
Lisa Graves of the Center for National Security Studies, which advocates for civil liberties, said the new law will potentially allow the government to intercept millions of Americans' calls and e-mails without warrants — as long as the NSA and other authorities have a foreign suspect in their sights.
"This power that they have obtained is a dramatic expansion," she said.
The Bush administration also fixed an odd quirk of the surveillance law that it said had emerged with the rapid technological growth of the past two decades: The government had to get legal approval to listen in on foreign suspects who are located overseas but whose conversations cross into the extensive U.S. communications network, as millions of international calls and e-mails do each day.
While the law is in effect, that legal approval will no longer be required, officials acknowledged.
The power may last longer than some people expect, Graves noted, thanks to a little-noticed provision of the bill. While the law expires in February unless Congress acts to extend it, any surveillance orders that are in place when it sunsets can last up to a full year, she said.
Without a repeal, lawmakers "weren't just giving them the power for six months. They were giving it to them for the rest of the administration," Graves said.
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