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A Push to Rewrite Wiretap Law

Washington Post | August 1, 2007
Ellen Nakashima

The Bush administration is pressing Congress this week for the authority to intercept, without a court order, any international phone call or e-mail between a surveillance target outside the United States and any person in the United States.

The proposal, submitted by Director of National Intelligence Mike McConnell to congressional leaders on Friday, would amend the Foreign Intelligence Surveillance Act (FISA) for the first time since 2006 so that a court order would no longer be needed before wiretapping anyone "reasonably believed to be located outside of the United States."

It would also give the attorney general sole authority to order the interception of communications for up to one year as long as he certifies that the surveillance is directed at a person outside the United States.

The administration and its Republican allies on Capitol Hill have mounted a full-court press to get the Democratic-controlled Congress to pass the measure before lawmakers leave town this week for the August recess, trying to portray reluctant Democrats as weak on terrorism.

Democratic lawmakers favor a narrower approach that would allow the government to wiretap foreign terrorists talking to other foreign terrorists overseas without a warrant if the communication is routed through the United States. They are also willing to give the administration some latitude to intercept foreign-to-domestic communications as long as there is oversight by the FISA court.

Senate Majority Leader Harry M. Reid (D-Nev.) suggested yesterday that a compromise could be reached this week. "The only question," he told reporters, "is how much involvement the attorney general will have" in approving the wiretapping "as compared to the FISA court itself."

The measure faces a number of procedural roadblocks due to the crowded congressional calendar. But the administration, in an effort to speed the process, separated its immediate demands from a more sweeping proposal to rewrite FISA that became tangled in a debate between Congress and the executive branch over access to related Justice Department legal documents.

Civil liberties and privacy groups have denounced the administration's proposal, which they say would effectively allow the National Security Agency to revive a warrantless surveillance program conducted in secret from 2001 until late 2005. They say it would also give the government authority to force carriers to turn over any international communications into and out of the United States without a court order.

In January, the administration announced that the surveillance program was under the supervision of a special FISA court that Congress set up to independently review and judge wiretap requests when it passed FISA in 1978. But critics said that if the proposal succeeds, the court's supervision will no longer be required for many wiretaps.

"It's the president's surveillance program on steroids," said Jim Dempsey, policy director at the Center for Democracy and Technology. Dempsey said that under the new law the government would no longer have to allege that one party to the call was a member of al-Qaeda or another terrorist group. An unstated facet of the program is that anyone the foreigner is calling inside the United States, as long as that person is not the primary target, would also be wiretapped.

"They're hiding the ball here," said Caroline Fredrickson, director of the ACLU's Washington legislative office. "What the administration is really going after is the Americans. Even if the primary target is overseas, they want to be able to wiretap Americans without a warrant."

The measure is intended as an "interim proposal" to close short-term "critical gaps in our intelligence capability," McConnell said in a letter to congressional leaders. It would make clear that court orders are not necessary to "effectively collect foreign intelligence about foreign targets overseas."

Bush, in his Saturday radio address, said that rewriting FISA is necessary because the "the terrorist network that struck America on September the 11th wants to strike our country again." GOP leaders have accused Democrats of blocking changes, suggesting that if another attack happens, Democrats will be to blame.

"With heightened risk of terror attack, why are Democrats holding up critical FISA changes?" read a news release issued yesterday by House Minority Leader John A. Boehner (R-Ohio). "It's time for Democrats to stop ignoring, downplaying and sidestepping our FISA problem and start working with Republicans to keep America safe."

Democratic leaders have been working with administration officials on altering FISA, aides said. "I am committed to giving our intelligence community the tools they need to fight terrorism and am working very hard with the most senior members of the administration to do that as soon as possible," Reid said.

Democrats have said for more than a year that they are willing to make targeted changes, such as making explicit that wiretapping a call between two suspects overseas, where the call that happens to pass through the United States, needs no court order.

But Reid said, "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."

The proposal would also allow the NSA to "sit on the wire" and have access to the entire stream of communications without the phone company sorting, said Kate Martin, director of the Center for National Security Studies.

"It's a 'trust us' system," she said. "Give us access and trust us."

Staff writer Dan Eggen contributed to this report.

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