October 2007: Why the Wrangling About Warrantless Wiretaps?

Washington Watch | October 2007
By Bruce Moyer

In the immediate aftermath of Sept. 11, President Bush approved the National Security Agency’s wiretapping of al Qaeda suspects through a secret program of surveillance intercepts of phone calls, e-mail, and other electronic communications. The New York Times revealed the existence of the program in December 2005. The intelligence-gathering project arguably had been conducted outside the reach of the Foreign Intelligence  Surveillance Act of 1978, which required that such spying proceed only under secret orders issued by a special federal court.

Administration officials justified the warrantless  wiretapping by pointing to Presidents since Lincoln who have claimed the constitutional power to monitor enemy communications in wartime. White House officials claimed that had they sought to amend the FISA statute to authorize warrantless eavesdropping, such legislative efforts would have revealed and jeopardized the existence of the secret program.

The election of a Democratic majority in Congress pushed the Bush administration to address increasing questions about the legality of the Terrorist Surveillance Program and to send up a comprehensive proposal to revamp the FISA law. Negotiations between the administration and Congress over the proposal floundered, largely because of Senate Democrats’ insistence  that the White House turn over documents related to the origins of the surveillance program.

National Intelligence Director Michael McConnell has led the push to update FISA, arguing that the law as written in 1978 is out of sync with today’s technology.  FISA was crafted at a time when intercepts of purely foreign communications were conducted overseas and outside the coverage of FISA. Only truly U.S. domestic communications intercepted on American  soil were subject to FISA warrants and other requirements.  In today’s wired world, however, foreign calls—such as those entirely between al Qaeda operatives  overseas—can flow through switching facilities in the United States and be targeted for interception on American soil and thus become subject to FISA.

Just before Congress recessed for its August break, the White House pressed Congress to pass a limited exception to FISA’s warrant requirement, permitting warrantless surveillance of the communications of terrorist targets located abroad. In arguing that the bill was urgently needed, House Minority Leader John A. Boehner (R-Ohio) revealed that a recent FISA court ruling restricted the government’s ability to spy without  a warrant on foreign-to-foreign communications. The White House sweetened its legislative proposal by limiting the life of the emergency legislation to only six months, subject thereafter to reauthorization by Congress.

The legislation, called the Protect America Act, won approval from House and Senate Republicans and enough Democrats in early August, after President Bush threatened to veto a stricter proposal that would have provided more court oversight. Strongly divided Democratic lawmakers were reluctant to oppose the President, concerned that they would be portrayed by Republicans as soft on terrorism.

The ink on the new law was barely dry, however, before civil liberties and privacy advocacy groups vented their outrage. Democrats who opposed passage  of the law joined the chorus of dissent, pointing to the law’s authorization of eavesdropping, without court review, of American citizens who happen to be located on foreign soil.

When congressional lawmakers returned from their August recess, Democratic leaders in the House and Senate began to push for repeal of the expanded authority.  The administration, meanwhile, has urged Congress  to make the temporary fix permanent and pursue a wider overhaul of FISA. National Intelligence Director McConnell told Congress that warrantless wiretapping had helped thwart a bomb plot in Germany aimed at American interests, and he warned that the failure to retain the expanded authority would cut in half the available amount of information gained from surveillance. The administration also continued to push its efforts  to shield telecommunications companies against lawsuits for their role in the National Security Agency’s surveillance program.

All these developments mean that, in the run-up to the 2008 elections, the tug-of-war between Congress and the President over changes to a highly technical law governing American spying on terrorists and foreign  agents will continue. House passage of a Democrat-  favored bill is probable, but the Senate outcome is more problematic, because a 60-vote threshold there will require Democrats to agree to legislation that satisfies the President. Whether continued wrangling between both ends of Pennsylvania Avenue suits or disfavors partisan aims will have a huge impact on the path of the debate.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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