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3 August 2007
http://www.nytimes.com/2007/08/01/washington/01nsa.html
By JAMES RISEN
Published: August 1, 2007
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.”