With a deadline looming, President Bush and congressional Democrats are locked in a standoff over the government’s authority to spy on foreign phone calls and e-mails that pass through the United States.
A temporary law that makes it easier to carry out that spying expires Saturday night at midnight, and Bush and his top intelligence officials say the consequences are dire. Al-Qaida, Bush says, is “thinking about hurting the American people again,” and would be helped if U.S. eavesdropping is hampered.
The Democrats are equally adamant. Bush has all the authority he needs to intercept terrorist communications, even if the law expires, House Speaker Nancy Pelosi said Thursday. The congressional majority is simply trying to balance concerns about civil liberties against the government’s spy powers, and needs time to do it, she said.
So who’s right?
A quirk in the temporary eavesdropping law adopted by Congress last August complicates the answer. The law allows the government to initiate wiretaps for up to one year against a wide range of targets. It also explicitly compels telecommunications companies to comply with the orders, and protects them from civil lawsuits that may be filed against them for doing so.
But while the wiretap orders can go on for a year from the time they started, the compliance orders and the liability protections go away when the law expires, says Director of National Intelligence Mike McConnell.
“There is no longer a way to compel the private sector to help us,” he said Thursday in an Associated Press interview.
That is not exactly true. Even if the law expires, the government can get an order from the secret Foreign Intelligence Surveillance Court to compel their cooperation. That court was created 30 years ago for just such a purpose.
But McConnell rejects that option. He says the process of getting a court order ties intelligence agents up in red tape.
The 1978 Foreign Intelligence Surveillance Act requires court permission to tap wires inside the United States. Changes in technology since then mean much of the world’s computer and phone traffic passes through the United States, much of it on fiber-optic cable. Successive court cases say court orders are needed to listen in on any of them, McConnell said.
To get a court order, intelligence agents have to prove they have “probable cause” to believe a target is foreign agent or terrorist before being allowed to tap a line inside the United States, even if the communication originates and ends in a foreign country. “If it touches a wire in the U.S. you have to have a warrant,” he said.
It is difficult for intelligence agents piecing together shreds of information to get enough to merit probable cause, he said. By the time they can amass enough information to do that, the phone number they wanted to track might already be obsolete, McConnell said.
“Terrorists change their name, change their means of communicating all the time. Every time that changes you’ve got to stay with it. We have to be very dynamic. More than likely we would miss the very information we need to prevent some horrendous act from taking place in the United States,” he said.
The FISA law does make provisions for fleeting targets when there is not time to fill out the paperwork. Within a few days, though, the paperwork must be completed and probable cause proved to get an order approved.
The easy solution, say Democratic congressional leaders, is to extend the current law long enough to allow the House and Senate to work out the differences in their respective surveillance bills. The House finished its version in October, but the Senate did not finish until this week, pushing Congress hard up against the deadline.
The law had been set to expire on Feb. 1. The White House reluctantly agreed to a 15-day extension but refuses to approve any more, and has appealed to House leaders to simply approve the version approved by the Senate, which includes the legal immunity for telecom companies the president wants.
The immunity provision protects phone companies that helped the government in its warrantless wiretapping program conducted outside the authority of the FISA court, a feature the House intentionally left out.
Unable to muster the votes to extend the current law, House leaders say they’d rather let it lapse and operate under the old FISA rules than be pressured by the White House into accepting the Senate bill. House Republicans protested with a walkout Thursday.
House Democratic leaders say they’re reluctant to grant legal immunity to the phone companies without knowing what they did, and have asked for more information, most of it classified. They say the administration is balking.
McConnell acknowledged that the White House’s refusal to extend the current law is meant to force Congress to adopt the Senate bill. “If anybody agrees to 21-day extension, in 21 days we’re going to have the same discussion again,” he said.
However, Pelosi predicted the House and Senate versions could be reconciled in three weeks.
McConnell believes retroactive telecom immunity is critical to national security. Failure to provide it could result in telecommunications companies challenging FISA court orders as a way to further insulate themselves from future lawsuits, he argued.
Already, he says the roughly 40 lawsuits filed against telecom companies nationwide has chilled the private sector’s willingness to help the intelligence agencies in ways unrelated to electronic surveillance. Exactly how is classified, and he won’t elaborate.
“I’m talking about the things they’ve done to help us track terrorists,” said McConnell. “They did lawful things at the request of the government under the conditions they’ve done it for 50 years.”
But that help has waned over the last two years, he said.
“Your country is at risk if we can’t get the private sector to help us, and that is atrophying all the time,” he said.