Lawmakers Hustle to Act Before Recess

by Charlie Savage

WASHINGTON -- Congress is rushing to expand the military's authority to wiretap phone calls and e-mails on US soil. The Bush administration, warning that terrorists may soon attack again, is pressuring lawmakers to approve the legislation before they leave town this weekend for their annual August vacations.

The proposal, the details of which remain murky, had received little public discussion before this week and has not undergone the normal committee review process. It would apparently give the National Security Agency legal approval to resume one type of the warrantless wiretapping that President Bush authorized after the terrorist attacks of Sept. 11, 2001. U.S.

The White House says the legislation is necessary to give the spy agency the ability to eavesdrop on suspected terrorists without court-approved warrants. Leaders in the Democratic-controlled Congress say they are willing to pass a version of the bill, and have spent the week in closed-door negotiations on the details.

But civil liberties groups urged Congress to slow down. Democrats have said the anticipated legislation will expire in several months, but the American Civil Liberties Union warned that such laws often end up on the books permanently.

"Our message to Congress is 'Do not rush into this, or you may later find that you regret it the way many members regret the Patriot Act,' " said Tim Sparapani of the ACLU, referring to the bill Congress hurriedly passed the month after 9/11 and made permanent in March 2006.

Lawmakers and administration officials have said little about what the bill would accomplish because it involves classified surveillance technology. A draft of the Democrats' legislation had not yet been released yesterday, and a rival Republican bill, introduced Wednesday, is vaguely worded.

Still, a sketch of the legislation has begun to emerge from fragments of information in media reports and analyses of the Republican bill by legal specialists.

The focus appears to be the NSA's ability to monitor certain calls and e-mails routed through telecommunications switches located on US soil. The agency wants to be able to eavesdrop on overseas-based calls and e-mails passing through those switches without court oversight.

A 1978 law requires the NSA to obtain a warrant from a secret national security court when it listens to calls on US soil. The law was written before changes in technology led some foreign calls to go through American switches.

One proposed change would make clear that the NSA does not need a warrant to intercept foreign soil-to-foreign soil communications, even if it does so by tapping into a device on US soil. But the more controversial change apparently focuses on whether the agency needs a warrant to spy on an overseas target who communicates with people whose location is unknown -- and sometimes turn out to be Americans.

"From what I can tell, the legal issue is how [the warrant law] applies when . . . the government has no idea where the people are on the other end of that [overseas] person's calls and e-mails, but they want to monitor from the US switch," Orin Kerr, a law professor and former Justice Department official, wrote on a legal blog yesterday.

Analysts said the Bush administration apparently wants Congress to change the law to allow the NSA to eavesdrop on such communications without warrants, as long as its primary target is overseas. One part of the negotiations between the White House and Congress concerns who should audit the NSA to make sure it does not abuse that authority. The Bush administration has proposed that Attorney General Alberto R. Gonzales oversee the program, but Democrats want to give such authority to the national security court.

The dispute dates to the weeks after the 2001 terrorist attacks, when Bush secretly authorized the NSA to tap into Americans' international phone calls and e-mails without warrants. Such warrantless wiretapping was prohibited by the 1978 surveillance law, but Bush said he had the wartime power to bypass the statute.

The warrantless wiretapping program came to light in December 2005, prompting a long-running debate over the rule of law and the limits of presidential power during wartime. The administration insisted it had acted legally, but in January, Gonzales announced that the warrantless wiretapping program had ended with an agreement between the administration and a judge on the national security court.

The judge issued a classified order that allowed the NSA's surveillance to continue under the court's oversight. But several months later, another judge on the court decided that the order was illegal. That months-old ruling, which prompted the current debate, was disclosed this week by House minority leader John Boehner during an interview on Fox News.

The administration has not explained why it asked Congress to change the statute instead of reviving the warrantless surveillance program it conducted from 2001 to 2006. Asked whether the administration no longer believed its theory about presidential power, a Justice Department spokesman said, "Given all the ongoing negotiations over these [Foreign Intelligence Surveillance Act] matters right now, we're going to decline comment."

Yesterday, three senators -- Russ Feingold, Democrat of Wisconsin, Robert Byrd, Democrat of West Virginia, and Bernie Sanders, Independent of Vermont -- asked the Senate majority leader, Harry Reid, Democrat of Nevada, to underscore in the coming legislation that it is illegal to bypass the surveillance statute's procedures.

"We are reluctant to amend [the law] without assurances that the administration will actually follow the law," they wrote.
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