Democrats Scrambling to Expand Eavesdropping
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.”
http://www.nytimes.com/2007/08/01/washington/01nsa.html?ex=1343620800&en=f84a7e561028490e&ei=5090&partner=rssuserland&emc=rss
Reflections from news and commentary of the day
Subscribe To
Posts
Comments
5 comments:
A Push to Rewrite Wiretap Law
White House Seeks Warrantless Authority From Congress
By Ellen Nakashima
Washington Post Staff Writer
Wednesday, August 1, 2007; A04
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.
http://www.washingtonpost.com/wp-dyn/conte...3101879_pf.html
The National Interest
Inside Track: More Surveillance, More Often
by Philip Giraldi
08.01.2007
During his July 28 radio address, President George W. Bush’s reference to the recent National Intelligence Estimate (NIE) was little more than a circular argument designed to reach a preordained conclusion. The NIE’s judgments on the state of Al-Qaeda and the threat it poses to the U.S. homeland are by no means universally accepted, though one hopes that the classified version makes some attempt to place its more dubious findings in context. Nonetheless, President Bush cited the NIE’s findings on Al-Qaeda in urging Congress to "modernize" the Foreign Intelligence Surveillance Act (FISA) structure to permit U.S. intelligence agencies to monitor more communications by terrorists, including the internet and "disposable cell phones."
Bush claimed that the NIE confirmed that Al-Qaeda was using its presence in the Middle East—read Iraq—to communicate with its supporters and plot new attacks against the United States. But there is no consensus view in intelligence circles that Al-Qaeda in Pakistan is attempting to exploit its affiliate in Iraq to carry out strikes on the U.S. homeland, as the White House asserts. The NIE does not even say that, suggesting instead that Al-Qaeda might be trying to "leverage" its namesake in Iraq in an attempt to obtain recruits and money. The NIE’s judgments about Al-Qaeda in Iraq are questionable, delegitimizing the president’s advocacy of FISA reform.
No one could possibly object to intercepting terrorist communications, but there is a logical inconsistency in the FISA reform proposal and the evidence cited by President Bush to support it. The threat is described as "plotting" in the Middle East—again, read Iraq, which the White House has frequently described as the epicenter for the "Global War on Terror." But the assertion that Al-Qaeda in Iraq is a genuine danger to the United States is lacking in credibility and is little more than an administration attempt to create a straw man enemy where none really exists to bolster support for increasingly unpopular policies.
Most terrorism experts believe that Al-Qaeda in Iraq is not controlled by Osama bin Laden, that its operational agenda is focused on Iraq itself, and that it has no capability or desire to export its insurgency. It is undeniably convenient for the administration to imply that Al-Qaeda in Iraq is interchangeable with Al-Qaeda in Pakistan because that becomes, ipso facto, a justification for sustaining the surge.
On the domestic front, FISA only relates to communications involving U.S. residents. The president is clearly seeking open-ended authority to intercept communications without any due process, and he apparently intends to do so in the United States, not in Iraq and its neighboring countries where he already has that ability.
Whether America’s intelligence and security services are even demanding more freedom to tap phones and other communications to thwart terrorist attacks is unclear, but there is no evidence to suggest that any terrorist success anywhere has resulted from a lack of investigative tools in the hands of the authorities. It is possible that a case can be made for a change in the current policy, but the White House and its supporters in Congress have not made that case.
House Republican leader John Boehner (OH), citing 9/11, has described the White House proposal as a necessary step to "break down bureaucratic impediments to intelligence collection and analysis." It is not at all clear how unlimited access to currently protected personal information that is already accessible through an oversight procedure would do that. "Modernizing" FISA would enable the government to operate without any restraint. Is that what Boehner actually means?
It is not as if FISA is much of an impediment anyway. Administration assertions to the contrary, FISA, as currently constituted, already permits full access to suspected terrorist communications. The requests to initiate a teltap or other intrusion are almost always approved and they can be implemented on an ad hoc basis by law enforcement even without a formal ruling. The FISA court itself consists of judges who are widely considered to be automatically inclined to accept the government case, not to deny it on constitutional or probable cause grounds. Critics of the proposed changes note that the White House will apparently seek to grant telecommunications companies—hitherto reluctant to turn over their records or permit electronic intrusion into their networks without a court order—blanket immunity from criminal prosecution or civil liability. If that is so and the attempt to change the law is successful, it will mean that the government will be empowered to obtain the communications of any American at any time without any process involved to protect individual rights.
Philip Giraldi, a former CIA officer, is the Francis Walsingham Fellow for the American Conservative Defense Alliance.
Subscribe Now
Copyright © 2006 The National Interest All rights reserved. | Legal Terms
P: (800) 893-8944, Outside the U.S.: (914) 962-6297 | backissues@nationalinterest.org
P.O. Box 622 Shrub Oak NY 10588
The National Interest is published by The Nixon Center
The Nixon Center
1615 L Street, Suite 1250
Washington, DC 20036
www.nixoncenter.org
http://www.nationalinterest.org/PrinterFri...y.aspx?id=15082
Fix FISA Fast
by Jed Babbin
US intelligence agencies are missing out on what may be enormous amounts of crucial intelligence on foreign-based terrorists apparently due to a classified ruling of the Foreign Intelligence Surveillance Act court in about April 2007.
In a telephone conference call Wednesday morning, Senate Intelligence Committee ranking Republican Sen. Kit Bond (R-Mo) declined to say if such a ruling had come down or -- if one had -- what it said. But Bond did say that some significant action -- which we believe most likely is a ruling by that court -- placed a new and severe limitation on US intelligence agencies’ gathering of electronic intelligence. The new burden -- whatever its source -- was severe enough to propel Adm. Mike McConnell, the Director of National Intelligence, to come to the Senate on April 27 and ask that FISA be amended quickly to remove it.
Bond also said that the necessary legislation had been prepared soon after McConnell’s request, and could have been passed out of committee as early as last May. Democrats have objected, and still are creating obstacles that could prevent the amendments from enactment before Congress goes on its August recess Saturday.
The hang-ups include a proposal drafted by Democratic committee staffers that would require a FISA warrant for authority to intercept and record more than a certain number of telephone calls or e-mails from a foreign terrorist. That would extend the FISA requirements into what has -- up to this point -- always been regarded as the President’s constitutional authority to gather foreign intelligence, even by the original drafters of FISA. Republicans are likely to have that excluded.
It is impossible to analyze the FISA problem or the proposed solutions without resort to what we believe is a classified ruling of the court (which we do not have). But well within our reach are two things.
First, whatever burden on intelligence gathering that was created in April is now actually limiting intelligence collection. In effect, the National Security Agency and other US gatherers of electronic intelligence have been precluded – in whole or in part --from listening in on about 90 days’ of terrorist communications to persons within the United States. No wonder Homeland Security Secretary Mike Chertoff had a “gut feeling” about summer dangers. If the FISA court created an obstacle to gathering essential intelligence, Chertoff’s acid reflux may be all we have.
Second, to allow the obstacle to remain is a fundamental violation of the sovereign’s duty to protect the citizenry. All three branches of government are involved, and two -- Congress and the Executive -- have absolutely no excuse for failing to act.
The Democrats are, typically, more concerned about the “rights” of foreign terrorists and the danger of innocent Americans being listened to than the danger of missing intelligence the interception of which might prevent another 9-11.
There are, in FISA and in the proposed legislation, controls that would prevent innocent communications -- if recorded mistakenly -- to be expunged from government records. The proposed legislation apparently creates more of a role for the Attorney General (which Sen. Bond said was intended as another check and balance on the intelligence gathering) and which now, because of Dems’ disdain for Alberto Gonzales, is another stumbling block.
Several members of the press on the call with Bond tried to blame the administration for injecting Gonzales into the matter. Bond’s answer was that the person occupying the office of AG is irrelevant. That didn’t seem to satisfy the pressies.
What if Congress fails to act? What if it just kicks the FISA problem down the road until September? The choice will then be for the President to assert his constitutional authority to gather foreign intelligence (which FISA, even in its original form wasn’t intended to limit) or -- we guess -- to break the law as determined by the FISA court.
The Democrats would probably rather create a situation where George Bush could be accused of “high crimes and misdemeanors” than fix whatever ails FISA. Ten or twenty years ago, reaching that conclusion would have required appending the adverb “amazingly” to the conclusion about the Dems’ preference. That our politics has descended to the point where that adverb is not only unnecessary, it would be factually incorrect.
But even these Dems aren’t likely to go out for a month’s recess without passing some FISA fix, though what may be done will likely be incomplete. The Dems aren’t so far gone that they’d risk that a terrorist attack would happen in August (after they had failed to fix what’s broken and would have to take responsibility.)
The Democrats Prime Directive -- never do anything related to the war that could give you responsibility for the effects -- will overrule their momentary political instinct. Something will get done, but just enough to give cover for those who don’t want to do all that needs to be done.
Our intelligence community remains mired in bureaucracy. Congressional oversight isn’t too little, but too much. Dozens of committees and subcommittees -- as the 9-11 Commission found -- govern pieces and parts of the intelligence functions. This is one major 9-11 Commission recommendation Congress has willfully ignored.
When Congress returns in September, a fix to whatever problems with FISA won’t be enough. Congress needs to fix itself first. Streamline congressional authorities and then you can really fix what’s broken in our intelligence agencies. Roll back the post 9-11 “reforms” and get about fixing what’s really broken
http://www.humanevents.com/article.php?id=21780
Inside Track: More Surveillance, More Often by Philip Giraldi
The National Interest
Inside Track: More Surveillance, More Often
by Philip Giraldi
08.01.2007
During his July 28 radio address, President George W. Bush’s reference to the recent National Intelligence Estimate (NIE) was little more than a circular argument designed to reach a preordained conclusion. The NIE’s judgments on the state of Al-Qaeda and the threat it poses to the U.S. homeland are by no means universally accepted, though one hopes that the classified version makes some attempt to place its more dubious findings in context. Nonetheless, President Bush cited the NIE’s findings on Al-Qaeda in urging Congress to "modernize" the Foreign Intelligence Surveillance Act (FISA) structure to permit U.S. intelligence agencies to monitor more communications by terrorists, including the internet and "disposable cell phones."
Bush claimed that the NIE confirmed that Al-Qaeda was using its presence in the Middle East—read Iraq—to communicate with its supporters and plot new attacks against the United States. But there is no consensus view in intelligence circles that Al-Qaeda in Pakistan is attempting to exploit its affiliate in Iraq to carry out strikes on the U.S. homeland, as the White House asserts. The NIE does not even say that, suggesting instead that Al-Qaeda might be trying to "leverage" its namesake in Iraq in an attempt to obtain recruits and money. The NIE’s judgments about Al-Qaeda in Iraq are questionable, delegitimizing the president’s advocacy of FISA reform.
No one could possibly object to intercepting terrorist communications, but there is a logical inconsistency in the FISA reform proposal and the evidence cited by President Bush to support it. The threat is described as "plotting" in the Middle East—again, read Iraq, which the White House has frequently described as the epicenter for the "Global War on Terror." But the assertion that Al-Qaeda in Iraq is a genuine danger to the United States is lacking in credibility and is little more than an administration attempt to create a straw man enemy where none really exists to bolster support for increasingly unpopular policies.
Most terrorism experts believe that Al-Qaeda in Iraq is not controlled by Osama bin Laden, that its operational agenda is focused on Iraq itself, and that it has no capability or desire to export its insurgency. It is undeniably convenient for the administration to imply that Al-Qaeda in Iraq is interchangeable with Al-Qaeda in Pakistan because that becomes, ipso facto, a justification for sustaining the surge.
On the domestic front, FISA only relates to communications involving U.S. residents. The president is clearly seeking open-ended authority to intercept communications without any due process, and he apparently intends to do so in the United States, not in Iraq and its neighboring countries where he already has that ability.
Whether America’s intelligence and security services are even demanding more freedom to tap phones and other communications to thwart terrorist attacks is unclear, but there is no evidence to suggest that any terrorist success anywhere has resulted from a lack of investigative tools in the hands of the authorities. It is possible that a case can be made for a change in the current policy, but the White House and its supporters in Congress have not made that case.
House Republican leader John Boehner (OH), citing 9/11, has described the White House proposal as a necessary step to "break down bureaucratic impediments to intelligence collection and analysis." It is not at all clear how unlimited access to currently protected personal information that is already accessible through an oversight procedure would do that. "Modernizing" FISA would enable the government to operate without any restraint. Is that what Boehner actually means?
It is not as if FISA is much of an impediment anyway. Administration assertions to the contrary, FISA, as currently constituted, already permits full access to suspected terrorist communications. The requests to initiate a teltap or other intrusion are almost always approved and they can be implemented on an ad hoc basis by law enforcement even without a formal ruling. The FISA court itself consists of judges who are widely considered to be automatically inclined to accept the government case, not to deny it on constitutional or probable cause grounds. Critics of the proposed changes note that the White House will apparently seek to grant telecommunications companies—hitherto reluctant to turn over their records or permit electronic intrusion into their networks without a court order—blanket immunity from criminal prosecution or civil liability. If that is so and the attempt to change the law is successful, it will mean that the government will be empowered to obtain the communications of any American at any time without any process involved to protect individual rights.
Philip Giraldi, a former CIA officer, is the Francis Walsingham Fellow for the American Conservative Defense Alliance.
Subscribe Now
Copyright © 2006 The National Interest All rights reserved. | Legal Terms
P: (800) 893-8944, Outside the U.S.: (914) 962-6297 | backissues@nationalinterest.org
P.O. Box 622 Shrub Oak NY 10588
The National Interest is published by The Nixon Center
The Nixon Center
1615 L Street, Suite 1250
Washington, DC 20036
www.nixoncenter.org
http://www.nationalinterest.org/PrinterFriendly.aspx?id=15082
Court puts limits on surveillance abroad
By Greg Miller
The ruling raises concerns that U.S. anti-terrorism efforts might be impaired at
a time of heightened risk.
http://www.latimes.com/news/nationworld/nation/la-na-spying2aug02,0,5813563.story?coll=la-tot-national&track=ntottext
Post a Comment