October 10, 2007 1:35 PM PDT
Wiretap laws face new static
- Related Stories
FAQ: How far does the new wiretap law go?August 6, 2007
Attorney general: NSA spy program to be reformedJanuary 17, 2007
AT&T leaks sensitive info in NSA suitMay 26, 2006
Legal loophole emerges in NSA spy programMay 17, 2006
FAQ: NSA's data mining explainedMay 12, 2006
Yahoo on NSA surveillance: No commentFebruary 15, 2006
Former CIA chief expresses doubt about NSA programFebruary 9, 2006
NSA eavesdropping: How it might workFebruary 7, 2006
Gonzales: NSA may tap 'ordinary' Americans' e-mailFebruary 6, 2006
Some companies helped the NSA, but which?February 6, 2006
Bush allies defend NSA surveillanceJanuary 24, 2006
- Related Blogs
President Bush rallies for immortal spy law changes, telco protection
September 20, 2007
Spy chief: Oops! FISA changes didn't aid arrests
September 13, 2007
Spy chief: Expanded U.S. snooping law aided German terror arrests
September 10, 2007
(continued from previous page)
Fredrickson says that an alternative would be to let the Protect America Act expire in February--which would still keep the 1978 FISA law in place--or to enact a different bill sponsored by Rep. Rush Holt, a Democrat from New Jersey, that the ACLU says would be more friendly toward civil liberties.
Marc Rotenberg, head of the Electronic Privacy Information Center in Washington, said the ACLU has a "legitimate" concern about blanket warrants.
"The problem is that the Fourth Amendment, particularly as translated to the wiretap statutes, presumes individualized suspicion, i.e. an actual target," Rotenberg said in e-mail. "It is this obligation that the administration wants to bury with the court's 'program review' or 'basket review.'"
Both the contentious Protect America Act and its controversial predecessor represent Congress' attempts at rewriting the 1978 Foreign Intelligence Surveillance Act, which the Bush administration has been arguing since last year is out of date. It generally requires that investigators obtain a warrant before snooping on communications pertaining to foreign intelligence or international terrorism when at least one party is located inside the United States.
The Bush administration has argued the process of obtaining individualized warrants for all of its targets is too time-consuming and at times impossible, given the agility of 21st century adversaries. It also has griped that the law is worded in such a way that requires investigators to get a warrant even for e-mails and phone calls between foreigners that happen to pass through wires and cables within the United States--a process that may be prohibitive because a large volume of the world's communications pass through switches that are technically on American soil.
The Democrats' new bill begins with language saying a warrant is not required for monitoring communications of any persons outside the United States, "without respect to whether the communication passes through the United States or the surveillance device is located within the United States."
Unlike the Protect America Act, the proposed Restore Act would force executive branch officials to seek permission from that court before eavesdropping on a person or group of people who may be communicating with people located in the United States.
Like the original FISA law, if the investigators are sure the communications they're tapping are occurring between foreigners located in foreign countries, they don't need a warrant. And in an emergency situation, executive branch officials would be allowed to authorize blanket snooping without a warrant for a 45-day period.
Yet there's still no requirement that the court orders target particular people, which civil libertarians believe cannot be reconciled with the Fourth Amendment's strict requirements. The bill merely requires those applying for the warrants to certify a number of generalities about the targets, including which "foreign power" is being targeted and that they're reasonably believed to be located outside the United States and are not U.S. persons--that is, an American citizen or lawful resident.
Shifting political dynamics
In addition to pressure from Republicans and the Bush administration, the sponsors of the Restore Act have to work with a band of 72 House Democrats (about one-third of the party's membership in that chamber) known as the Congressional Progressive Caucus.
That group released a statement laying out eight principles it expects any new surveillance laws to follow. Among them: FISA must remain the sole authority for gathering foreign intelligence, and "Congress should not grant amnesty to any telecommunications company or to any other entity or individual for helping the NSA spy illegally on innocent Americans."
The dynamics seem to be different on the Senate side. Senate Intelligence Committee Chairman John Rockefeller (D-W.Va.) is working with other committee members, including ranking Republican Kit Bond (R-Mo.), to craft a bill expected to be released next week, said Rockefeller spokeswoman Wendy Morigi.
"I can't really characterize the bill or negotiations at this point, as everything is on the table," Morigi said in e-mail.
Bush administration officials have emphasized the Protect America Act was urgently needed to bolster the nation's fight against terrorism. As Justice Department spokesman Dean Boyd put it in a recent interview, the law "has been of enormous value in reducing the intelligence gap that was identified by the director of national intelligence and other administration officials."
But so far, they have not offered specific examples supporting those claims. The one instance in which Director of Intelligence Mike McConnell publicly credited the Protect America Act's role in a terrorism investigation--that is, in a trio of arrests in Germany in August--turned out to be inaccurate.
"It's the intelligence community's job to protect sources and methods to be sure the intelligence community is getting the information we need," said Ross Feinstein, spokesman for the director of National Intelligence. "As much as everybody would like to talk about why the Protect America Act is doing what it's doing...we can't talk about that publicly because ultimately we'll ruin our sources and methods."
9 commentsJoin the conversation! Add your comment