Recent Law Allows New Level of Spying
August 21, 2007
New surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond eavesdropping to include — without court approval — certain types of physical searches of U.S. citizens and the collection of their business records, Democratic congressional officials and other experts said.
Administration officials acknowledged they had heard such concerns from Democrats in Congress recently, and there was a continuing debate over the meaning of the legislative language. But they said the Democrats were raising theoretical questions based on a harsh interpretation of the legislation.
The administration also emphasized there would be strict rules to minimize the extent to which Americans would be caught up in the surveillance.
The dispute illustrates how lawmakers, in the end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.
It also offers a case study in how changes in a complex piece of legislation have the potential to fundamentally alter the basic meaning of the Foreign Intelligence Surveillance Act, or FISA, a landmark national-security law.
Passed in 1978, FISA required the government to obtain a warrant from a secret court for surveillance of Americans.
The updated legislation, signed by President Bush on Aug. 5, gives the government leeway to intercept, without warrants or court oversight, communications between foreigners that are routed through equipment in the U.S., provided that “foreign-intelligence information” is at stake.
The new law also gives the director of national intelligence, Mike McConnell, and Attorney General Alberto Gonzales broad discretion in enacting the new procedures and approving the way surveillance is conducted.
Two weeks after the legislation was signed into law, heated debate continues over how much power Congress gave the president.
It is possible some of the changes were the unintended consequences of the rushed legislative process rather than a purposeful effort by the administration to enhance its ability to spy on Americans.
“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.
But a senior intelligence official involved in the discussions on behalf of the administration said the legislation was seen solely as a way to speed access to the communications of foreign targets, not to sweep up the communications of Americans by claiming to focus on foreigners.
“I don’t think it’s a fair reading,” said the official, who declined to be identified. “The intent here was pure: If you’re targeting someone outside the country, the fact that you’re doing the collection inside the country, that shouldn’t matter.”
Democratic leaders have said they plan to push for a revision as soon as next month. “It was a legislative overreach, limited in time,” one congressional Democratic aide said. “But Democrats feel like they can regroup.”
Some civil-rights advocates said they suspected the administration made the language of the bill intentionally vague to allow it even broader discretion over eavesdropping decisions.
Intentional or not, the result — according to top Democratic aides and other experts on national-security law — is that the legislation may grant the government the right to collect a vast array of information on U.S. citizens inside the U.S. without warrants, as long as the administration says the spying concerns the monitoring of a person believed to be overseas.
“This may give the administration even more authority than people thought,” said David Kris, a former senior Justice Department lawyer in the Bush administration.
Several legal experts said that by redefining “electronic surveillance,” the new law undercuts the legal underpinnings of several provisions in FISA, indirectly giving the government the power to use intelligence-collection methods far beyond eavesdropping that previously required court approval if conducted inside the United States.
These new powers include the collection of business records, physical searches and “trap-and-trace” operations, analyzing specific calling patterns.
For instance, the legislation would allow the government, under certain circumstances, to search the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, Democratic congressional aides and experts said.
The senior intelligence official acknowledged that congressional staff members had raised concerns about the law in private meetings last week and that ambiguities in the bill’s wording may have led to some confusion. “I’m sure there will be discussions about how and whether it should be fixed,” the official said.
The new legislation expires in six months. Administration officials said the legislation was critical to fill an “intelligence gap” that had left the U.S. vulnerable to attack.