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Ruling Limited Spying Efforts
Since the existence of the warrantless wiretapping program was leaked to the public in late 2005, civil libertarians and legal experts have accused the administration of violating FISA and engaging in illegally broad data mining of telephone and e-mail records.
The effect of the judge's decision to curtail some of that surveillance was to limit the flow of information about possible terrorism suspects, according to congressional staffers briefed on the ruling. Last week, McConnell told the Center for Strategic and International Studies that the government faces "this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country."
Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.
"If you're calling from Germany to Japan or China, it's very possible that the call gets routed through the United States, despite the fact that there are geographically much more direct routes to Asia," said Stephan Beckert of Telegeography Inc.
That was not true when Congress passed the Foreign Intelligence Surveillance Act in 1978. The law established much stricter limits on intercepting communications involving people or facilities in the United States. If those limits apply now, for example, to calls from Pakistan to Yemen that pass through U.S. switches, the NSA could lose access to a substantial portion of global communications traffic.
Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.
"It clearly shows that Congress has been playing with half a deck," said Jim Dempsey, policy director for the Center for Democracy and Technology. "The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence."
In April, McConnell proposed a much broader revision of FISA than what the administration is pressing Congress to approve this week. Under the new plan, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.
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. On Saturday, Bush in his radio address argued more narrowly that "one of the most important ways we can gather that information is by monitoring terrorist communications." FISA, he said, "provides a critical legal foundation" in allowing the government to collect that information while protecting Americans' civil liberties.
Testifying on the Hill in May, McConnell argued that the law needed to be updated to accommodate technology's advance. "Today a single communication can transit the world, even if the two people communicating are only a few miles apart," he said, alluding to the fact that a significant volume of e-mails and phone calls are routed through the United States.
Democrats announced this week a proposal that would also expand the government's wiretapping authority but would keep it under FISA court supervision. The authority would expire in six months.
This week, McConnell spent hours on the Hill briefing lawmakers. On Tuesday, he gave about 50 senators a classified briefing making the case for the legislation. That briefing included the change in the threat environment, as well as a description of the court development, according to a government source who requested anonymity because the briefing was classified.
"He was not complaining about one judge or another," the source said. "He was saying, 'I need to collect X, but I can only collect Y and we need to change the law on that.' "
Washington Post staff writers Dan Eggen and Barton Gellman and washingtonpost.com staff writer Paul Kane contributed to this report.