By Ellen Nakashima and Joby Warrick
Washington Post Staff Writers
Sunday, August 5, 2007
The Democratic-controlled House last night approved legislation President Bush's intelligence advisers wrote to enhance their ability to intercept the electronic communications of foreigners without a court order.
The 227 to 183 House vote capped a high-pressure campaign by the White House to change the nation's wiretap law, in which the administration capitalized on Democrats' fears of being branded weak on terrorism and on Congress's desire to act on the issue before its August recess.
The Senate had passed the legislation Friday night after House Democrats failed to win enough votes to pass a narrower revision of a statute known as the Foreign Intelligence Surveillance Act. The original statute was enacted after the revelation of CIA abuses in the 1970s, and it required judicial oversight for most federal wiretapping conducted in the United States.
Privacy and civil liberties advocates, and many Democratic lawmakers, complained that the Bush administration's revisions of the law could breach constitutional protections against government intrusion. But the administration, aided by Republican congressional leaders, suggested that a failure to approve the legislation sought by intelligence officials could expose the country to a greater risk of terrorist attacks.
Democrats facing reelection next year in conservative districts helped propel the bill to a quick approval. Adding to the pressures they felt were recent intelligence reports about threatening new al-Qaeda activities in Pakistan and the disclosure by House Minority Leader John A. Boehner (R-Ohio) of a secret court ruling earlier this year that complicated the wiretapping of purely foreign communications that happen to pass through communications nodes on U.S. soil.
The bill would give the National Security Agency the right to collect such communications in the future without a warrant. But it goes further than that: It also would allow the monitoring, under certain conditions, of electronic communications between people on U.S. soil, including U.S. citizens, and people "reasonably believed to be outside the United States," without a court's order or oversight.
White House spokesman Tony Fratto emphasized that the bill is not meant to increase eavesdropping on Americans or "to affect in any way the legitimate privacy rights" of U.S. citizens. Data related to Americans communicating with foreigners who are the targets of a U.S. terrorism investigation could be monitored only if intelligence officials have a reasonable expectation of learning information relevant to that probe, a senior U.S. official said.
"There are a lot of people who felt we had to pass something," said one angry Democratic lawmaker who spoke on the condition of anonymity, citing the sensitivity of caucus discussions. "It was tantamount to being railroaded."
In a sole substantial concession to Democrats, the administration agreed to a provision allowing the legislation to be reconsidered in six months.
Some House Democrats were still upset by what they saw as a deliberate scuttling by the White House of negotiations on a compromise bill. On Thursday, Democratic leaders reached what they believed was a deal with the government's chief intelligence official, Director of National Intelligence Mike McConnell, only to be presented with a new list of conditions at the last minute.
The White House and McConnell have denied that a deal had been reached.
"I think the White House didn't want to take 'yes' for an answer from the Democrats," said Rep. Jan Schakowsky (D-Ill.), an intelligence committee member.
The administration said that its bill is aimed at bringing the Foreign Intelligence Surveillance Act of 1978 into step with advances in technology, primarily by restoring the government's power to gather without a warrant foreign intelligence on targets located overseas.
Because the law has not kept up with advances in telecommunications, McConnell said in congressional testimony, the government "is significantly burdened in capturing overseas communications of foreign terrorists planning to conduct attacks inside the United States."
Civil liberties and privacy advocates and a majority of Democrats said the bill could allow the monitoring of virtually any calls, e-mails or other communications going overseas that originate in the United States, without a court order, if the government deems the recipient to be the target of a U.S. probe.
Last night, several Democrats said the bill would undermine the Fourth Amendment. Rep. Jerrold Nadler (D-N.Y.) said lawmakers were being "stampeded by fear-mongering and deception" into voting for the bill. Rep. Jane Harman (D-Calif.) warned that the bill would lead to "potential unprecedented abuse of innocent Americans' privacy."
Republicans and administration officials argued to the contrary that the distinctions in the present law -- between calls inside and outside the country -- are outmoded in an age of cellphones that work on multiple continents. What intelligence officials seek, a White House official said in an interview yesterday, is the ability to "surveil a target wherever the call [or other communication involving that target] comes from," and that the new legislation would provide that.
In place of a court's approval -- which intelligence officials worried might come too slowly -- the NSA would institute a system of internal bureaucratic controls.
A senior intelligence official said that in cases in which an overseas target is communicating with people in the United States not relevant to an investigation, the names of those people would be "minimized" in, or stripped from, the transcript before it is disseminated. "You won't see data mining in there," the official said. "You won't see vast drift-net surveillance of Americans. . . . What we do not do is target people in the United States without a warrant."
Rep. Silvestre Reyes (D-Tex.), chairman of the House intelligence committee, said that Democrats will introduce legislation on surveillance in the fall and will conduct oversight on the administration's surveillance program.
A narrower Democratic alternative, which Democrats said they crafted partly in response to McConnell's concerns, won majority support but nonetheless failed because it did not collect the necessary two-thirds vote Friday night in the House. It failed after an emotional debate in which Republicans charged Democrats with being soft on terrorism and House Speaker Nancy Pelosi (D-Calif.) accused Republicans of not caring "about the truth."
Under the administration's version of the bill, the director of national intelligence and the attorney general could authorize the surveillance of all communications involving foreign targets. Oversight by the Foreign Intelligence Surveillance Court, composed of federal judges whose deliberations are secret, would be limited to examining whether the government's guidelines for targeting overseas suspects are appropriate. The court would not authorize the surveillance.
The bill's six-month sunset clause did not assuage some critics.
"I'm not comfortable suspending the Constitution even temporarily," said Rep. Rush D. Holt (D-N.J.), a member of the House intelligence committee. "The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security."