How the Fight for Vast New Spying Powers Was Won
Sunday, August 12, 2007
For three days, Mike McConnell, the director of national intelligence, had haggled with congressional leaders over amendments to a federal surveillance law, but now he was putting his foot down. "This is the issue," said the plain-spoken retired vice admiral and Vietnam veteran, "that makes my blood pressure rise."
McConnell viscerally objected to a Democratic proposal to limit warrantless surveillance of foreigners' communications with Americans to instances in which one party was a terrorism suspect. McConnell wanted no such limits. "All foreign intelligence" targets in touch with Americans on any topic of interest should be fair game for U.S. spying, he said, according to two participants in the Aug. 2 conversation.
McConnell won the fight, extracting a key concession despite the misgivings of Democratic negotiators. Shortly after that exchange, the Bush administration leveraged Democratic acquiescence into a broader victory: congressional approval of a Republican bill that would expand surveillance powers far beyond what Democratic leaders had initially been willing to accept.
Yet both sides acknowledge that the administration's resurrection of virtually unchecked Cold War-era power to surveil foreign targets without warrants may be only temporary. The law expires in 180 days, and Democrats, smarting from their political defeat, have promised to alter it with new legislation to be prepared next month, when Congress returns from its recess.
"The real train wreck happens in September," said a senior administration official involved in the negotiations with Congress. He was referring to House Speaker Nancy Pelosi's declaration hours after the bill's passage that portions are "unacceptable" and that the public will not want to wait six months "before corrective action is taken."
Until September -- and possibly for much longer -- the new law will enable the high-tech collection of foreign communications without judicial scrutiny on a vastly larger scale than previously possible, allowing billions of phone calls and e-mails inside as well as outside the United States to be routinely screened for possible links to terrorism and other security threats.
Congressional, administration and intelligence officials last week described the events leading up to the approval of this surveillance, including a remarkable series of confrontations that ended with McConnell and the White House outmaneuvering the Democratic-controlled Congress, partly by capitalizing on fresh reports of a growing terrorism threat.
"We had a forcing function," a senior administration official said, referring to the intelligence community's public report last month that said al-Qaeda poses a growing threat to the United States and to lawmakers' desire to leave town in August. "The situation was key to making it work," the official said, adding that the report's conclusions were "fortuitous" rather than engineered.
The encounters left mistrust on both sides that will complicate the next round of debate. "They said, 'Trust us, we'll fix it,' " the senior administration source said of the Democrats' proposals. "But every time the bill came back, it had language [the administration] couldn't live with."
What McConnell wanted most from Congress was to be able to intercept, without a warrant, purely foreign-to-foreign communications that pass through fiber-optic cables and switching stations on U.S. soil. That provision was meant to restore a U.S. capability that existed three decades ago, when a 1978 law allowed warrantless surveillance of foreign calls that were overwhelmingly relayed wirelessly.
Since then, advances in technology have caused 90 percent of global communications to pass through wires -- mostly optic fibers capable of carrying 6,000 calls in a strand. That development has been a boon to the National Security Agency, which has worked hard to monitor the traffic with U.S.-based taps and concluded it was doing so legally.
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.