How the Fight for Vast New Spying Powers Was Won

By Joby Warrick and Walter Pincus
Washington Post Staff Writers
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.

"All of a sudden, the world flipped upside down," said a senior administration official familiar with the rulings. The official declined to be identified by name, citing the confidentiality of court decisions involving the Foreign Intelligence Surveillance Act.

The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil, a task so time-consuming that a backlog developed. "We shoved a lot of warrants at the court" but still could not keep up, the official said. "We needed thousands of warrants, but the most we could do was hundreds." The official depicted it as an especially "big problem" by the end of May, in which the NSA was "losing capability."

McConnell even appealed directly to the FISA court, meeting with judges to describe the impact the decisions were having. The judges were sympathetic but said they believed that the law was clear. "They said, 'We don't make legislation -- we interpret the law,' " the senior administration official said.

The rulings -- which were not disclosed publicly until the congressional debate this month -- represented an unusual rift between the court and the U.S. intelligence community. They led top intelligence officials to conclude, a senior official said, that "you can't tell what this court is going to do" and helped provoke the White House to insist that Congress essentially strip the court of any jurisdiction over U.S. surveillance of communications between foreigners.

The opening shot in the administration's campaign was a bill sent to Capitol Hill on April 27; officials said it had been in the works since a public controversy erupted in late 2005 over the administration's "Terrorist Surveillance Program" involving warrantless surveillance of communications between Americans and terrorism suspects overseas.

The administration's 66-page measure was put together by an interagency group of lawyers headed by Benjamin A. Powell, the general counsel for the director of national intelligence (DNI). Powell, who had once worked in electronic surveillance programs for the FBI and the Air Force, joined the office of the DNI last year after helping shape the administration's intelligence policy as a White House associate counsel and special adviser to the president.

On May 1, McConnell appeared before the Senate Select Committee on Intelligence to press for action on amendments to the Foreign Intelligence Surveillance Act. The 30-year-old statute was badly behind the times, failing to take into account modern communication methods, he said. "We are actually missing a significant portion of what we should be getting," McConnell told the senators.

McConnell and other officials ultimately briefed about 250 lawmakers on the issue and encountered little resistance to their proposed repair for surveillance involving purely foreign communications. Sen. John D. Rockefeller IV (D-W.Va.), the intelligence committee chairman, who had received some of the first detailed briefings on the surveillance program, called Vice President Cheney in late June to explore options.

"I want to move forward," he said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.

The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts.

While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.

A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act.

"Everybody who heard him speak recognized the absolute, compelling necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the intelligence panel, said later of the closed session.

Democrats agreed. "At that time, the discussion changed to 'What can we do to close the gap during the August recess?' " said a senior Democratic aide who declined to be identified because the meetings were classified. As delivered by McConnell, the warnings were seen as fully credible. "He's pushing this because he thinks we're in a high-threat environment," the senior aide said.

Throughout this period, Republican lawmakers promoted the administration's version of the bill as a powerful response to the terrorism threat. Rep. Peter Hoekstra (R-Mich.), a former chairman of the House intelligence panel, told colleagues, for example, that "this is about protecting the homeland, and it is about protecting our troops in Iraq, Afghanistan and Pakistan."

But McConnell consistently sought authority for warrantless surveillance not only of terrorist suspects outside the country, but of all foreign intelligence targets. In a letter to Senate leaders on Aug. 2, he said no such limitation existed when the FISA law was passed in 1978, "nor is one appropriate today. . . . The Intelligence Community must be able to gather needed intelligence information on the array of threats to our national security." A senior administration official mentioned the North Korean nuclear program as an example of a threat.

Where the matter became sticky -- and ultimately developed into tense exchanges between the Democrats and McConnell, with each side later accusing the other of misrepresenting their conversations -- was on the question of how to deal with surveillance of communications between persons outside the country and persons inside the country, including both U.S. citizens and foreigners.

Democrats were reluctant to give the NSA blanket permission to capture such data without a warrant unless independent oversight was provided, either by the court or by the Justice Department's inspector general. They also worried that providing warrantless authority to spy on targets other than foreign terrorism suspects would lead to potentially abusive monitoring of Americans innocently in contact with foreign targets.

Other provisions in the White House-backed bill added to the Democrats' discomfort. For instance, a Democratic bill would have authorized warrantless surveillance "directed" at individuals reasonably believed to be outside the United States. But the administration's draft -- and the one passed into law -- permitted collecting data "concerning" people reasonably believed to be outside the country. Democrats said the difference between collection efforts "concerning" foreigners and "directed" at foreigners could be enormous, allowing intelligence officials far greater leeway.

Partly, it was a matter of Democratic mistrust of the administration, due to what Senate Majority Leader Harry M. Reid (D-Nev.) called "the administration's repeated past mismanagement of key tools in the war on terror."

On July 31, McConnell met with Democratic leaders in an unusual night session to hash over their concerns. In McConnell's bill, the attorney general's office would certify that U.S. collection methods were in line with the law, a procedure Democrats told him they did not trust. In a series of conference calls, McConnell continued to complain about a Democratic-backed provision limiting warrantless surveillance to foreign suspects tied to terrorist groups. Democrats noted that an earlier, administration-backed measure had included similar language.

"There was a lot of back-and-forth," said a congressional official familiar with the discussion. Pelosi suggested as a compromise limiting the authority to "threats to national security." But McConnell -- whose office was getting e-mails throughout the negotiations from officials at the Justice Department, the vice president's office and elsewhere in the intelligence community -- remained firm, and eventually the Democrats relented and presented a bill that they believed had met McConnell's requirements.

McConnell deemed its fine print unacceptable, however, and in the end, it was the Republican bill, a near-copy of his proposal, that passed both chambers of Congress. It drew support not only from most Republicans but also from 16 Senate Democrats and 41 House Democrats. Hours after its passage, Pelosi declared portions of the bill "unacceptable" and forecast changes in the coming months.

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