By Ellen Nakashima
Washington Post Staff Writer
Saturday, September 15, 2007
The Bush administration, facing withering criticism over its temporary foreign intelligence wiretap law, has launched a campaign to assure Democratic lawmakers that the law will not result in domestic surveillance without a court order, and at the same time it has indicated that it is willing to consider changes.
The effort comes as Congress prepares to tackle a broad overhaul of the government's foreign intelligence wiretap authority.
In a letter sent to Capitol Hill yesterday, Assistant Attorney General Kenneth L. Wainstein said the Protect America Act, passed in August under intense White House pressure, does not authorize physical searches of homes, domestic mail or people's personal effects and computers, and that Justice Department lawyers "do not think" it authorizes the collection of medical or library records.
He said that "to the extent that this provision could be read to authorize the collection of business records of individuals in the United States . . . we wish to make very clear that we will not use this provision to do so."
"To put it plainly," Wainstein said, "the Protect America Act does not authorize so-called domestic wiretapping without a court order, and the executive branch will not use it for that purpose."
But key Democratic lawmakers said their concerns are not allayed.
"The Bush administration admits that the Protect America Act can be read to let them collect Americans' business records," said Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee. "They simply ask us to trust them not to. Trust is not good enough -- that's why we need to have court oversight."
Rep. Silvestre Reyes (D-Tex.), chairman of the House Permanent Select Committee on Intelligence, said, "If the administration is serious, they will work with us to clear up any ambiguity when Congress revisits this authority this fall."
The scenarios posed by critics "would require a reading of the statute that is strained," Wainstein said in an interview this week. "That being said, if someone can come up with wording or language that is clear and does not have its own unintended consequences, we're very happy to take a look at it. If it works, it works, great."
And in a statement last week to the House committee, Wainstein said, "To the extent that the statute could be construed to allow acquisitions of domestic communications, we would be willing to consider alternative language."
Wainstein stressed in a phone interview, however, that "we're going to take a good, hard look at any proposed changes" to ensure they do not undermine "our authorities."
During the administration's push for the bill in August, it was Director of National Intelligence Mike McConnell, rather than embattled Attorney General Alberto R. Gonzales, who was the public face of the administration's efforts. But McConnell's credibility has taken a series of hits, partly because Democratic lawmakers said they felt he had reneged on a deal on the legislation. Now, Wainstein, who was always part of the negotiations, has taken on a higher public profile.
The administration wants Congress to make permanent the current law, which expires in six months. It also wants to broaden it to grant telecommunications carriers immunity from lawsuits alleging that they invaded Americans' privacy by assisting in the post-Sept. 11 warrantless surveillance program.
Wainstein and other senior administration officials have been consulting with lawmakers on the scope of the law, a measure that the administration said was intended to bring the Foreign Intelligence Surveillance Act of 1978 in line with advances in technology.
Because of the new technologies, intercepts targeted at individuals overseas became subject to review by a secret FISA court for the first time, the administration said. A backlog of warrant requests developed, the administration said, resulting in vast amounts of intelligence going uncollected.
In the days and weeks leading to the bill's passage, the administration pointed to intelligence reports that the United States was in a "heightened threat environment" and that al-Qaeda was regrouping in Pakistan. The law passed over Democratic alternatives that included court oversight, with Republicans warning that failure to act would leave the country vulnerable to another terrorist attack.
Democrats feared being portrayed as weak on national security, and since its passage they have acknowledged that they did not sufficiently vet the bill for possible unintended consequences. House Speaker Nancy Pelosi (D-Calif.) has ordered up legislation to fix "the many deficiencies" in the law.
At seminars and hearings and on blogs in recent days, academics and civil liberties advocates have argued that the legislation authorizes a host of surveillance activities as long as they "concern" a person abroad.
The "person" could be a group or an individual and need not be a terrorist, the experts said, and the information collected could be mail, stored e-mail or phone records.
"In other words, this is not limited to phone calls of an al-Qaeda suspect into the United States," said Suzanne Spaulding, a national security consultant and former CIA assistant general counsel.
The Senate sponsor of the administration's bill, Christopher S. Bond (R-Mo.), this week expressed a willingness to clarify the law's scope. "We also need to talk about making the protection for all Americans, for U.S. persons, clearer," he said at a Georgetown Law Center seminar. "If we had a little time to work on it, we could make it clearer, that it applies only to communications."
Wainstein said that if the government were to do any of the things that critics say are possible, Congress would know because the administration is conducting monthly audits of the law's implementation for the key committees.