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Dangerous Logjam on Surveillance

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By David Ignatius
Sunday, September 30, 2007

When a nation can't solve the problems that concern its citizens, it's in trouble. And that's where America now finds itself on nearly every big issue -- from immigration to Iraq to health care to anti-terrorism policies.

Let us focus on the last of these logjams -- over the legal rules for conducting surveillance against terrorists. There isn't a more urgent priority for the country: We face an adversary that would kill hundreds of thousands of Americans if it could. But in a polarized Washington, crafting a solid compromise that has long-term bipartisan support has so far proved impossible.

People who try to occupy a middle ground in these debates find that it doesn't exist. That reality confounded Gen. David Petraeus this month. He thought that as a professional military officer, he could serve both the administration and the Democratic Congress. Guess what? It didn't work. Democrats saw Petraeus as a representative of the Bush White House, rather than of the nation.

Now the same meat grinder is devouring Mike McConnell, the director of national intelligence. He's a career military intelligence officer who ran the National Security Agency under President Bill Clinton. As near as I can tell, the only ax he has to grind is catching terrorists. But in the vortex of Washington politics, he has become a partisan figure. An article last week in The Hill newspaper, headlined "Democrats question credibility, consistency of DNI McConnell," itemized his misstatements and supposed flip-flops as if he were running for office.

What's weird is that the actual points of disagreement between the two sides about surveillance rules are, at this point, fairly narrow. McConnell seemed close to brokering a compromise in August, but the White House refused to allow him to sign off on the deal he had negotiated. The Bush strategy, now as ever, is to tar the Democrats as weak on terrorism. That doesn't exactly encourage bipartisanship.

A little background may help explain this murky mess. Last year, after the revelation that the Bush administration had been conducting warrantless wiretaps, there was a broad consensus that the NSA's surveillance efforts should be brought within the legal framework of the 1978 Foreign Intelligence Surveillance Act (FISA). And in January, with a new Democratic Congress sharpening its arrows, the administration did just that. It submitted its "Terrorist Surveillance Program" to the FISA court. The heart of that program was tapping communications links that pass through the United States to monitor messages between foreigners. A first FISA judge blessed the program, but a second judge had problems.

At that point, the Bush administration decided to seek new legislation formally authorizing the program, and the horse-trading began. House Speaker Nancy Pelosi led a team of Democrats bargaining with McConnell. The administration had two basic demands -- that Congress approve the existing practice of using U.S. communications hubs to collect intelligence about foreigners, and that Congress compel telecommunications companies to turn over records so they wouldn't face lawsuits for aiding the government.

The Democrats agreed to these requests on Aug. 2. They also accepted three other eleventh-hour demands from McConnell, including authority to extend the anti-terrorist surveillance rules to wider foreign intelligence tasks. Pelosi and the Democrats thought they had a deal, but that evening McConnell told them that the "other side" -- meaning the White House -- wanted more concessions. The deal collapsed, and the White House, sensing it had the upper hand, pushed through a more accommodating Senate bill that would have to be renewed in six months.

The summer negotiations left bruised feelings on both sides -- that's the definition of political negotiations in Washington these days, isn't it? McConnell fanned the flames when he told the El Paso Times that "some Americans are going to die" because of the public debate about surveillance laws. The Democrats threw back spitballs of their own.

Now McConnell and the Democrats are back in the cage. A key administration demand is retroactive immunity for telecommunications companies that agreed to help the government in what they thought was a legal program. That seems fair enough. So does the Democratic demand that the White House turn over documents that explain how these programs were created.

A healthy political system would reach a compromise to allow aggressive surveillance of our adversaries. In the asymmetric wars of the 21st century, the fact that America owns the digital communications space is one of the few advantages we have. The challenge is to put this necessary surveillance under solid legal rules. If the two sides can't get together on this one, the public should howl bloody murder.

The writer is co-host ofPostGlobal, an online discussion of international issues. His e-mail address isdavidignatius@washpost.com.


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