Surveillance Law Set to Expire Today

By Jonathan Weisman and Dan Eggen
Washington Post Staff Writers
Saturday, February 16, 2008

A federal law granting President Bush extensive powers to monitor the communications of foreign terrorism suspects without a court warrant expires today, the culmination of an unusual political game of chicken in which neither side gave way before leaving Washington.

Bush left the country for Africa yesterday after declaring that "our country is more in danger of an attack." With Congress beginning a week-long recess, House Speaker Nancy Pelosi (D-Calif.) practically called Bush a liar, saying he is "misrepresenting the facts on our nation's electronic surveillance capabilities."

Both sides were left weighing whether the lapse of a temporary, technical surveillance law will have political ramifications in November. "This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction," warned House Minority Leader John A. Boehner (R-Ohio).

But the dominant mood on the House Democratic side appeared to be a "take no more guff" attitude, combined with confidence that the Bush administration's credibility is at a low ebb. Democrats accused administration officials of putting the interests of private phone companies above national security.

At issue is a law passed in August that expanded warrantless surveillance powers. Bush wants Congress to make the law permanent, while adding legal immunity for telecommunications companies that were sued for invasion of privacy after helping U.S. intelligence agencies conduct warrantless surveillance under contested authorities. The Senate approved a White House-backed bill, but the House balked.

After the law's expiration, the government will retain substantial surveillance capability, and classified orders allowing the monitoring of international telephone calls, e-mail and other communications under the law are valid for a year, so they will not expire before August.

"There is no risk the program will go dark," said Rep. Sylvestre Reyes (D-Tex.), chairman of the House Permanent Select Committee on Intelligence.

Officials made clearer yesterday that the real dispute is over the immunization of phone companies from past actions. Mike McConnell, director of national intelligence, told National Public Radio yesterday: "It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time frame. However, that's not the real issue. The issue is liability protection for the private sector. We can't do this mission without their help."

"The companies have been waiting for six months for retroactive liability" protection, Senate Minority Leader Mitch McConnell (R-Ky.) said after a White House meeting with Bush. "They are under pressure from their directors, pressure from their shareholders, and you're jeopardizing the entire existence of the company by continuing to do this."

Sen. Edward M. Kennedy (D-Mass.) fired back in unusually harsh language. He said McConnell, in arguing that U.S. intelligence capabilities were being degraded, was being "dishonest and self-serving" and added: "It's nothing more than a scare tactic designed to avoid legal and political accountability and keep Americans in the dark about the administration's massive lawbreaking."

Armed with their talking points, the two parties battled all day yesterday, with Republicans promising to exact a political price and Democratic leaders saying they have nothing to fear. That seemed to be a shift from Wednesday, when 34 House Democrats teamed with a united GOP to vote against simply extending the surveillance law by 21 days -- a move that Republicans said was proof that Democrats fear the issue.

Among those 34 Democrats were numerous freshmen in districts that lean Republican. Five-term Rep. Tom Udall (D-N.M.), who is running for the Senate this year, also bucked his leadership on the vote.

In interviews yesterday, many of those "no" voters showed how complex the issue is. Udall, for instance, said his vote was not due to fear of Republican attacks but because he could not support extending for even three more weeks a warrantless-surveillance bill that he said gave the president the authority to trample the Constitution.

Rep. Tim Mahoney (D-Fla.), one of the most endangered House freshmen, said he agreed. "I've been rhetoriced to death by those guys, including the president," said Mahoney, who won his conservative district after scandal-scarred Republican Mark Foley resigned. "I think the American people are on to this guy."

Rep. Tim Walz (D-Minn.), another swing-district freshman, wanted to force the House and Senate to stay in Washington and compromise, but he said he is firmly against the Senate's offer of retroactive immunity. "Coming from a military background, I sure don't downplay that there are threats out there," he said, "but the president's demagoguery on this is the equivalent of the boy crying wolf."

Republicans saw it differently. The Republican National Committee yesterday blasted Sens. Barack Obama (D-Ill.) and Hillary Rodham Clinton (D-N.Y.) for letting what it called a "critical" surveillance law lapse. "They have handed us a political issue on a golden platter," said one House Republican leadership aide. "And we will use it against them."

When Bush signed the temporary law Aug. 5, the White House portrayed it primarily as a carefully tailored update to the nation's basic surveillance law, passed in 1978. As one White House fact sheet put it: "This Act Is A Temporary, Narrowly Focused Statute To Deal With The Most Immediate Needs Of The Intelligence Community To Protect The Country."

Administration officials continued to emphasize the limited nature of the law in subsequent weeks, in part because liberal Democrats and civil-liberties groups started raising alarms about its potential reach. More recently, however, the dispute has become more symbolic, and Bush and his aides have portrayed the law as the cornerstone of the nation's terrorist-surveillance program.

© 2008 The Washington Post Company