Congress Works To Give NSA Some Leeway on FISA Taps

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The New York Sun

WASHINGTON — Congress is scrambling to give the National Security Agency and the Justice Department special temporary authorities to intercept the telephone calls and e-mails of suspected terrorists overseas without court warrants.

The director of National Intelligence, Admiral Mike McConnell, requested the authorities from Congress on Friday, urging them to pass a short-term fix that he described as a “significantly narrowed proposal focused on the current, urgent need of the intelligence community to provide warning.” The “urgent need” he referred to is believed to be a Qaeda plot to be orchestrated on American soil; Admiral McConnell recently told Congress that he believes sleeper cells are either here or on their way to America. Neither Admiral McConnell nor the NSA has said they know the specific plot or plotters, and the request to intercept and listen to phone calls and read e-mails from overseas without a court warrant, even if the recipient is an American citizen, is thought to stem from that lack of knowledge.

Such warrantless surveillance, which bypasses the courts established by the Foreign Intelligence Surveillance Act in 1978, has been a source of contention in Congress since the issue was first raised in 2005. Most of the Democratic majorities in both houses of Congress are opposed to such surveillance, and so is the American Civil Liberties Union.

“I think they want to monitor all foreign to U.S. e-mails and phone calls without limitation and without distinguishing whether someone has any relation to terror or not. You boil it down, that is it,” a senior legislative counsel at the ACLU, Tim Sparapani, said in an interview yesterday.

The legislative proposal promoted by Admiral McConnell would carve out an exemption from having to seek a FISA court warrant to spy on Americans or people living in America so long as the surveillance on American soil is part of an effort to collect intelligence about someone reasonably believed to be living outside America.

However, the civil liberties watchdog group raises concerns that this kind of “reverse targeting,” or the practice of developing suspects in America from foreign targets, could leave the door open to the kind of widespread warrantless surveillance disclosed by the New York Times at the end of 2005, a secret program that Democrats and many Republicans have since attempted to curtail.

Politically, it appears that Democrats will give the NSA the temporary fix. The Senate majority leader, Harry Reid of Nevada, yesterday said, “We’re really doing our very best to work with the White House on this,” adding that the chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, and the chairman of the Senate Select Committee on Intelligence, Jay Rockefeller of West Virginia, were almost done with compromise language on the proposal.

The remaining sticking points include whether or not Attorney General Gonzales, who is under fire from both houses of Congress in part because of credibility concerns over committee testimony about the warrantless wiretapping program, will have the authority to approve the surveillance in lieu of a FISA court, and whether or not the telephone companies who had cooperated with the NSA on warrantless wiretaps will get retroactive amnesty.

Mr. Sparapani said he fears Democrats will be making an accommodation they will regret. “There have been numerous Democrats who regretted their vote in haste to pass the original Patriot Act. Many may make the same mistake again,” he said.


The New York Sun

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