A temporary eavesdropping law adopted in August expires at midnight tonight
WASHINGTON -- With a government eavesdropping law about to expire, Washington is awash in accusations over who's to blame.
President Bush said Friday that "our country is in more danger of an attack" because of Congress' failure to adopt a Senate bill that would have renewed a law that made it easier for the government to spy on foreign phone calls and e-mails that pass through the United States.
That bill also would have shielded from lawsuits telecommunications companies that helped the government wiretap U.S. computer and phone lines after the Sept. 11 terrorist attacks without clearance from a secret court that was established specifically to oversee such activities. In its competing version of the legislation, the House intentionally left out that feature.
"American citizens must understand, clearly understand, that there's still a threat on the homeland. There's still an enemy which would like to do us harm," Bush said. "We've got to give our professionals the tools they need, to be able to figure out what the enemy is up to so we can stop it."
"By blocking this piece of legislation, our country is more in danger of an attack," he said.
Democrats, in turn, accused Bush of fear-mongering and misrepresenting the facts.
"This is not about protecting Americans. The president just wants to protect American telephone companies," Rep. Rahm Emanuel of Illinois, head of the House Democratic Caucus, said Friday.
Beyond the rhetoric, the central issue is what the government can and can't do come midnight tonight, when a temporary eavesdropping law adopted by Congress last August expires.
That law let the government initiate wiretaps for up to one year against a wide range of targets. It also explicitly compelled telecommunications companies to comply with the orders, and protected them from civil lawsuits that may be filed against them for doing so.
But while the wiretaps can go on after the law expires, the compliance orders and the liability protections disappear. That's because of a quirk in the way the law was written, says director of National Intelligence Mike McConnell.
"There is no longer a way to compel the private sector to help us," he said.
Democrats dispute that assertion. House Majority Leader Steny Hoyer, D-Md., said that even when the law expires, existing wiretapping orders would continue to protect telecom companies.
Regardless of who's right about that point, the government can eavesdrop after the law expires. It would simply have to go back to its old procedures, getting orders approved by the Foreign Intelligence Surveillance Court.
McConnell rejects that option. He says the process of getting court orders is cumbersome and ties intelligence agents up in red tape.
The 1978 Foreign Intelligence Surveillance Act (FISA) requires the court to approve wiretaps inside the United States, a process meant to protect U.S. citizens from potential government abuses of authority. But changes in technology since then mean most of the world's computer and phone traffic passes through the United States, much of it on fiber-optic cable. Successive court cases say court orders are needed to listen in on any of them, McConnell said.
To get a court order, intelligence agents have to prove they have "probable cause" to believe a target is a foreign agent or terrorist before being allowed to tap a line inside the United States, even if the communication originates and ends in a foreign country.
It is difficult for intelligence agents piecing together shreds of information to get enough to merit probable cause, McConnell said. By the time they can amass enough information to do that, the phone number they wanted to track might already be obsolete, he said.
"More than likely we would miss the very information we need to prevent some horrendous act from taking place in the United States," he said.
The FISA law does make provisions for emergencies -- instances where there is no time to fill out the paperwork. Within a few days, though, the paperwork must be completed and probable cause must be proved to get an order approved.
House Democrats had sought to extend the current law temporarily to buy time to work out a longer-term compromise. The White House objected, and the attempt failed as Republicans were joined by conservative Democrats to defeat the move. McConnell acknowledged that the administration's opposition was intended to pressure Congress to do what Bush wants.
McConnell says an extension would fail to address a central problem: delaying legal immunity for companies that help in the warrantless wiretapping program could lead phone companies to challenge wiretapping orders in court as a way to insulate themselves from future lawsuits.
Already, he says the roughly 40 lawsuits filed against telecom companies nationwide have chilled the private sector's willingness to help the intelligence agencies in ways unrelated to electronic surveillance. Exactly how is classified, and he won't elaborate.
"I'm talking about the things they've done to help us track terrorists," said McConnell. "They did lawful things at the request of the government under the conditions they've done it for 50 years."
But that help has waned over the last two years, he said. "Your country is at risk if we can't get the private sector to help us, and that is atrophying all the time," he said.
Lawmakers left town Thursday for a 12-day recess but both sides are working behind the scenes. Bush and Vice President Dick Cheney met with Republican congressional leaders in the Oval Office to discuss the impasse with the Democratic-led House. House and Senate Democratic leaders met in Hoyer's office to hammer out plans for a conference in which Republicans will be asked to join, Hoyer said. Republicans say they won't participate.