[Infowarrior] - Bush Signs Law to Widen Legal Reach for Wiretapping

[Richard Forno]

August 6, 2007
Bush Signs Law to Widen Legal Reach for Wiretapping
By JAMES RISEN
http://www.nytimes.com/2007/08/06/washington/06nsa.html?ei=5065&en=4e05f95a4
b60ac78&ex=1187064000&partner=MYWAY&pagewanted=print

WASHINGTON, Aug. 5 ‹ President Bush signed into law on Sunday legislation
that broadly expanded the government¹s authority to eavesdrop on the
international telephone calls and e-mail messages of American citizens
without warrants.

Congressional aides and others familiar with the details of the law said
that its impact went far beyond the small fixes that administration
officials had said were needed to gather information about foreign
terrorists. They said seemingly subtle changes in legislative language would
sharply alter the legal limits on the government¹s ability to monitor
millions of phone calls and e-mail messages going in and out of the United
States.

They also said that the new law for the first time provided a legal
framework for much of the surveillance without warrants that was being
conducted in secret by the National Security Agency and outside the Foreign
Intelligence Surveillance Act, the 1978 law that is supposed to regulate the
way the government can listen to the private communications of American
citizens.

³This more or less legalizes the N.S.A. program,² said Kate Martin, director
of the Center for National Security Studies in Washington, who has studied
the new legislation.

Previously, the government needed search warrants approved by a special
intelligence court to eavesdrop on telephone conversations, e-mail messages
and other electronic communications between individuals inside the United
States and people overseas, if the government conducted the surveillance
inside the United States.

Today, most international telephone conversations to and from the United
States are conducted over fiber-optic cables, and the most efficient way for
the government to eavesdrop on them is to latch on to giant
telecommunications switches located in the United States.

By changing the legal definition of what is considered ³electronic
surveillance,² the new law allows the government to eavesdrop on those
conversations without warrants ‹ latching on to those giant switches ‹ as
long as the target of the government¹s surveillance is ³reasonably believed²
to be overseas.

For example, if a person in Indianapolis calls someone in London, the
National Security Agency can eavesdrop on that conversation without a
warrant, as long as the N.S.A.¹s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the
new law went beyond fixing the foreign-to-foreign problem, potentially
allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government
greater flexibility in focusing on foreign suspects overseas, not to go
after Americans.

³It¹s foreign, that¹s the point,² Mr. Fratto said. ³What you want to make
sure is that you are getting the foreign target.²

The legislation to change the surveillance act was rushed through both the
House and Senate in the last days before the August recess began.

The White House¹s push for the change was driven in part by a
still-classified ruling earlier this year by the special intelligence court,
which said the government needed to seek court-approved warrants to monitor
those international calls going through American switches.

The new law, which is intended as a stopgap and expires in six months, also
represents a power shift in terms of the oversight and regulation of
government surveillance.

The new law gives the attorney general and the director of national
intelligence the power to approve the international surveillance, rather
than the special intelligence court. The court¹s only role will be to review
and approve the procedures used by the government in the surveillance after
it has been conducted. It will not scrutinize the cases of the individuals
being monitored.

The law also gave the administration greater power to force
telecommunications companies to cooperate with such spying operations. The
companies can now be compelled to cooperate by orders from the attorney
general and the director of national intelligence.

Democratic Congressional aides said Sunday that some telecommunications
company officials had told Congressional leaders that they were unhappy with
that provision in the bill and might challenge the new law in court. The
aides said the telecommunications companies had told lawmakers that they
would rather have a court-approved warrant ordering them to comply.

In fact, pressure from the telecommunications companies on the Bush
administration has apparently played a major hidden role in the political
battle over the surveillance issue over the past few months.

In January, the administration placed the N.S.A.¹s warrantless wiretapping
program under the Foreign Intelligence Surveillance Act, and subjected it
for the first time to the scrutiny of the FISA court.

Democratic Congressional aides said Sunday that they believed that pressure
from major telecommunications companies on the White House was a major
factor in persuading the Bush administration to do that. Those companies
were facing major lawsuits for having secretly cooperated with the
warrantless wiretapping program, and now wanted greater legal protections
before cooperating further.

But the change suddenly swamped the court with an enormous volume of search
warrant applications, leading, in turn, to the administration¹s decision to
seek the new legislation.