[Infowarrior] - Concern Over Wider Spying Under New Law

[Richard Forno]

August 19, 2007
Concern Over Wider Spying Under New Law
By JAMES RISEN and ERIC LICHTBLAU
http://www.nytimes.com/2007/08/19/washington/19fisa.html?ei=5065&en=d48269ca
162f2f10&ex=1188100800&partner=MYWAY&pagewanted=print

WASHINGTON, Aug. 18 ‹ Broad new surveillance powers approved by Congress
this month could allow the Bush administration to conduct spy operations
that go well beyond wiretapping to include ‹ without court approval ‹
certain types of physical searches of American citizens and the collection
of their business records, Democratic Congressional officials and other
experts said.

Administration officials acknowledged that they had heard such concerns from
Democrats in Congress recently, and that there was a continuing debate over
the meaning of the legislative language. But they said the Democrats were
simply raising theoretical questions based on a harsh interpretation of the
legislation.

They also emphasized that there would be strict rules in place to minimize
the extent to which Americans would be caught up in the surveillance.

The dispute illustrates how lawmakers, in a frenetic, end-of-session
scramble, passed legislation they may not have fully understood and may have
given the administration more surveillance powers than it sought. It also
offers a case study in how changing a few words in a complex piece of
legislation has the potential to fundamentally alter the Foreign
Intelligence Surveillance Act, a landmark national security law. Two weeks
after the legislation was signed into law, there is still heated debate over
how much power Congress gave to the president.

³This may give the administration even more authority than people thought,²
said David Kris, a former senior Justice Department lawyer in the Bush and
Clinton administrations and a co-author of ³National Security Investigation
and Prosecutions,² a new book on surveillance law.

Several legal experts said that by redefining the meaning of ³electronic
surveillance,² the new law narrows the types of communications covered in
the Foreign Intelligence Surveillance Act, known as FISA, by indirectly
giving the government the power to use intelligence collection methods far
beyond wiretapping that previously required court approval if conducted
inside the United States.

These new powers include the collection of business records, physical
searches and so-called ³trap and trace² operations, analyzing specific
calling patterns.

For instance, the legislation would allow the government, under certain
circumstances, to demand the business records of an American in Chicago
without a warrant if it asserts that the search concerns its surveillance of
a person who is in Paris, experts said.

It is possible that some of the changes were the unintended consequences of
the rushed legislative process just before this month¹s Congressional
recess, rather than a purposeful effort by the administration to enhance its
ability to spy on Americans.

³We did not cover ourselves in glory,² said one Democratic aide, referring
to how the bill was compiled.

But a senior intelligence official who has been involved in the discussions
on behalf of the administration said that the legislation was seen solely as
a way to speed access to the communications of foreign targets, not to sweep
up the communications of Americans by claiming to focus on foreigners.

³I don¹t think it¹s a fair reading,² the official said. ³The intent here was
pure: if you¹re targeting someone outside the country, the fact that you¹re
doing the collection inside the country, that shouldn¹t matter.² Democratic
leaders have said they plan to push for a revision of the legislation as
soon as September. ³It was a legislative over-reach, limited in time,² said
one Congressional Democratic aide. ³But Democrats feel like they can
regroup.²

Some civil rights advocates said they suspected that the administration made
the language of the bill intentionally vague to allow it even broader
discretion over wiretapping decisions. Whether intentional or not, the end
result ‹ according to top Democratic aides and other experts on national
security law ‹ is that the legislation may grant the government the right to
collect a range of information on American citizens inside the United States
without warrants, as long as the administration asserts that the spying
concerns the monitoring of a person believed to be overseas.

In effect, they say, the legislation significantly relaxes the restrictions
on how the government can conduct spying operations aimed at foreigners at
the same time that it allows authorities to sweep up information about
Americans.

These new powers are considered overly broad and troubling by some
Congressional Democrats who raised their concerns with administration
officials in private meetings this week.

³This shows why it is so risky to change the law by changing the definition²
of something as basic as the meaning of electronic surveillance, said
Suzanne Spaulding, a former Congressional staff member who is now a national
security legal expert. ³You end up with a broad range of consequences that
you might not realize.²

The senior intelligence official acknowledged that Congressional staff
members had raised concerns about the law in the meetings this week, and
that ambiguities in the bill¹s wording may have led to some confusion. ³I¹m
sure there will be discussions about how and whether it should be fixed,²
the official said.

Vanee Vines, a spokeswoman for the office of the director of national
intelligence, said the concerns raised by Congressional officials about the
wide scope of the new legislation were ³speculative.² But she declined to
discuss specific aspects of how the legislation would be enacted. The
legislation gives the director of national intelligence, Mike McConnell, and
Attorney General Alberto R. Gonzales broad discretion in enacting the new
procedures and approving the way surveillance is conducted.

The new legislation amends FISA, but is set to expire in six months. Bush
administration officials said the legislation was critical to fill an
³intelligence gap² that had left the United States vulnerable to attack.

The legislation ³restores FISA to its original and appropriate focus ‹
protecting the privacy of Americans,² said Brian Roehrkasse, Justice
Department spokesman. ³The act makes clear that we do not need a court order
to target for foreign intelligence collection persons located outside the
United States, but it also retains FISA¹s fundamental requirement of court
orders when the target is in the United States.²

The measure, which President Bush signed into law on Aug. 5, was written and
pushed through both the House and Senate so quickly that few in Congress had
time to absorb its full impact, some Congressional aides say.

Though many Democratic leaders opposed the final version of the legislation,
they did not work forcefully to block its passage, largely out of fear that
they would be criticized by President Bush and Republican leaders during the
August recess as being soft on terrorism.

Yet Bush administration officials have already signaled that, in their view,
the president retains his constitutional authority to do whatever it takes
to protect the country, regardless of any action Congress takes. At a tense
meeting last week with lawyers from a range of private groups active in the
wiretapping issue, senior Justice Department officials refused to commit the
administration to adhering to the limits laid out in the new legislation and
left open the possibility that the president could once again use what they
have said in other instances is his constitutional authority to act outside
the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan
administration, along with other critics of the legislation, pressed Justice
Department officials repeatedly for an assurance that the administration
considered itself bound by the restrictions imposed by Congress. The Justice
Department, led by Ken Wainstein, the assistant attorney general for
national security, refused to do so, according to three participants in the
meeting. That stance angered Mr. Fein and others. It sent the message, Mr.
Fein said in an interview, that the new legislation, though it is already
broadly worded, ³is just advisory. The president can still do whatever he
wants to do. They have not changed their position that the president¹s
Article II powers trump any ability by Congress to regulate the collection
of foreign intelligence.²

Brian Walsh, a senior legal fellow at the conservative Heritage Foundation
who attended the same private meeting with Justice Department officials,
acknowledged that the meeting ‹ intended by the administration to solicit
recommendations on the wiretapping legislation ‹ became quite heated at
times. But he said he thought the administration¹s stance on the president¹s
commander-in-chief powers was ³a wise course.²

³They were careful not to concede any authority that they believe they have
under Article II,² Mr. Walsh said. ³If they think they have the
constitutional authority, it wouldn¹t make sense to commit to not using it.²

Asked whether the administration considered the new legislation legally
binding, Ms. Vines, the national intelligence office spokeswoman, said:
³We¹re going to follow the law and carry it out as it¹s been passed.²

Mr. Bush issued a so-called signing statement about the legislation when he
signed it into law, but the statement did not assert his presidential
authority to override the legislative limits.

At the Justice Department session, critics of the legislation also
complained to administration officials about the diminished role of the FISA
court, which is limited to determining whether the procedures set up by the
executive administration for intercepting foreign intelligence are ³clearly
erroneous² or not.

That limitation sets a high bar to set off any court intervention, argued
Marc Rotenberg, executive director of the Electronic Privacy Information
Center, who also attended the Justice Department meeting.

³You¹ve turned the court into a spectator,² Mr. Rotenberg said.