[Infowarrior] - Administration Pulls Back on Surveillance Agreement

[Richard Forno]

Administration Pulls Back on Surveillance Agreement
By JAMES RISEN
Published: May 2, 2007

http://www.nytimes.com/2007/05/02/washington/02intel.html

WASHINGTON, May 1 ‹ Senior Bush administration officials told Congress on
Tuesday that they could not pledge that the administration would continue to
seek warrants from a secret court for a domestic wiretapping program, as it
agreed to do in January.

Rather, they argued that the president had the constitutional authority to
decide for himself whether to conduct surveillance without warrants.

As a result of the January agreement, the administration said that the
National Security Agency¹s domestic spying program has been brought under
the legal structure laid out in the Foreign Intelligence Surveillance Act,
which requires court-approved warrants for the wiretapping of American
citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell, the new
director of national intelligence, said they believed that the president
still had the authority under Article II of the Constitution to once again
order the N.S.A. to conduct surveillance inside the country without
warrants.

During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell
was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could
promise that the administration would no longer sidestep the court when
seeking warrants.

³Sir, the president¹s authority under Article II is in the Constitution,²
Mr. McConnell said. ³So if the president chose to exercise Article II
authority, that would be the president¹s call.²

The administration had earlier argued that both the president¹s inherent
executive powers under Article II of the Constitution, as well as the
September 2001 Congressional authorization to use military force against Al
Qaeda, provided him with the power to conduct surveillance without warrants.

Mr. McConnell emphasized that all domestic electronic surveillance was now
being conducted with court-approved warrants, and said that there were no
plans ³that we are formulating or thinking about currently² to resume
domestic wiretapping without warrants.

³But I¹d just highlight,² he said, ³Article II is Article II, so in a
different circumstance, I can¹t speak for the president what he might
decide.²

The exchange came as the administration is seeking new legislation to update
the surveillance act to expand the government¹s surveillance powers, in part
to deal with vast changes in communications technology since 1978, when the
measure was enacted.

The White House says that the outmoded rules embedded in the law mean that
the government cannot eavesdrop on some telephone calls, e-mail and other
communications that do not involve Americans or impinge on the privacy
rights of people inside the United States.

While administration officials, citing national security concerns, have
declined to discuss publicly what communications gaps they wish to plug,
their proposed legislation seems designed to single out so-called ³transit
traffic,² purely international telephone calls and e-mail that go from one
foreign country to another, but happen to be digitally routed through the
United States telecommunications system.

The administration¹s proposal would also provide legal immunity for
telecommunications companies that cooperated with the National Security
Agency¹s surveillance program without warrants before it was brought under
the surveillance act in January. It would also provide legal protections for
government workers who took part in the N.S.A. program.

Several Democratic lawmakers expressed frustration on Tuesday that the
administration had not provided documents related to the National Security
Agency program, which the White House called the Terrorist Surveillance
Program. They suggested that they would be reluctant to agree to a change in
the surveillance law without more information from the White House.

³To this day, we have never been provided the presidential authorization
that cleared that program to go or the attorney general-Department of
Justice opinions that declared it to be lawful,² said Senator Sheldon
Whitehouse, Democrat of Rhode Island. ³Where¹s the transparency as to the
presidential authorizations for this closed program? That¹s a pretty big
Œwe¹re not going to tell you¹ in this new atmosphere of trust we¹re trying
to build.²