[Infowarrior] - Democratic Concessions Are Expected on Wiretapping

[Richard Forno]

October 8, 2007
Democratic Concessions Are Expected on Wiretapping
By ERIC LICHTBLAU and CARL HULSE
http://www.nytimes.com/2007/10/08/washington/09cnd-nsa.html?_r=1&hp=&oref=sl
ogin&pagewanted=print

WASHINGTON, Oct. 8 ‹ Two months after vowing to roll back broad new
wiretapping powers won by the Bush administration, Congressional Democrats
appear ready to make concessions that could extend some of the key powers
granted to the National Security Agency.

Bush administration officials say they are confident they will win approval
of the broadened wiretapping authority that they secured temporarily in
August as Congress rushed toward recess, and some Democratic officials admit
that they may not come up with the votes to rein in the administration.

As the debate over the N.S.A.¹s wiretapping powers begins anew this week,
the emerging legislation reflects the political reality confronting the
Democrats. While they are willing to oppose the White House on the conduct
of the war in Iraq, they remain nervous that they will be labeled as soft on
terrorism if they insist on strict curbs on intelligence gathering.

A Democratic bill to be proposed Tuesday in the House would maintain for
several years the type of broad, blanket authority for N.S.A. wiretapping
that the administration secured in August for just six months. But in an
acknowledgment of civil liberties concerns, the measure would also require a
more active role by the special foreign intelligence court that oversees the
N.S.A.¹s interception of foreign-based communications.

A competing proposal in the Senate, still being drafted, may be even closer
in line with the administration¹s demands, with the possibility of including
retroactive immunity for telecommunications companies that took part in the
N.S.A.¹s once-secret program to wiretap without court warrants.

No one is willing to predict with certainty how the issue will play out. But
some Congressional officials and others monitoring the debate over the
legislation said the final result may not be much different than it was two
months ago, despite Democrats¹ insistence that they would not let stand the
August extension of the N.S.A.¹s powers.

³Many members continue to fear that if they don¹t support whatever the
president asks for, they¹ll be perceived as soft on terrorism,² said William
Banks, a professor specializing in terrorism and national security law at
Syracuse University who has written extensively on federal wiretapping law.

The August bill, known as the Protect America Act, was approved by Congress
in the final hours before its summer recess after heated warnings from the
Bush administration that legal loopholes in wiretapping coverage had left
the country vulnerable to another terrorist attack. The legislation
significantly reduced the role of the foreign intelligence court and
broadened the N.S.A.¹s ability to listen in on foreign-based communications
without a court warrant.

³We want the statute made permanent,² Dean Boyd, a spokesman for the Justice
Department, said today. ³We view this as a healthy debate. We also view it
as an opportunity to inform Congress and the public that we can use these
authorities responsibly. We¹re going to go forward and look at any proposals
that come forth, but we¹ll look at them very carefully to make sure they
don¹t have any consequences that hamper our abilities to protect the
country.²

House Democrats overwhelmingly opposed the interim legislation in August and
believed at the time they had been forced into a corner by the Bush
administration.

As Congress takes up the new legislation, a senior Democratic aide said
House leaders are working hard to make sure the administration does not
succeed in pushing through a bill that would make permanent all the powers
it secured in August for the N.S.A. ³That¹s what we¹re trying to avoid,² the
aide said. ³We have that concern too.²

The bill to be proposed Tuesday by the Democratic leaders of the House
Intelligence and Judiciary Committees would impose more controls over the
N.S.A.¹s powers, including quarterly audits by the Justice Department¹s
inspector general. It would also give the foreign intelligence court a role
in approving, in advance, ³basket² or ³umbrella² warrants for bundles of
overseas communications, according to a Congressional official.

³We are giving the N.S.A. what it legitimately needs for national security
but with far more limitations and protections than are in the Protect
America Act,² said Brendan Daly, a spokesman for Speaker Nancy Pelosi,
Democrat of California.

Perhaps most important in the eyes of Democratic supporters, the House bill
would not give retroactive immunity to the telecommunications companies that
took part in the N.S.A.¹s domestic eavesdropping program ‹ a proposal that
had been a top priority of the Bush administration. The August legislation
granted the companies immunity for future acts, but not past deeds.

A number of private groups are trying to prove in federal court that the
telecommunications companies violated the law by taking part in the program.
A former senior Justice Department lawyer, Jack Goldsmith, seemed to bolster
their case last week when he told Congress that the program was a ³legal
mess² and strongly suggested it was illegal.

In the Senate, the Democratic chairman of the Intelligence Committee, John
D. Rockefeller IV of West Virginia, is working with his Republican
counterpart, Christopher S. Bond of Missouri, who was one of the main
proponents of the August plan, to come up with a compromise wiretapping
proposal. Wendy Morigi, a spokeswoman for Mr. Rockefeller, said that
retroactive immunity for the telecommunications companies is ³under
discussion,² but that no final proposal had been developed.

The immunity issue may prove to be the key sticking point between whatever
proposals are ultimately passed by the House and the Senate. Representative
Jerrold Nadler, a New York Democrat who was among the harshest critics of
the legislation passed in August, said he would vigorously oppose any effort
to grant retroactive legal protection to telecommunications companies.
³There is heavy pressure on the immunity and we should not cave an inch on
that,² he said in an interview.

Mr. Nadler said he was worried that the Senate would give too much ground to
the administration in its proposal, but he said he was satisfied with the
legislation to be proposed Tuesday in the House.

³It is not perfect, but it is a good bill,² he said. ³It makes huge
improvements in the current law. In some respects it is better than the old
FISA law,² referring to the Foreign Intelligence Surveillance Act.

Civil liberties advocates and others who met with House officials today
about the proposed bill agreed that it was an improvement over the August
plan, but they were not quite as charitable in their overall assessment.

ŒThis still authorizes the interception of Americans¹ international
communications without a warrant in far too many instances and without
adequate civil liberties protections,² said Kate Martin, director of the
Center for National Security Studies, who was among the group that met with
House officials.

Caroline Frederickson, director of the Washington legislative office of the
American Civil Liberties Union, said she was troubled by the Democrats¹
acceptance of broad, blanket warrants for the N.S.A., rather than the
individualized warrants traditionally required by the intelligence court.

³The Democratic leadership, philosophically, is with us, but we need to help
them realize the political case, which is that Democrats will not be in
danger if they don¹t reauthorize this Protect America Act,² Ms. Frederickson
said. ³They¹re nervous. There¹s a Œkeep the majority¹ mentality, which is
understandable. But we think they¹re putting themselves in more danger by
not standing on principle.²