[NYTr] How the Fight for Vast New Spying Powers Was Won

[All the News That Doesn't Fit]

sent by rick kissell

The Washigton Post - Aug 12, 2007


How the Fight for Vast New Spying Powers Was Won

By Joby Warrick and Walter Pincus

For three days, Mike McConnell, the director of national intelligence, 
had haggled with congressional leaders over amendments to a federal 
surveillance law, but now he was putting his foot down. "This is the 
issue," said the plain-spoken retired vice admiral and Vietnam veteran, 
"that makes my blood pressure rise."

McConnell viscerally objected to a Democratic proposal to limit 
warrantless surveillance of foreigners' communications with Americans
to instances in which one party was a terrorism suspect. McConnell
wanted no such limits. "All foreign intelligence" targets in touch with 
Americans on any topic of interest should be fair game for U.S. spying, 
he said, according to two participants in the Aug. 2 conversation.

McConnell won the fight, extracting a key concession despite the 
misgivings of Democratic negotiators. Shortly after that exchange, the 
Bush administration leveraged Democratic acquiescence into a broader 
victory: congressional approval of a Republican bill that would expand 
surveillance powers far beyond what Democratic leaders had initially 
been willing to accept.

Yet both sides acknowledge that the administration's resurrection of 
virtually unchecked Cold War-era power to surveil foreign targets 
without warrants may be only temporary. The law expires in 180 days,
and Democrats, smarting from their political defeat, have promised to
alter it with new legislation to be prepared next month, when Congress
returns from its recess.

"The real train wreck happens in September," said a senior 
administration official involved in the negotiations with Congress. He 
was referring to House Speaker Nancy Pelosi's declaration hours after 
the bill's passage that portions are "unacceptable" and that the public 
will not want to wait six months "before corrective action is taken."

Until September -- and possibly for much longer -- the new law will 
enable the high-tech collection of foreign communications without 
judicial scrutiny on a vastly larger scale than previously possible, 
allowing billions of phone calls and e-mails inside as well as outside 
the United States to be routinely screened for possible links to 
terrorism and other security threats.

Congressional, administration and intelligence officials last week 
described the events leading up to the approval of this surveillance, 
including a remarkable series of confrontations that ended with 
McConnell and the White House outmaneuvering the Democratic-controlled 
Congress, partly by capitalizing on fresh reports of a growing
terrorism threat.

"We had a forcing function," a senior administration official said, 
referring to the intelligence community's public report last month that 
said al-Qaeda poses a growing threat to the United States and to 
lawmakers' desire to leave town in August. "The situation was key to 
making it work," the official said, adding that the report's
conclusions were "fortuitous" rather than engineered.

The encounters left mistrust on both sides that will complicate the
next round of debate. "They said, 'Trust us, we'll fix it,' " the
senior administration source said of the Democrats' proposals. "But
every time the bill came back, it had language [the administration]
couldn't live with."

What McConnell wanted most from Congress was to be able to intercept, 
without a warrant, purely foreign-to-foreign communications that pass 
through fiber-optic cables and switching stations on U.S. soil. That 
provision was meant to restore a U.S. capability that existed three 
decades ago, when a 1978 law allowed warrantless surveillance of
foreign calls that were overwhelmingly relayed wirelessly.

Since then, advances in technology have caused 90 percent of global 
communications to pass through wires -- mostly optic fibers capable of 
carrying 6,000 calls in a strand. That development has been a boon to 
the National Security Agency, which has worked hard to monitor the 
traffic with U.S.-based taps and concluded it was doing so legally.

But in a secret ruling in March, a judge on a special court empowered
to review the government's electronic snooping challenged for the first 
time the government's ability to collect data from such wires even when 
they came from foreign terrorist targets. In May, a judge on the same 
court went further, telling the administration flatly that the law's 
wording required the government to get a warrant whenever a fixed wire 
is involved.

"All of a sudden, the world flipped upside down," said a senior 
administration official familiar with the rulings. The official
declined to be identified by name, citing the confidentiality of court
decisions involving the Foreign Intelligence Surveillance Act.

The decisions had the immediate practical effect of forcing the NSA to 
laboriously ask judges on the Foreign Intelligence Surveillance Court 
each time it wanted to capture such foreign communications from a wire 
or fiber on U.S. soil, a task so time-consuming that a backlog 
developed. "We shoved a lot of warrants at the court" but still could 
not keep up, the official said. "We needed thousands of warrants, but 
the most we could do was hundreds." The official depicted it as an 
especially "big problem" by the end of May, in which the NSA was
"losing capability."

McConnell even appealed directly to the FISA court, meeting with judges 
to describe the impact the decisions were having. The judges were 
sympathetic but said they believed that the law was clear. "They said, 
'We don't make legislation, we interpret the law,' " the senior 
administration official said.

The rulings -- which were not disclosed publicly until the
congressional debate this month -- represented an unusual rift between
the court and the U.S. intelligence community. They led top
intelligence officials to conclude, a senior official said, that "you
can't tell what this court is going to do" and helped provoke the White
House to insist that Congress essentially strip the court of any
jurisdiction over U.S. surveillance of communications between
foreigners.

The opening shot in the administration's campaign was a bill sent to 
Capitol Hill on April 27; officials said it had been in the works since 
a public controversy erupted in late 2005 over the administration's 
"Terrorist Surveillance Program" involving warrantless surveillance of 
communications between Americans and terrorism suspects overseas.

The administration's 66-page measure was put together by an interagency 
group of lawyers headed by Benjamin A. Powell, the general counsel for 
the director of national intelligence (DNI). Powell, who had once
worked in electronic surveillance programs for the FBI and the Air
Force, joined the office of the DNI last year after helping shape the 
administration's intelligence policy as a White House associate counsel 
and special adviser to the president.

On May 1, McConnell appeared before the Senate Select Committee on 
Intelligence to press for action on amendments to the Foreign 
Intelligence Surveillance Act. The 30-year-old statute was badly behind 
the times, failing to take into account modern communication methods,
he said. "We are actually missing a significant portion of what we
should be getting," McConnell told the senators.

McConnell and other officials ultimately briefed about 250 lawmakers on 
the issue and encountered little resistance to their proposed repair
for surveillance involving purely foreign communications. Sen. John D. 
Rockefeller IV (D-W.Va.), the intelligence committee chairman, who had 
received some of the first detailed briefings on the surveillance 
program, called Vice President Cheney in late June to explore options.

"I want to move forward," he said. But Democratic leaders wanted 
something in return: the release of long-sought administration
documents describing the controversial warrantless wiretapping program
Bush had authorized in the weeks after the Sept. 11, 2001, terrorist
attacks.

The administration declined to release the documents, which include 
Bush's presidential order allowing the wiretaps, as well as the 
administration's legal opinions justifying the action. Administration 
officials described a particular showdown with key Democratic leaders
-- including Rockefeller and Carl M. Levin (Mich.), chairman of the
Senate Armed Services Committee, in which Democrats proposed a trade of
sorts.

While the exchange was not a quid pro quo, the senators essentially 
said, "You give us the documents we want, and we'll give you the 
legislation," according to an administration official present, who said 
the response was "no." McConnell argued that the Democrats were
"looking backwards" and that he was the "forward-looking guy," a
witness said.

A critical moment for the Democrats came on July 24, when McConnell met 
in a closed session with senators from both parties to ask for urgent 
approval of a slimmed-down version of his bill. Armed with new details 
about terrorist activity and an alarming decline in U.S. eavesdropping 
capabilities, he argued that Congress had days, not weeks, to act.

"Everybody who heard him speak recognized the absolute, compelling 
necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the 
intelligence panel, said later of the closed session.

Democrats agreed. "At that time, the discussion changed to 'What can we 
do to close the gap during the August recess,' " said a senior 
Democratic aide who declined to be identified because the meetings were 
classified. As delivered by McConnell, the warnings were seen as fully 
credible. "He's pushing this because he thinks we're in a high-threat 
environment," the senior aide said.

Throughout this period, Republican lawmakers promoted the 
administration's version of the bill as a powerful response to the 
terrorism threat. Rep. Peter Hoekstra (R-Mich.), a former chairman of 
the House intelligence panel, told colleagues, for example, that "this 
is about protecting the homeland, and it is about protecting our troops 
in Iraq, Afghanistan and Pakistan."

But McConnell consistently sought authority for warrantless
surveillance not only of terrorist suspects outside the country, but of
all foreign intelligence targets. In a letter to Senate leaders on Aug.
2, he said no such limitation existed when the FISA law was passed in
1978, "nor is one appropriate today. . . . The Intelligence Community
must be able to gather needed intelligence information on the array of
threats to our national security." A senior administration official
mentioned the North Korean nuclear program as an example of a threat.

Where the matter became sticky -- and ultimately developed into tense 
exchanges between the Democrats and McConnell, with each side later 
accusing the other of misrepresenting their conversations -- was on the 
question of how to deal with surveillance of communications involving 
citizens and foreigners inside the country.

The Democrats were reluctant to give the NSA blanket permission to 
capture such data without a warrant unless independent oversight was 
provided, either by the court or by the Justice Department's inspector 
general. They also worried that providing warrantless authority to spy 
on targets other than foreign terrorism suspects would lead to 
potentially abusive monitoring of Americans innocently in contact with 
foreign targets.

Other provisions in the White House-backed bill added to the Democrats' 
discomfort. For instance, a Democratic bill would have authorized 
warrantless surveillance "directed" at individuals reasonably believed 
to be outside the United States. But the administration's draft -- and 
the one passed into law -- permitted collecting data "concerning"
people reasonably believed to be outside the country. Democrats said
the difference between collection efforts "concerning" foreigners and 
"directed" at foreigners could be enormous, allowing intelligence 
officials far greater leeway.

Partly, it was a matter of Democratic mistrust of the administration, 
due to what Senate Majority Leader Harry M. Reid (D-Nev.) called "the 
administration's repeated past mismanagement of key tools in the war on 
terror."

On July 31, McConnell met with Democratic leaders in an unusual night 
session to hash over their concerns. In McConnell's bill, the attorney 
general's office would certify that U.S. collection methods were in
line with the law, a procedure Democrats told him they did not trust.
In a series of conference calls, McConnell continued to complain about
a Democratic-backed provision limiting warrantless surveillance to
foreign suspects tied to terrorist groups. Democrats noted that an
earlier, administration-backed measure had included similar language.

"There was a lot of back-and-forth," said a congressional official 
familiar with the discussion. Pelosi suggested as a compromise limiting 
the authority to "threats to national security." But McConnell -- whose 
office was getting e-mails throughout the negotiations from officials
at the Justice Department, the vice president's office and elsewhere in
the intelligence community -- remained firm, and eventually the
Democrats relented and presented a bill that they believed had met
McConnell's requirements.

McConnell deemed its fine print unacceptable, however, and in the end, 
it was the Republican bill, a near-copy of McConnell's proposal, that 
passed both chambers of Congress. It drew support not only from most 
Republicans but also from 16 Senate Democrats and 41 House Democrats. 
Hours after its passage, Pelosi declared portions of the bill 
"unacceptable" and forecast changes in the coming months.