[NYTr] Democrats Betray US: Ready to Extend Wiretap Powers

[All the News That Doesn't Fit]

The New York Times  - October 9, 2007
http://www.nytimes.com/2007/10/09/washington/09nsa.html

Democrats Seem Ready to Extend Wiretap Powers

By ERIC LICHTBLAU and CARL HULSE

WASHINGTON, Oct. 8 — Two months after insisting that they would roll
back broad eavesdropping powers won by the Bush administration,
Democrats in Congress appear ready to make concessions that could
extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval
of the broadened authority that they secured temporarily in August as
Congress rushed toward recess. Some Democratic officials concede that
they may not come up with enough votes to stop approval.

As the debate over the eavesdropping powers of the National Security
Agency begins anew this week, the emerging measures reflect the reality
confronting the Democrats.

Although willing to oppose the White House on the Iraq war, they remain
nervous that they will be called soft on terrorism if they insist on
strict curbs on gathering intelligence.

A Democratic bill to be proposed on Tuesday in the House would maintain
for several years the type of broad, blanket authority for N.S.A.
eavesdropping that the administration secured in August for six months.

In an acknowledgment of concerns over civil liberties, the bill would
require a more active role by the special foreign intelligence court
that oversees the interception of foreign-based communications by the
security agency.

A competing proposal in the Senate, still being drafted, may be even
closer in line with the administration plan, with the possibility of
including retroactive immunity for telecommunications utilities that
participated in the once-secret program to eavesdrop without court
warrants.

No one is willing to predict with certainty how the question will play
out. Some Congressional officials and others monitoring the debate said
the final result might not be much different from the result in August,
despite the Democrats’ insistence that they would not let stand the
extension of the powers.

“Many members continue to fear that if they don’t support whatever the
president asks for, they’ll be perceived as soft on terrorism,” said
William Banks, a professor who specializes in terrorism and national
security law at Syracuse University and who has written extensively on
federal wiretapping laws.

The August bill, known as the Protect America Act, was approved in the
final hours before Congress went on its summer recess after heated
warnings from the administration that legal loopholes in wiretapping
coverage had left the country vulnerable to another terrorist attack.
The measure significantly reduced the role of the foreign intelligence
court and broadened the security agency’s ability to listen to
foreign-based communications without court warrants.

“We want the statute made permanent,” a spokesman for the Justice
Department, Dean Boyd, said Monday. “We 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. We’re going to go
forward and look at any proposals that come forth. But we’ll look at
them very carefully to make sure they don’t have any consequences that
hamper our abilities to protect the country.”

House Democrats overwhelmingly opposed the bill in August and said the
administration had been forced them into a corner.

As Congress takes up the new bills, a senior Democratic aide said,
House leaders are working hard to ensure that the administration does
not succeed in pushing through a bill that would make permanent all the
powers it secured in August.

“That’s what we’re trying to avoid,” the aide said. “We have that
concern too.”

The bill to be proposed on Tuesday by the Democratic leaders of the
House Intelligence and Judiciary Committees would impose more controls
over the powers of security agency, including quarterly audits by the
Justice Department inspector general. The measure would also give the
foreign intelligence court a role in approving, in advance, “basket” or
“umbrella” warrants for bundles of overseas communications, a
Congressional official said.

“We 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,” 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
utilities that participated in the eavesdropping. That has been a top
priority of the administration. The temporary measure gave the
utilities immunity for future acts, but not past deeds.

Private groups are trying to prove in federal court that the utilities
violated the law by participating 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 “legal mess” and strongly suggested that it was illegal.

The House bill would also require the administration to disclose
details of the program. Democrats say they plan to push the
administration to turn over internal documents laying out the legal
rationale for the program, something the administration has refused to
do.

In the Senate, the chairman of the Intelligence Committee, John D.
Rockefeller IV, Democrat of West Virginia, is working with his
Republican counterpart, Christopher S. Bond of Missouri, a main
proponent of the August plan, to come up with a compromise.

Wendy Morigi, a spokeswoman for Mr. Rockefeller, said that retroactive
immunity for the utilities was “under discussion” but that no final
proposal had been developed.

The immunity issue may prove to be the crucial sticking point between
whatever proposals the House and Senate ultimately pass. Representative
Jerrold Nadler, a New York Democrat who was among the harshest critics
of the temporary bill, said in an interview he would vigorously oppose
any effort to grant retroactive legal protection to telecommunications
utilities.

“There is heavy pressure on the immunity, and we should not cave an
inch on that,” Mr. Nadler said.

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

“It is not perfect, but it is a good bill,” he said. “It makes huge
improvements in the current law. In some respects it is better than the
old FISA law,” a reference to the foreign intelligence court.

Civil liberties advocates and others who met House officials on Monday
on the proposed bill agreed that it was an improvement over the August
plan but were less charitable in their overall assessment.

‘This still authorizes the interception of Americans’ international
communications without a warrant in far too many instances, and without
adequate civil liberties protections,” said Kate Martin, director of
the Center for National Security Studies, who was in the group that met
House officials.

Caroline Frederickson, director of the Washington legislative office of
the American Civil Liberties Union, said she was troubled by the
Democrats’ acceptance of broad, blanket warrants for the security
agency rather than the individualized warrants traditionally required
by the intelligence court.

“The Democratic leadership, philosophically, is with us,” Ms.
Frederickson said. “But we need to help them realize the political
case, which is that Democrats will not be in danger if they don’t
reauthorize this Protect America Act. They’re nervous.

“There’s a ‘keep the majority’ mentality, which is understandable,” she
said, “But we think they’re putting themselves in more danger by not
standing on principle.”

Copyright 2007 The New York Times