Senate Votes To Expand Warrantless Surveillance

White House Applauds; Changes Are Temporary

By Joby Warrick and Ellen Nakashima
Washington Post Staff Writers
Saturday, August 4, 2007; A01

The Senate bowed to White House pressure last night and passed a Republican plan for overhauling the federal government's terrorist surveillance laws, approving changes that would temporarily give U.S. spy agencies expanded power to eavesdrop on foreign suspects without a court order.

The 60 to 28 vote, which was quickly denounced by civil rights and privacy advocates, came after Democrats in the House failed to win support for more modest changes that would have required closer court supervision of government surveillance. Earlier in the day, President Bush threatened to hold Congress in session into its scheduled summer recess if it did not approve the changes he wanted.

The legislation, which is expected to go before the House today, would expand the government's authority to intercept without a court order the phone calls and e-mails of people in the United States who are communicating with people overseas.

As currently written, the Foreign Intelligence Surveillance Act already gives U.S. spies broad leeway to monitor the communications of foreign terrorism suspects, but the 30-year-old statute requires a warrant to monitor calls intercepted in the United States, regardless of where the calls begin or end.

At the White House, where officials had voiced concern about that requirement, a spokesman praised the Senate vote and called on House leaders to quickly follow suit. The legislation will "give our intelligence professionals the essential tools they need to protect our nation," spokesman Tony Fratto said.

Democratic leaders expressed disappointment about the result, but they pointed to language that would require lawmakers to reconsider the key provisions in six months.

"My Republican colleagues chose to rubber-stamp a flawed administration proposal that fails to provide the accountability needed in the light of the administration's past mismanagement of key tools in the war on terror," said Senate Majority Leader Harry M. Reid (D-Nev.).

Sixteen Democrats and Sen. Joseph I. Lieberman (I-Conn.) joined all 43 Republicans in supporting the measure, which is nearly identical to a proposal prepared by the Bush administration. "We're at war. The enemy wants to attack us," Lieberman said during the Senate debate. "This is not the time to strive for legislative perfection."

Privacy advocates accused the Democrats of selling out and charged that this bill gives the government more authority than it had under a controversial warrantless wiretapping program begun in secret after the 2001 terrorist attacks. Under that program, the government could conduct surveillance without judicial oversight only if it had a reason to believe that one party to the call was a member of or affiliated with al-Qaeda or a related terrorist organization. This bill drops that condition, they noted.

Democrats "have a Pavlovian reaction: Whenever the president says the word 'terrorism,' they roll over and play dead," said Caroline Fredrickson, Washington legislative director of the American Civil Liberties Union.

Gregory Nojeim, senior counsel at the Center for Democracy and Technology, predicted that the bill's approval would lead to the monitoring of ordinary Americans by the National Security Agency, which conducts most of the government's electronic surveillance. "If this bill becomes law, Americans who communicate with a person abroad can count on one thing: The NSA may be listening," he said.

Congressional Democrats and the White House clashed throughout the day not only over the scope of the changes in the law but also over whether the other side was bargaining in good faith. Democrats said they were convinced that their proposal met key the demands of Director of National Intelligence Mike McConnell, and House Majority Leader Steny H. Hoyer (D-Md.) quoted him as saying that the bill "significantly enhances America's security."

But Republicans cited a letter from McConnell yesterday afternoon calling the proposal unacceptable and warning that it would prevent him from protecting the country adequately from terrorist attacks. That assertion in turn prompted charges by Democrats that the White House had overruled McConnell in an effort to gain political advantage by painting their party as weak on terrorism.

"We did everything he wants," Brendan Daly, spokesman for House Speaker Nancy Pelosi (D-Calif.), said of McConnell, "and now he says he doesn't like the bill. They didn't move the goal post; they moved the stadium." Pelosi herself accused the Republicans of not caring "about the truth."

White House officials disputed Democrats' account of the tentative deal, and Republicans said McConnell's objections were justified by the Democrats' decision to subject more surveillance to oversight by a special intelligence court than the administration wants.

Adding to the drama was Bush's pressure on lawmakers to stay in Washington until a new measure is passed. The president said he opposes Congress's adjournment for its summer recess this weekend unless it approves "a bill I can sign." Presidents have the power to call Congress into emergency session to consider matters of national importance, although the power is rarely used.

"We have worked hard and in good faith with the Democrats to find a solution," Bush said at a news briefing after a meeting with counterterrorism officials at FBI headquarters yesterday morning. "But we are not going to put our national security at risk."

The administration and congressional Democrats agree on the need to update the FISA statute to reflect the realities of 21st-century telecommunications, including the ever-expanding digital world of e-mail, podcasts and text messages.

White House and intelligence officials have sought a broad overhaul of the act to allow spy agencies to listen in on terrorism suspects quickly, without having to apply for a court order, as is required for surveillance that targets U.S. residents. But Democratic leaders say the administration's proposals could lead to broad searches of phone calls and e-mails by ordinary Americans without judicial review.

"Given the experience of the last few years, we are reluctant to give blanket authority to any president, most especially this one," said a senior Senate aide familiar with negotiations on the surveillance bill.

White House officials complained that Democratic proposals do not give them a crucial tool: the ability to begin wiretapping without having to go to a court. "Every day we don't have [this wiretap authority], we don't know what's going on outside the country," a senior White House official said. "All you need is one communication from, say, Pakistan to Afghanistan that's routed through Seattle that tells you 'I'm about to do a truck bomb in New York City' or 'about to do a truck bomb in Iraq,' and it's too late."

The administration has been negotiating with Democrats for weeks over the issue, but talks intensified as Congress prepared to adjourn this week. Last year, the administration mounted a similar high-pressure campaign on the eve of a congressional recess, to revise legislation governing the interrogation and trial of detainees.

Adding to the urgency for the administration is a secret ruling by a FISA judge earlier this year that declared surveillance of purely foreign communications that pass through a U.S. communications node illegal without a court-approved warrant -- a requirement that intelligence officials have described as unacceptably burdensome.

Staff writers Josh White and Jonathan Weisman contributed to this report.