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.

Government Must Share All Evidence On Detainees

By Josh White
Washington Post Staff Writer
Saturday, July 21, 2007; A02

A federal appeals court charged with reviewing the enemy combatant status of detainees at the U.S. detention facility in Guantanamo Bay, Cuba, ruled yesterday that the government must provide the court and defense lawyers with classified evidence gathered against the detainees. The ruling indicates that the court wants to conduct full reviews of the Bush administration's decisions about the suspected terrorists.

Judges on the U.S. Court of Appeals for the District of Columbia Circuit wrote that the court "must have access to all the information available" to the military's Combatant Status Review Tribunals to determine whether the tribunals were fair to Guantanamo detainees and whether the individuals should in fact be considered enemy combatants. Government lawyers had argued that the court should review only what was in the official record of the tribunals, not all the evidence they had gathered to support the hearings.

The court was ruling on motions filed in two cases arising out of the Detainee Treatment Act, which was passed in late 2005 and gives detainees the right to appeal tribunal decisions to the court of appeals -- currently their only legal option for challenging their detention. Although the detainees had their ability to file habeas corpus petitions stripped by Congress last year, the Supreme Court has agreed to hear a case that could reinstate such legal actions.

Chief Judge Douglas H. Ginsburg wrote that the court and the detainees' lawyers must see all the evidence because the Detainee Treatment Act requires the court to determine the validity of the tribunal decisions, and doing so without all available information would be inappropriate.

"The court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tribunal's status determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator," Ginsburg wrote for the three-judge panel.

Erik Ablin, a Justice Department spokesman, said it is too soon to comment: "We are evaluating the decision's implications and considering our options."

Defense lawyers said the decision continues to show that the Detainee Treatment Act review in federal court is much more limited than habeas corpus review and still puts too much of the process in the government's hands. Only the government knows what classified information it used to determine that detainees were enemy combatants, they said, and what information was not presented to the tribunals.

"Is this going to be a situation in which the government will tell the court: 'You just have to take our word for it?' " asked David Remes, who represents a group of detainees at Guantanamo.

Bush Approves New CIA Methods

Interrogations Of Detainees To Resume

By Karen DeYoung
Washington Post Staff Writer
Saturday, July 21, 2007; A01

President Bush set broad legal boundaries for the CIA's harsh interrogation of terrorism suspects yesterday, allowing the intelligence agency to resume a program that was suspended last year after criticism that it violated U.S. and international law.

In an executive order lacking any details about actual interrogation techniques, Bush said the CIA program will now comply with a Geneva Conventions prohibition against "outrages upon personal dignity, in particular humiliating and degrading treatment." His order, required by legislation signed in October, was delayed for months amid tense debate inside the administration.

"We can now focus on our vital work, confident that our mission and authorities are clearly defined," CIA Director Michael V. Hayden said in a statement to agency employees. Although human rights groups have alleged that CIA interrogators used torturous and illegal methods, Hayden said the program had gleaned "irreplaceable" information from terrorism detainees.

Two administration officials said that suspects now in U.S. custody could be moved immediately into the "enhanced interrogation" program and subjected to techniques that go beyond those allowed by the U.S. military.

Rights activists criticized Bush's order for failing to spell out which techniques are now approved or prohibited. It said instead that CIA interrogators cannot undertake prohibited acts such as torture and murder, and it barred religious denigration and humiliating or degrading treatment "so serious that any reasonable person, considering the circumstances, would deem" it "beyond the bounds of human decency." Detainees, it said, must be provided with "the basic necessities of life," including adequate food and water, clothing, essential medical care, and "protection from extremes of heat and cold."

"All the order really does is to have the president say, 'Everything in that other document that I'm not showing you is legal -- trust me,' " said Tom Malinowski of Human Rights Watch.

The CIA interrogation guidelines are contained in a classified document. A senior intelligence official, asked whether this list includes such widely criticized methods as the simulated drowning known as "waterboarding," declined to discuss specifics but said "it would be very wrong to assume that the program of the past would move into the future unchanged."

CIA detainees have also alleged they were left naked in cells for prolonged periods, subjected to sensory and sleep deprivation and extreme heat and cold, and sexually taunted. A senior administration officials briefing reporters yesterday said that any future use of "extremes of heat and cold" would be subject to a "reasonable interpretation . . . we're not talking about forcibly induced hypothermia."

Congressional reaction to the order was muted, as key lawmakers said they were only informed of its contents yesterday. Republican Sens. John McCain (Ariz.), Lindsey O. Graham (S.C.) and John W. Warner (Va.), who helped draft legislation last year requiring the executive order, issued a joint statement that they needed more information before making a judgment. They said the administration has not responded to the questions they asked during a recent briefing on the new order and the detainee program.

Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate intelligence committee, said it was unclear what the order "really means and how it will translate into actual conduct by the CIA." In a statement, Rockefeller repeated a committee demand made last spring that the White House turn over a copy of the Justice Department's legal analysis of the new guidelines.

Similar demands for internal documents related to the Bush administration's warrantless surveillance program have been rebuffed by the White House.

The steps leading to yesterday's order began with Bush's determination in January 2002 that members of al-Qaeda and the Taliban, as well as other allegedly terrorist captives, were "enemy combatants" rather than prisoners of war covered by the 1949 Geneva Conventions.

Criticism of the U.S. military's treatment of detainees -- first in Afghanistan and at the military prison at Guantanamo Bay, Cuba, and later at the Abu Ghraib prison in Iraq -- eventually provoked the Pentagon to rewrite its interrogation guidebook and explicitly ban many of the techniques endorsed and used by the CIA. But a new law enforced those limits only for detainees in military custody.

Criticism of the CIA began with revelations in late 2005 that the agency had imprisoned and interrogated "high-value" suspects in secret prisons in third countries. But after the Supreme Court ruled last summer, in Hamdan v. Rumsfeld, that all U.S. prisoners -- of any nationality, being held in any country -- were covered by Geneva protections against degrading treatment, Bush publicly confirmed the existence of the CIA prisons and announced that 14 remaining CIA prisoners had been transferred to military custody at Guantanamo.

Bush maintained the CIA interrogation program had always been legal, but the White House said the Geneva provision, Common Article 3, was vague and undefined. After the CIA suspended its "enhanced interrogations" to ensure its officers could not be charged with crimes, Congress ordered the administration to ensure, via executive order, that any further such interrogations complied with both domestic and international law.

Bush's statement said the techniques could be used against any "alien detainee" determined by the CIA director to be a member or supporter of al-Qaeda, the Taliban or associated organizations likely to have information about attacks against the United States or its allies.

Over the past several months, the secret list of CIA techniques has been the subject of interagency debate at the highest levels, with the State Department anxious to avoid offending allied governments, and the Department of Defense concerned that any CIA excesses could cause U.S. soldiers captured in the future to be subject to abuses.

The intelligence official said the agency itself had studied the effectiveness of past techniques and retained or jettisoned them on a "sliding scale." The criteria, he said, were what was "appropriate, effective, lawful and sustainable." While Hayden did not get "everything [he] might have wanted" in the guidelines, the official said, they contained everything the CIA needed and "more than was asked for."

To help allay concerns, new safeguards were added, the official said. Every use of an "enhanced" technique must be personally approved by Hayden in every instance, he said. "There will be no lone wolves, interrogations will always be conducted by a team, and anybody on the team can knock it off at any time."

A senior administration official said that the new rules do not require that the International Committee of the Red Cross have access to CIA prisoners. Many other nations interpret international treaties as requiring such access for all detainees everywhere.

Staff writer Josh White contributed to this report.