House OKs Expanded Wiretap Program

By Richard B. Schmitt
The Los Angeles Times

Friday 29 September 2006

The bill would allow easier monitoring of e-mails and phone records of US citizens during terror probes.

Washington - The House voted late Thursday to rewrite the nation's domestic wiretap laws, giving President Bush new power to monitor the e-mail and phone records of US citizens during terrorism investigations without having to obtain court approval.

But lawmakers were unlikely to deliver final legislation to the White House before leaving this weekend for the election campaign, a setback for the administration, which has made national security a pillar of its strategy to maintain Republican control of Congress.

The House measure would endorse the once-secret program Bush launched after Sept. 11, authorizing the National Security Agency to monitor international communications between terrorism suspects and people in the US without first obtaining warrants. It would also set new rules for warrantless surveillance during emergencies and give Congress a bigger role in monitoring the surveillance.

The measure was approved, 232 to 191, with 18 Democrats supporting it. Thirteen Republicans opposed the bill.

The action came as the Senate was immersed in approving another Bush priority: legislation setting procedures for trials of military detainees and interrogating terrorism suspects.

Some lawmakers said the Senate could still take up the wiretap issue in a lame-duck session after the Nov. 7 election. Failing that, Bush would be deprived of congressional backing for what he has called one of the administration's most important anti-terrorism programs.

The House and Senate bills generally would expand executive power to conduct warrantless electronic surveillance, but they differ in key respects.

Each bill would change the definition of electronic surveillance so that in most cases warrants would be required only if the communication occurred within the US or if a person in the US was intentionally targeted. If the target was outside the US - as Bush has described his NSA program - then court review would not be required.

That would be a big change from current law, which requires a court order to intercept calls or e-mails into or out of the US.

Critics said the bills would greatly expand surveillance of citizens without court approval.

"They would allow more warrantless surveillance of Americans than has ever before been approved by statute in US history," said Lisa Graves, a legislative counsel with the American Civil Liberties Union.

The revisions would alter the 1978 Foreign Intelligence Surveillance Act, or FISA, which created a secret court to handle Justice Department requests for electronic surveillance in terrorism and espionage cases. Bush acknowledged that he had bypassed the court when he ordered the NSA program, saying he had the power under the Constitution to ignore the intelligence statute.

Republicans said Thursday that the act needed updating to reflect new technologies used by terrorists. They portrayed critics as putting the country at risk by refusing to give the administration adequate tools to fight the war on terrorism.

"This bill is reasonable," said Rep. Heather A. Wilson (R-N.M.), its sponsor. "We are trying to modernize the electronic surveillance act of this country, so we are allowing our intelligence agencies to collect the intelligence to keep us safe while also putting in place rules of the road to protect civil liberties."

Democrats said the legislation abridged civil liberties and invaded the privacy rights of ordinary citizens to be free of unreasonable searches without a court order.

"The president wants to go on a fishing expedition," said Rep. Edward J. Markey (D-Mass.), "but he doesn't want to get a fishing license."

The GOP leadership blocked consideration of amendments to the legislation.

A bipartisan group of House members, including Rep. Adam B. Schiff (D-Burbank) and Rep. Jeff Flake (R-Arizona), had proposed to increase the number of judges who hear wiretap cases and give the administration more time to seek warrants in emergencies.

The action came nine months after the disclosure in media reports that Bush had ordered the NSA to monitor international communications between terrorism suspects abroad and people in this country. The disclosure initially raised broad concern that the administration had violated the FISA law.

On Thursday, Sen. Lindsey Graham (R-S.C.) was skeptical that the NSA bills would be approved in the lame-duck session but said a consensus had developed in Congress "that the program should be authorized by Congress."

Sen. John Cornyn (R-Texas) said he was hopeful that the Senate would take up the NSA bill after the election.

Bush urged Senate Republicans to pass the NSA bill, Cornyn said in an interview outside the Senate chamber.

"There's been a lot of people in Congress who've been complaining that Congress has been left out of its role in this program, and now this bill specifically provides Congress such a role," he said.

"It would be ironic if we didn't pass it."

The House bill would permit warrantless surveillance in the wake of terrorist attacks and in cases where attacks were considered "imminent," so long as the administration notified selected members of Congress. The law now allows for warrantless surveillance for 15 days only when Congress declares war.

The Senate legislation takes a somewhat different tack. It would enable the president to create surveillance "programs" that were approved in advance by the FISA court and could later monitor individuals without another court order.

The Senate bill also includes language that encourages the president to obtain court review of the NSA program but does not require such a review.

The administration's program suffered another setback Thursday when a federal judge in Detroit, who has declared the NSA program unconstitutional, turned down a Justice Department request for an indefinite stay of her ruling.

The Justice Department asked US Judge Anna Diggs Taylor to allow the program to continue pending an appeal.

Taylor denied that request, but she gave the government seven days to seek a stay from the appeals court to allow the program to continue.

"A stay is necessary to ensure that this vital intelligence-gathering program is not interrupted," Justice Department spokeswoman Tasia Scolinos. "We believe there would be a dramatic risk of harm to the nation if the Terrorist Surveillance Program was halted by court order at this point."

Taylor ruled Aug. 17 that the program violates the rights to free speech and privacy under the Constitution.

Times staff writer Richard Simon contributed to this report.