New misgivings on wiretap law

Some Democrats regret updating FISA to expand the NSA's ability to tap American calls.

from the August 22, 2007 edition

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Nor do many lawmakers like the fact that Attorney General Alberto Gonzales is one of the key officials who will determine how the new rule is put into practice.

The bottom line: The vote will likely be revisited.

In a letter to House Judiciary Committee chairman Rep. John Conyers (D) of Michigan, House Speaker Nancy Pelosi (D) of California wrote that "Many provisions of this legislation are unacceptable, and, although the bill has a six-month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken."

In addition, Sen. Patrick Leahy (D) of Vermont, chairman of the Senate Judiciary Committee, on Aug. 20 threatened to pursue contempt charges against the administration over its reluctance to produce documents outlining the eavesdropping's legal foundation.

Senator Leahy subpoenaed the NSA, the National Security Council, and the offices of the president and vice president for these papers in late June. They are necessary, he says, so that the Senate can understand better exactly what it's voting for in regard to warrantless wiretapping.

White House counsel Fred Fielding has asked for more time to respond. In an Aug. 20 letter to Leahy, however, he noted that the White House had identified a "core set" of these papers that it would likely withhold under a claim of executive privilege.

Lawyers for Vice President Dick Cheney, for instance, indicated that they had found more than 40 "Top Secret/Codeword Presidential authorizations" and memoranda dealing with the issue.

"When the Senate comes back in session, I'll bring it up before the committee," Leahy said at a press conference. "I prefer cooperation to contempt. Right now, there's no question that they are in contempt of a valid order of the Congress."

In regard to the subpoenaed documents, both sides have strong arguments for their positions, notes one legal expert.

Congress is directly legislating on the subject. In fact, eavesdropping legislation "is a critically important item on the congressional agenda," notes Carl Tobias, a law professor at the University of Richmond.

Yet courts have generally favored claims of executive privilege when they deal with issues of national security. And any move to hold the White House in contempt of Congress over the withheld documents would be slow going.

"It's hard to see that moving very far even this year," says Mr. Tobias.

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