Risks from lapsed wiretap law are disputed

House Democrats, who let the law expire Saturday, see little danger. Intelligence officials argue the ability to track potential terrorists is impaired.

By Gail Russell Chaddock | Staff writer of The Christian Science Monitor

from the February 19, 2008 edition

Washington - The White House and Democrats on Capitol Hill each had a hand in letting a temporary wiretapping law expire this weekend, but most of the political fallout is landing on Congress.

President Bush had pledged to veto any bill that merely extended the temporary law without resolving the matter of immunity for telecommunications firms that helped the government with its secret eavesdropping program after 9/11. A "patchwork extension" wouldn't give the security needed to protect the nation, Mr. Bush said, and he urged Republican lawmakers to vote against it.

House Democratic leaders said they would not be "jammed" by the White House into accepting the Senate version of the bill – which includes the immunity provision – and wanted more time to work out differences with the Senate.

As a result, at the stroke of midnight Saturday, the Protect America Act expired. The risk to national security is not yet clear, but the political firefights on both sides of the aisle couldn't be missed.

Bush said Thursday that failure to update the Protect America Act will "harm our ability to monitor new terrorist activities and could reopen dangerous gaps in our intelligence."

House Speaker Nancy Pelosi, in response, dubbed such talk fear-mongering. The president has authority to continue needed eavesdropping under another law, the Foreign Intelligence Surveillance Act (FISA), she said. Moreover, the authorities granted under the temporary law enacted in August will carry on for a year, she added.

To House Democrats, at stake is whether Bush and future presidents are accountable to Congress. "Whether the president is a Democrat or a Republican, they can't act outside the law," said Speaker Pelosi Thursday. The telecom companies can't either, she added.

Republicans say House Democrats are putting national security at risk.

"Americans sleep easier at night knowing intelligence officials work around the clock monitoring terrorists. But while Americans slept tonight, our intelligence agencies lost a vital tool because of the Democrats' unwillingness to act," said the Republican National Committee, in a statement on Sunday.

The matter of retroactive immunity for the telecommunications firms is contentious. Without liability protection – and facing lawsuits seeking billions of dollars in damages – such companies will be "less likely to cooperate" with the government on national-security matters in the future, Bush said Thursday.

"This is the Democratic allegiance to the plaintiff's bar," Senate GOP leader Mitch McConnell said Sunday on CNN's "Late Edition with Wolf Blitzer." "They're more interested in seeing [telecom] companies in court than they are seeing terrorists in jail."

House and Senate versions of a new eavesdropping law both aim to improve the government's ability to monitor technologies such as the Internet and cellphones. The issue now is how a lapse in the law affects national security.

"The problem is what to do with the new tips, and they're coming in all the time," says Rep. Heather Wilson (R) of New Mexico.

On Sunday, Director of National Intelligence Mike McConnell said on "Fox News Sunday" that "a warrant means probable cause, which is a very time-consuming process to go through." Moreover, he said, the telecom companies "might be unwilling to cooperate with the lawful requests from the government in the future, without unnecessary court involvement and protracted litigation."

Democrats say that if a previously unknown terrorist group must be surveilled, the administration can use existing authorities under FISA. "Under FISA, the attorney general can approve surveillance in minutes. Surveillance can begin immediately, and approval of the FISA court can be obtained within three days," says Pelosi spokesman Nadeam Elshami. Unlike last summer, when Congress first passed the Protect America Act, no backlog of cases exists to slow the process of obtaining surveillance approvals.

Pelosi says she has instructed committee chairs to work on resolving differences with the Senate during the one-week presidential recess, which ends Feb. 25.