Senior Bush administration officials proposed to a Senate committee Tuesday new laws that they claim are needed to update domestic-surveillance laws, but which critics say would make it easier for government agencies to spy on people inside the United States.
The Associated Press reports that administration officials faced tough questions from Senate Intelligence Committee Democrats, who were highly skeptical of the proposal to expand the reasons for issuing warrants and provide legal immunity to telecom companies that assist in surveillance operations.
For two hours, National Intelligence Director Mike McConnell, National Security Agency Director Lt. Gen. Keith Alexander, Assistant Attorney General Kenneth Wainstein and their lawyers tried to parry increasingly dubious and hostile questions. They deferred many answers to a committee session closed to the public.
With little apparent success, they portrayed the administration bill as merely an adjustment to technological changes wrought by cell phones, e-mail and the Internet since the Foreign Intelligence Surveillance Act was enacted in the 1970s. Under current rules, McConnell said, "We're actually missing a significant portion of what we should be getting."
The current rules, enacted in 1978 under the Foreign Intelligence Surveillance Act (FISA), require that a non-citizen in the United States be connected to a foreign power or terrorism suspect for a secret court to consider issuing a warrant authorizing the federal government conduct surveillance. The AP reported Tuesday that this court issued 2,176 such warrants in 2006, a record number. Of all the warrant requests made in 2006, the court denied only one.
The proposed law, which is available as a PDF from the Senate Intelligence Committee's website, authorizes warrants to eavesdrop on those "who possess or receive significant foreign intelligence information while in the United States" (emphasis theirs) even if the connection to a foreign power or terrorism suspect is "unclear."
The bill protects from lawsuits telecom companies that cooperate with the government's domestic spying operations, and does so retroactively from Sept. 11, 2001. Additionally, it moves legal actions against these companies from state to federal court.
An April 13 press release issued by the Department of Justice and the Office of the Director of National Intelligence defends the legislation, saying that the current FISA rules do not reflect current technology and that eliminating cumbersome rules would free up intelligence agencies to work harder at safeguarding privacy.
Revolutions in telecommunications technology have brought within FISA's scope communications that Congress did not intend to be covered – and, as a result, extensive resources are now expended obtaining court approval for acquiring communications that do not directly or substantially involve the privacy interests of Americans. Restoring FISA to its original focus will enhance our intelligence capabilities while allowing the Intelligence Community to devote more resources to protecting the privacy interests of people in the United States.
The New York Times notes that during the hearing, Mr. McConnell asserted that, even though the White House was seeking expanded justifications for FISA warrants, the president still has the authority to conduct surveillance inside the United States without a warrant. He said that no such surveillance is currently being conducted.
During Tuesday's hearings, lawmakers expressed skepticism about the need to update the law, which has already been updated several times in the past 29 years. The Times also writes that many Democrats were riled by an apparent absence of information about domestic spying operations.
Several Democratic lawmakers expressed frustration on Tuesday that the administration had not provided documents related to the National Security Agency program, which the White House called the Terrorist Surveillance Program. They suggested that they would be reluctant to agree to a change in the surveillance law without more information from the White House.
"To this day, we have never been provided the presidential authorization that cleared that program to go or the attorney general-Department of Justice opinions that declared it to be lawful," said Senator Sheldon Whitehouse, Democrat of Rhode Island. "Where's the transparency as to the presidential authorizations for this closed program? That's a pretty big 'we're not going to tell you' in this new atmosphere of trust we're trying to build."
Democratic senators also cited what they regarded as past abuses of trust by US intelligence agencies. Mr. Whitehouse and other senators invoked a March audit by the Justice Department's inspector general, reported by The Washington Post, that found pervasive violations in the FBI's use of national security letters to obtain phone, e-mail, and financial records of US residents and visitors.
The American Civil Liberties Union also noted past revelations of controversial domestic surveillance programs. In a strongly worded press release, the ACLU denounced the proposed "get-out-of-jail-free card" for telecom companies, and the White House's attempt to "treat innocent Americans as suspects."
"Broadening FISA would only reward and legitimize both the Justice Department and executive branch's numerous violations of the law," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Giving the Department of Justice more latitude to conduct warrantless searches is ludicrous when you consider that it has shown no restraint with the power it already has. If a little boy destroys a tricycle, you don't hand him the keys to the car."