To what extent should courts become involved in the oversight of sensitive US eavesdropping operations?
That is one of the most crucial items at issue in the developing struggle between congressional Democrats and the White House over new legislation to extend the government's surveillance authority.
Key House Democrats say judges should look over the National Security Agency's shoulder more often. Under a bill approved by two House committees Wednesday, if the NSA wants to listen in on foreigners outside the United States but a possibility exists that these targets might communicate with Americans, then the government needs to get a blanket court order approving the effort for up to a year.
The Bush administration says that provision could hobble American intelligence. In practical terms, it's always possible that foreign targets might call the US, say US officials. Thus, the NSA might have to get court approval even for wiretapping operations aimed at foreign-to-foreign communications.
"That is something that gives us a lot of concern, that we would have to go to a [court] to get these approvals in an area where we really need flexibility," said Kenneth Wainstein, assistant attorney general for the national security division, in a conference call with reporters Wednesday. "We need to be nimble, and we need to be able to move around to get these surveillances."
The battle over the wiretap bill promises to be one of the most difficult and protracted legislative efforts of the current Congress.
That's partly because of politics. Democrats on Capitol Hill are under pressure from civil liberties advocates and others who believe lawmakers gave intelligence agencies too much latitude in a temporary bill hastily passed before Congress's summer break.
Meanwhile, the White House has not been shy about invoking the specter of possible future terrorist attacks in its defense of the status quo.
Powers granted by the temporary legislation – which expires in February 2008 – have allowed intelligence professionals "to gather critical information that would have been missed with this authority," said President Bush Wednesday. "Keeping this authority is critical to keeping America safe."
House leaders defended their effort as one that strikes an appropriate balance between civil liberties and national security concerns.
"What the terrorists fear most is our constitution and our values, and that is what this bill protects," said Rep. John Conyers (D) of Michigan, chairman of the House Judiciary Committee.
But the struggle over the bill is also complex, because the law is unusually dense – and because the pace of technological change has made electronic espionage more involved.
Last year's temporary update, for example, closed what all involved labeled a dangerous gap in intelligence authority, by allowing the NSA to snoop on communications between foreigners even if those communications pass through US electronic networks, as many e-mails do.
Plus, the underlying activity here is classified, which does not make consideration of the bill easier.
Lawmakers outside the circle of Intelligence Committee members may not fully know the extent of NSA's wiretapping – or how important it is or is not – when they vote on the program. Take legal immunity for telecommunications firms – another controversial part of this legislation.
The Bush administration badly wants Congress to approve legal immunity for any past actions private utilities undertook to aid NSA spying. Currently, AT&T and Verizon, among other firms, face a number of lawsuits brought by privacy advocates who claim that, by allowing the government access to their data streams, the companies have participated in illegal eavesdropping.
NSA officials have gone so far as to worry that these suits could bankrupt the firms. Bush says he will not sign any new eavesdropping bill that does not provide immunity.
Currently such a provision isn't in the bill. But Democratic leaders say they'd be glad to discuss immunity – if the administration turns over internal records detailing exactly what the communications firms did.
Otherwise Congress would be in the position of providing "blind immunity," said Rep. Steny Hoyer (D) of Maryland, House majority leader.
Civil liberties proponents bitterly oppose the amnesty effort.
"Why is the president of the United States trying to get the telecommunications companies off the hook for their illegal activity?" says Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union. "He is supposed to be upholding laws, not encouraging companies to break them."
Other aspects of the legislation which the White House wishes to change include its expiration date. The bill sunsets in 2009, while the administration wants a permanent extension.