New rule on spying goes to Congress

Compromise measure would give government more leeway to listen in

September 18, 2006|By Siobhan Gorman | Siobhan Gorman,SUN REPORTER

WASHINGTON -- Under the pressure of a hotly contested national election, Congress is on the verge of approving the most sweeping changes to government spying powers in a generation.

Five years after President Bush launched the National Security Agency's warrantless surveillance program, Congress is expected to take up a measure this week that would strengthen the president's authority to conduct domestic espionage. Bush increased the pressure on lawmakers Friday, saying that the measure, designed to remove a legal cloud over the NSA program, is "essential to winning the war on terror."

Like two other major post-Sept. 11 changes -- the creation of a huge Department of Homeland Security and a new national spymaster's office -- the administration initially fought the legislation involving the NSA program.

Critics in both parties say the earlier reforms have not lived up to their promise and, in some cases, created as many problems as they solved. They warn that the NSA legislation might also fail to resolve questions surrounding that program and could have the effect of expanding the president's spying powers beyond what the bill's sponsors have acknowledged.

It could also leave intelligence officers in the dark about when they can and can't spy inside the country because it eliminates the old rules without creating new ones, critics say.

Administration officials say the changes are "a critical tool" to upgrade the nation's intelligence capabilities. Steven Bradbury, a top Justice Department official, told Congress recently that the NSA measure would allow the government to better target terrorists who use the latest technology to evade detection.

Bush has repeatedly said that the NSA program has helped thwart terrorist plots and might have prevented the Sept. 11 attacks had it been in place earlier.

Republican strategists have made little secret of their desire to focus the country's attention on the fight against terrorism. National opinion surveys, such as one released last week by the independent Pew Research Center, show that fighting terrorism is the only major issue on which voters prefer Republicans to Democrats.

The surveillance measure and another bill to establish military tribunals for detainees are likely to dominate Congress's pre-election session. Final action on both measures might not take place until Congress returns for a lame-duck session after the November vote.

Critics say the measure would give the government too much power to spy inside the United States, threatening individual liberties. They say that a provision of the NSA measure, which would allow the government to eavesdrop without a warrant, would remove a crucial check on abuse of government power.

"The answer is there are bad guys, and we should take countermeasures commensurate with the danger, but we should not set aside all of our constitutional rules and civil liberties just because it advances one party's political agenda," said Bruce Fein, a former Justice Department official in the Reagan administration.

Since December, Bush argued that the NSA program he authorized, which eavesdrops on communications between the United States and abroad, was not subject to a 1978 law that established a secret court as the "exclusive means" for issuing warrants for eavesdropping inside the United States.

But after dozens of legal challenges to the NSA program and some setbacks in lower courts, the administration worked out a compromise with Sen. Arlen Specter of Pennsylvania, who heads the Judiciary Committee and was one of the most vocal Republican critics of the program. The plan would remove the requirement for warrants for individual wiretaps in return for Bush's agreement to let the secret national security court review the constitutionality of the NSA program.

Bush has stepped up his push for the measure as part of his broader effort to highlight the terrorist threat.

"The nature of communications has changed, quite dramatically," Bush said. "If an al-Qaida commander or associate is calling into the United States, we need to know why they're calling."

Democratic members of the Senate Intelligence Committee have complained that the administration has been withholding information about how the NSA program works.

"There are still too many unanswered questions about the program to simply legalize it," said Sen. Barbara A. Mikulski, a Maryland Democrat.

Some national security specialists also argue that the administration-backed measure goes far beyond accommodating technological advances. It would significantly expand the power of the president to eavesdrop inside the country with no outside check on those activities, they say.

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