Recent surveillance law raises concerns

Broad powers given at end of session, officials say

August 19, 2007|By New York Times News Service

WASHINGTON -- Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include - without court approval - certain types of physical searches of U.S. citizens and the collection of their business records, Democratic congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently and that there was a continuing debate over the meaning of the legislative language. But they said that the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought. It also offers a case study in how changing a few words in a complex piece of legislation has the potential to fundamentally alter the basic meaning of the Foreign Intelligence Surveillance Act, a landmark national security law. Two weeks after the legislation was signed into law, there is still heated debate over how much power Congress gave to the president.

It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month's congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

"We did not cover ourselves in glory," said one Democratic aide, referring to how the bill was compiled.

But a senior intelligence official who has been involved in the discussions on behalf of the administration said that the legislation was seen solely as a way to speed access to the communications of foreign targets, not to sweep up the communications of Americans by claiming to focus on foreigners.

"I don't think it's a fair reading," the official said. "The intent here was pure: If you're targeting someone outside the country, the fact that you're doing the collection inside the country, that shouldn't matter."

Democratic leaders have said they plan to push for a revision of the legislation as soon as September. "It was a legislative over-reach, limited in time," said one congressional Democratic aide. "But Democrats feel like they can regroup."

Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the result is that the legislation may grant the government the right to collect a vast array of information on U.S. citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.

In effect, they say, the legislation significantly relaxes the restrictions on how the government can conduct spying operations aimed at foreigners while also sweeping up information about Americans.

"This may give the administration even more authority than people thought," said David Kris, a former senior Justice Department lawyer in the Bush administration and a co-author of a book on surveillance law.

Several legal experts said that by redefining the meaning of "electronic surveillance," the new law undercuts the legal underpinnings in several provisions in the Foreign Intelligence Surveillance Act, indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches, and so-called "trap and trace" operations, analyzing specific calling patterns.

If the administration meets several specific conditions in the new legislation, Democratic congressional aides and outside legal experts worry that the government could, for example, seize the computer or other communications-related property of an American in Los Angeles who may have been in contact with a person in Saudi Arabia - if the person in Saudi Arabia is the subject of the government's interest.

Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns about the wide scope of the new legislation were "speculative." But she declined to discuss specific aspects of how the legislation would be enacted.

The legislation amends FISA but is set to expire in six months.

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