First Senate, Then House Give Bush More Power to Spy

House Passes Changes in Eavesdropping Program

By CARL HULSE and EDMUND L. ANDREWS,
New York Times, Aug. 5, 2007

WASHINGTON, Aug. 4 — Under pressure from President Bush, the House gave final approval Saturday to changes in a terrorism surveillance program, despite serious objections from many Democrats about the scope of the executive branch’s new eavesdropping power.

Racing to complete a final rush of legislation before a scheduled monthlong break, the House voted 227 to 183 to endorse a measure the Bush administration said was needed to keep pace with communications technology in the effort to track terrorists overseas.

“The intelligence community is hampered in gathering essential information about terrorists,” said Representative Lamar Smith, Republican of Texas.

The House Democratic leadership had severe reservations about the proposal and an overwhelming majority of Democrats opposed it. Speaker Nancy Pelosi said the measure “does violence to the Constitution of the United States.”

But with the Senate already in recess, Democrats confronted the choice of allowing the administration’s bill to reach the floor and be approved mainly by Republicans or letting it die.

If it had stalled, that would have left Democratic lawmakers, long anxious about appearing weak on national security issues, facing an August spent fending off charges from Republicans that they had left Americans exposed to threats.

Despite the political risks, many Democrats argued they should stand firm against the initiative, saying it granted the administration far too much latitude to initiate surveillance without judicial review.

They said the White House was using the specter of terrorism to weaken Americans’ privacy rights and give more power to Attorney General Alberto R. Gonzales, an official Democrats say has proved himself untrustworthy.

“Legislation should not be passed in response to fear-mongering,” said Representative Rush D. Holt, Democrat of New Jersey.

The legislation makes changes to the Foreign Intelligence Surveillance Act, known as FISA.

There was no indication that lawmakers were responding to new intelligence warnings. Rather, Democrats were responding to administration pleas that a recent secret court ruling had created a legal obstacle in monitoring foreign communications relayed over the Internet.

They also appeared worried about the political repercussions of being perceived as interfering with intelligence gathering. But the disputes were significant enough that they are likely to resurface before the end of the year.

Democrats have expressed concerns that the administration is reaching for powers that go well beyond solving what officials have depicted as narrow technical issues in the current law.

In a statement issued late Saturday, Mr. Bush said he would “sign this legislation as soon as it gets to my desk.” The Senate approved its version of the bill on Friday.

In seeking changes to the surveillance program, the administration said it was being prevented from monitoring communications of terrorism suspects overseas in a period of apparently heightened activity. Other Republicans called for swift House action as well.

“I can’t imagine they would take a monthlong vacation without fulfilling their obligation to keep America safe,” Senator Mitch McConnell of Kentucky, the Republican leader, said before the House approved the bill.

Senior House Democratic leaders said they were resigned to the measure, which will be in force for six months. But they said they would not wait that long before trying to come up with a more acceptable, permanent change in the Foreign Intelligence Surveillance Act.

“There is no way we are ever going to wait six months,” said Representative Rahm Emanuel of Illinois, chairman of the House Democratic Caucus.

The surveillance measure came up in the House late Saturday, after lawmakers had approved an energy efficiency measure and were preparing to pass a major Pentagon spending bill and approve $255 million for rebuilding the collapsed bridge in Minnesota.

In the final vote, 41 Democrats joined all but 2 Republicans in backing the measure; 181 Democrats opposed it.

Some Democrats complained they were being bullied into hasty action on the intelligence bill by the administration and Congressional Republicans. They said the House should stick with a proposal defeated Friday that kept more judicial control over the program than the administration wanted.

House Republicans pointed to Senate’s approval of the measure, which was supported by most Democratic members of the panel that oversees intelligence operations.

“If it is good enough for Senate Intelligence Committee Democrats, it should be good enough for House Democrats,” said Representative Roy Blunt of Missouri, the second-ranking Republican.

Representative Peter Hoekstra of Michigan, the senior Republican on the Intelligence Committee, accused Democrats of dithering for months without giving “the intelligence community tools they need while we are at heightened risk.”

Administration officials had been quietly pushing Congress to pass a “modernization” of the current law, arguing that technological changes — especially the expansion of telephone calls over the Internet — had made the current rules outdated.

One major issue, apparently raised in secret by judges overseeing the program, is that many calls and e-mail messages between people outside the United States are routed over data networks that run through the United States.

In principle, the surveillance law does not restrict eavesdropping on foreign-to-foreign communications. But in practice, administration officials contend, the path of those calls through this country means the government cannot monitor them without a warrant.

But Democratic lawmakers have been deeply suspicious that the Bush administration was seeking a broader and more controversial expansion of surveillance authority by making changes that were vague on important issues.

Representative Silvestre Reyes, Democrat of Texas and chairman of the House Intelligence Committee, said Friday that the bill the administration wanted would allow wiretapping without warrants as long as it was “concerning a person abroad.” As a result, Mr. Reyes said, the law could be construed as allowing any search inside the United States as long as the government claimed it “concerned” Al Qaeda.

Democrats said their suspicions had been fueled in part by the White House’s repeated reluctance to ask Congress for technical changes addressing issues that should have been apparent long ago.

In a recent letter to a Republican on the committee, Representative Heather A. Wilson of New Mexico, Mr. Reyes noted that Congress had updated the FISA law eight times since the Sept. 11 attacks.

“You repeatedly claim that FISA is woefully outdated,” Mr. Reyes wrote. “Neither you nor the administration raised concerns during consideration of those bills that the statutory changes proposed were inadequate.”

For years, but especially since the attacks, Democrats on the intelligence oversight committees have been loath to do anything that might provoke charges of tying up the intelligence agencies in “outdated” restrictions.

But relations have steadily soured since the public disclosure of the warrantless surveillance program 18 months ago. White House officials have repeatedly argued that the president has broad authority to carry out such programs without explicit permission from Congress, even if the programs appear to violate long-standing legal restrictions.

The mistrust has gone in both directions. Administration officials contend that any effort to have Congress address even straightforward issues prompts Democrats to seek all manner of new restrictions.

But Democrats, and some Republicans, say the administration has worsened the distrust by refusing to be provide detailed information to lawmakers and by offering what appear to have been misleading answers to Congressional queries.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, has criticized Mr. Gonzales, the attorney general, for insisting that the Justice Department never had any internal disputes about the legality of the surveillance program.

Several top Justice Department officials, including the director of the F.B.I., Robert S. Mueller III, have publicly contradicted Mr. Gonzales’s testimony and told lawmakers that senior officials threatened in 2004 to resign over the disputes.