#6 What should be the U.S. policy concerning wiretapping without a warrant?     (Send your comments to sdheritage@cox.net)

 

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WIRETAPPING, FORUM ISSUE #6—Shoshana Bryen of the Jewish Institute for National Security Affairs filed the second part of her series, which began on these pages yesterday.  It follows:   (Part one is below)

WASHINGTON, D.C. (JINSA)— National Security Agency (NSA) Director McConnell's request for Congress to pass legislation for surveillance of targets taking into account improved cable and fiber optic technology was, at first, non-controversial. The administration sent a bill to Capitol Hill in April and the Chairman of the Senate Intelligence Committee pledged to move forward. In exchange for support, however, Senate Democratic leadership wanted the release of long-sought documents about previous wiretapping policy. The administration had previously declined to provide the documents, but by attaching the request to the administration's request, Democrats apparently thought they trade. The administration declined again and the process stalled.

In late July, when McConnell met with leaders of both parties and asked urgently for approval of a redrafted bill, he brought evidence of terrorist activity that spurred the Hill to action. But as they were working on the legislation, there arose three Democratic hiccups: the difference between surveillance "directed at" and surveillance "concerning" targets; dealing with targets outside the U.S. talking to people in the U.S.; and a provision, according to The Washington Post, that warrantless wiretapping only be used against foreign suspects "tied to terrorist groups."

The first had to do with mistrust of the administration; Democrats said the broader word gave NSA too much leeway. The second was an administrative nightmare, requiring termination of surveillance if a suspect abroad talked to someone in the United States - a terrorist could quickly follow a call to the U.S. with the call he REALLY wanted to make, hoping we weren't back on the line. Or a foreign terrorist could give a person in the U.S. information to pass on to others. The third is silly on its face - the universe of suspect people not "tied" (whatever that means) to known terrorist groups (new ones are constantly emerging from splinters of old ones) must be substantially larger than the universe of card-carrying terrorists.

All were rejected and the Senate bill passed 60-28 (including 14 Democrats). In the House, 41 Democrats joined the Republicans. But this is not over.

The measure is temporary - six months, that's all. Only hours after passage, House Speaker Nancy Pelosi denounced parts of the bill, saying she wouldn't wait six months and plans to bring up new legislation "as soon as possible," presumably in September.

This reeks of the same strange logic as sending Gen. Petraeus to Iraq with six months to implement new policies, but not waiting half that long to demand changes. At some point, the Democrats should act on the understanding that if NSA fails to protect us, or Gen. Petraeus fails to stabilize Iraq, our country - not only the President or his administration - will pay the price.

The surveillance legislation is a window to people who think the White House is the enemy and appear not to believe terrorists see no distinction between the White House, the Democratic leadership and the rest of us.

 

Behind the scenes in the wiretapping debate

(Editor's Note: We offer today's column by Shoshana Bryen of the Jewish Institute for National Security Affairs as fuel for thought on the issue of wiretapping and national security.   We will run part two of her reportage tomorrow.)

By Shoshana Bryen

WASHINGTON, DC (JINSA)—In principle it seems the right - and the duty - of the government to try to find terrorists abroad before they act, before they come here, and/or before they instigate a terrorist act here. Surveillance is crucial.

Under the 1978 FISA (Foreign Intelligence Surveillance Act) law, U.S. intelligence services could listen without a warrant to foreign-to-foreign communications relayed - as most calls then were - wirelessly. Technology advances however, and today 90 percent of global communications pass through fiber optic cable. The National Security Agency (NSA) has been monitoring foreign-to-foreign communications by tapping into the U.S.-based cables as transmissions pass through our territory on their way back abroad.

NSA considered the routing to be incidental to the fact that the communications were between people located abroad.

Two court rulings in the spring stopped the process - the first challenged the collection of data from wires even when the target was a terrorist source; the second ruled that warrants from the FISA court were required for any wire-based communication surveillance. NSA immediately began asking for warrants - thousands of them - but the court could not keep up. "We needed thousands of warrants, but the most we could do was hundreds," said one NSA official. According to The Washington Post, NSA Director Michael McConnell told the Senate Intelligence Committee, "We are actually missing a significant portion of what we should be getting."

NSA appealed to the court, which said it was only enforcing the law and that a legislative fix was required to restore the permissibility to intercept foreign-to-foreign communications without a warrant.

In April, the administration sent a bill to Congress to close the technological gap in surveillance policy. The Democratic leadership planned to put off the debate until after the summer, but in August, McConnell came before a closed group of senators from both parties with what was considered important information about terrorist activity and a precipitous decline in American ability to keep pace with surveillance. Members of both parties agreed that immediate - if temporary - action was required.

The House and then the Senate passed a revised version of the law as they were headed out the door, including an interesting proviso that would "allow the interception and recording of electronic communications involving, at least in part, people 'reasonably believed to be outside the United States' without a court's order or oversight, according to The Post. This takes into account the fact that cell phones can be used across continents.

So, you may think, great. When push and shove came together, the Democrats and Republicans listened to the experts, and fashioned legislation that gave the administration the powers it sought to protect the country. Not great, because politics were involved every step of the way and the real battle is set up for September. We'll have more to say tomorrow.

 

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FORUM QUESTION #6  What should be the U.S. policy concerning wiretapping without a warrant?