House Panel Questions Eavesdropping Program

The House Judiciary Committee questions the Director of National Intelligence and other witnesses about whether civil liberties are protected when federal agents eavesdrop on terrorism suspects.

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The White House sends two of its national security heavyweights to Capitol Hill today. Intelligence Chief Mike McConnell and Kenneth Weinstein of the Justice Department's National Security Division testified before the House Judiciary Committee. Their mission: to get a new spying law that the president will like.

NPR's Ari Shapiro reports.

ARI SHAPIRO: The debate over a new spying law essentially boils down to the question: When does the president have to get a court warrant to spy on someone in the U.S.

Congress passed a temporary spying law in August that gives courts a smaller role than they used to have.

House Judiciary Committee Chairman John Conyers called the legislation...

Representative JOHN CONYERS (Democrat, Michigan; Chairman, House Judiciary Committee): ...this broken law.

SHAPIRO: While Ken Weinstein of the Justice Department called it...

Mr. KENNETH WEINSTEIN (Assistant Attorney General, National Security Division, Justice Department): ...significant step in the right direction.

SHAPIRO: The new law says the government does not need a court order to wiretap someone overseas even if that person is talking to an American, as long as the American is not the target of the wiretap. That's a change from the old Foreign Intelligence Surveillance Act or FISA.

Last month, Director of National Intelligence Mike McConnell told a newspaper that fewer than 100 Americans' phones and e-mails have been tapped. Chairman Conyers wanted to get more specific.

Rep. CONYERS: Let me put it like this. How many have been overheard? I mean, you've got minimization techniques. You wouldn't have it if somebody wasn't being overheard.

SHAPIRO: Minimization techniques tell the spying agencies to throw out a wiretap if they pick up something they shouldn't, like a conversation between two Americans.

McConnell could not tell the chairman exactly how many Americans have been unintentionally overheard.

Mr. MICHAEL McCONNELL (Director, National Intelligence): It's a very small number considering that there are billions of transactions everyday. So, we look at it in...

Rep. CONYERS: Well, would it be asking too much for this committee all cleared for top secret to be given a briefing on it?

Mr. McCONNELL: Sure. We have to do that.

Rep. CONYERS: We have to know.

SHAPIRO: Democrats are also worried that the temporary law's broad wording lets the president search Americans' homes and open their mail without a warrant.

The administration witnesses said that's not how they interpret the law. So, Democrat Howard Berman asked: If we're writing a new law anyway, why not explicitly say that mail and property searches are not allowed without a court order?

Representative HOWARD BERMAN (Democrat, California): Those things that you don't think you're authorized to do and aren't seeking authorization to do, we specifically and affirmably indicate, clearly you can't do.

SHAPIRO: The Justice Department's Ken Weinstein was noncommittal.

Mr. WEINSTEIN: Perfectly happy to engage with you on that that process, and I Guess I would just say...

Rep. BERMAN: A healing process.

Mr. WEINSTEIN: In the context, though, of the recognition that there's going to be - there is ample congressional oversight. There's FISA court oversight.

SHAPIRO: Congressman Berman deadpanned: I don't feel overwhelmed with the ampleness of the congressional oversight at this particular moment.

Democrats also disagreed with the witnesses about how much trouble it really is to get court approval for a wiretap. Applications are almost never turned down and they can get retroactive approval.

National Intelligence Director McConnell recently said each wiretap application takes 200 hours of work. Democrat Jerry Nadler pointed to a recent testimony by the man who runs the Justice Department office in charge of submitting warrant applications.

Representative JERROLD NADLER (Democrat, New York): What he was saying is that most of the work that has to be done has to be done whether you need a warrant or not.

SHAPIRO: McConnell said he fundamentally disagrees with that description. Of course, there was no clear resolution. But the temporary spying law doesn't expire for another five months, and there will be many more hearings to hash out these issues before then.

Ari Shapiro, NPR News, Washington.

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