As Bush and Democrats Spar, Spy Law Lapses

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A temporary version of the law allowing intelligence agencies to conduct surveillance of terrorism suspects without a warrant expired Saturday. A key sticking point is whether to grant retroactive immunity to telecom companies that cooperate with the government.

RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVEN INSKEEP, host:

And I'm Steve Inskeep.

Here's an update on the expiration over the weekend of a temporary spying powers law. The Bush administration is still battling with congressional Democrats. Rather than pass the new law that President Bush had sought, House Democrats defied him by leaving town for a 10-day recess and letting the law lapse. The question is whether its expiration will really hamper government spying efforts.

And NPR's David Welna has more.

DAVID WELNA: Though he'd already left on his tour of Africa, President Bush's recorded voice continued berating congressional Democrats over the weekend in his weekly radio address. It aired just hours before the so-called Protect America Act expired at midnight Saturday.

President GEORGE W. BUSH: Because Congress failed to act, it will be harder for our government to keep you safe from terrorist attack.

WELNA: The president's argument goes like this: The government relies on private U.S. phone companies to help it monitor suspected terrorists, and those communication carriers now face dozens of lawsuits for allegedly having done so without a court order.

President BUSH: Now these companies will be increasingly reluctant to provide this vital cooperation because of their uncertainty about the law and fear of being sued by class-action trial lawyers.

Admiral MICHAEL MCCONNELL (Director, National Intelligence): The entire issue here is liability protection for the carriers.

WELNA: That's director of National Intelligence, Admiral Michael McConnell, on Fox News Sunday. He said the law hurriedly passed by Congress last August encouraged phone companies to keep cooperating with the government, since it shielded them from new lawsuits.

Admiral MCCONNELL: The issue now is there's uncertainty because the law's expired, and the law of August - the Protect America Act - allowed us to compel support from a private carrier.

WELNA: Now, those phone companies can only be compelled to cooperate under a court order. But Democrats say that should not be a problem. In their party's response to the president's radio address, Rhode Island Democrat Senator Sheldon Whitehouse said that both the expired Protect America Act and the ongoing Foreign Intelligence Surveillance Act - or FISA - should allow government wiretapping programs to continue.

Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): As the president is well aware, existing surveillance orders under that law remain in effect for a year. And the 1978 FISA law remains available for new surveillance orders.

WELNA: A backlog in processing new surveillance orders by the FISA courts was the main reason given last August for passing the now expired Protect America Act, which let administration officials simply bypass those courts.

Senate Republican Leader Mitch McConnell warns that law's expiration could have serious consequences.

Senator MITCH MCCONNELL (Republican, Kentucky; Senate minority leader): I'm told there will not be the ability to go up on new targets without going back to the same old problem we had before August, which was going through this whole convoluted FISA and warrant process.

WELNA: But currently there is no backlog. If warrants are obtained, the phone companies that cooperate are already given immunity under the FISA law. House Majority Leader Steny Hoyer says getting those warrants should be easy.

Representative STENY HOYER (Democrat, Maryland; House Majority Leader): The only issue here is whether or not the administration has to go to the trouble to go to the FISA court, which it has done so over 16,000 times - not this administration but previous administrations - and only had its request rejected five times.

WELNA: Still, Republicans are not about to let Democrats off the hook for defying the president on a national security issue. Again, Senate Minority Leader Mitch McConnell

Senator MCCONNELL: Obviously, we're all going to be talking about this issue in our states and in our districts. And I think that it will be a subject of great interest to the media around the country. I think it's a hot topic.

WELNA: And it's one that will almost certainly show up in presidential debates later this year.

David Welna, NPR News, the Capitol.

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Intel Chief: Telecom Immunity a Security Issue

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The Bush administration and House Democrats are locked in a standoff over an electronic surveillance bill passed by the Senate. The bill provides retroactive immunity to telecom companies that helped the government gather intelligence after the Sept. 11 attacks. The current rules expire Saturday.

The president warns that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and says that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.

Mike McConnell, director of national intelligence, told Renee Montagne the main issue is liability protection for the private sector.

"We can't do this mission without their help," he said. "Currently there is no retroactive liability protection for them. They're being sued for billions of dollars."

He said the lawsuits are causing them to be less cooperative and that their actions are not illegal.

"The Senate committee that passed the bill examined the activities of the telecom companies and concluded they were not violating the law," he said.

If the current law were extended while the House and Senate work out their differences, there would be no retroactive protection for the companies, McConnell said, "and we'd lose the capability to protect the country."

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