Bush May Have Lost Chance to Tailor Bugging Law

The Bush administration's decision to eavesdrop on some domestic phone conversations without a court order spurred complaints, but it also led to proposals to adjust federal law to allow precisely such surveillance. Changes in the law, known as FISA, did not pass the Republican-led Congress; they now face a new landscape under Democratic control.

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It's been a year since President Bush confirmed that the National Security Agency was eavesdropping on American phone calls without court oversight.

NPR's Ari Shapiro reports on what's ahead.

ARI SHAPIRO: In the big picture, everybody agrees about domestic spying. Everyone wants to listen in on the terrorists. Everyone sees a role for the courts. Everyone thinks the law that oversees domestic spying, FISA, is out of date. It's analog rules in a digital world, according to one expert.

Some top Republicans and Democrats, who rarely agree in public, all sounded like they were reading from the same script at a recent American Bar Association conference. This was Benjamin Powell, the head lawyer for the director of National Intelligence.

BENJAMIN POWELL: FISA was simply not designed with our current worldwide communications structure in mind.

SHAPIRO: And here's the top Democratic lawyer on the House Intelligence Committee, Jeremy Bash.

JEREMY BASH: We were and I think we are and will be prepared to update FISA, to make it technology neutral, to bring it into the 21st century, as they say.

SHAPIRO: The Department of Justice is on board, too. Ken Wainstein runs the DOJ's new national security division.

KEN WAINSTEIN: I know there's a strong desire on the part of the administration, on part of the department, to get legislation - whatever form - on whatever legislated vehicle it comes that will help to bring FISA into the 21st century. And it's sort of a catch phrase, but it's actually very meaningful.

SHAPIRO: So if everybody agrees, what's the holdup? Well, put on your decoder ring as we go behind that show of goodwill. Here's Powell from the Director of National Intelligence office.

POWELL: All communications that touch U.S. soil should not have to be treated equally. We do not enhance our civil liberties by requiring a FISA court order to collect communications between two persons overseas that happened to get routed or touched U.S. facilities.

SHAPIRO: For example, imagine somebody in Saudi Arabia sends an e-mail to someone in Pakistan, if they're both using Yahoo! accounts, the communication is technically based in the United States. Today, the government would need a FISA warrant to eavesdrop. The administration thinks that's unnecessary. That may seem like something everyone could agree on.

But Michael Woods, who used to be chief of national security law of the FBI, says reality is never as simple as the hypothetical scenarios.

MICHAEL WOODS: It's never one guy in Pakistan, one guy in Saudi Arabia, and you know that.

SHAPIRO: He says more often investigators will know that one guy is in Pakistan and they'll know he's communicating with someone else over Yahoo!.

WOODS: But we don't exactly know where that person is accessing their Yahoo! account from. We don't know exactly who they are, so are we really dealing with foreign to foreign? It could be a person accessing from - you know, there's always nuances.

SHAPIRO: Which introduces the risks of eavesdropping on people in the United States. Jim Dempsey is policy director for the Center for Democracy and Technology.

JIM DEMPSEY: Modernization should not equal a diminishment in the rights of American citizens. Yes, the Internet is global, of course, but that doesn't mean that every American that uses the Internet should be subject to warrantless government surveillance.

SHAPIRO: Oh, yes, warrantless government surveillance - the elephant in the room. Although in this case, most decision makers have not been allowed to see the elephant. In Congress, only the House and Senate intelligence committees have been briefed on what the administration calls the terrorist surveillance program.

Vermont Senator Patrick Leahy will chair the Senate Judiciary Committee when Congress reconvenes. He says he wants to amend FISA, but he won't do it in the dark.

PATRICK LEAHY: I don't think it's possible to craft laws under FISA that really work if we don't know what they're doing. I mean, you can't have a - say we'll pass a law that we have no way of knowing whether you're following the law once we pass it.

SHAPIRO: And that could be a major sticking point with the administration. When Senator Arlen Specter chaired the Judiciary Committee, he fought hard to get briefed on the program and the White House wouldn't budge. And he was a Republican. Specter proposed legislation anyway. The White House negotiated and accepted it, but it was never taken up in the waning months of the Congress.

If Democratic leaders insist on briefings and the White House keeps refusing, it could be very difficult to pass any kind of legislation modernizing FISA, which means even though everybody agrees that its time to change the law, the 110th Congress could leave things just where the 109th did.

Ari Shapiro, NPR News, Washington.

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