A Spy Scramble

Faced with the growing likelihood that Congress will not meet a looming deadline to approve critical electronic-eavesdropping legislation, the Bush administration is working on a short-term fix--a temporary extension to a law enacted last summer amid Democratic complaints that the White House had muscled the bill through.

The Office of the Director of National Intelligence, which is the administration's principal negotiator with Congress on the surveillance legislation, says it would much prefer that Congress move forward with a permanent extension of the spy law. Privately, however, intel czar Mike McConnell has acknowledged that there may be little chance of winning passage of a permanent new bill before the current law expires.

On Feb. 1, the stopgap electronic-surveillance law passed last summer is set to expire. If Congress does not approve a replacement law by then--or doesn't temporarily extend the existing law—then intelligence officials and congressional experts say it will become very difficult for intelligence agencies to launch new surveillance programs against fresh sets of targets. However, spy programs launched under the current, expiring, legal authority would be allowed to continue, intelligence officials assert.

The problem in devising a permanent legal framework for antiterrorist electronic spying is that the House and Senate, both under Democratic control, are nonetheless at odds with each other over important provisions of a new law. One key issue, which is the subject of an intense lobbying campaign by both the administration and powerful industry interests, is whether telecommunications companies, which participated in controversial electronic spying efforts launched by the Bush White House after 9/11, should be given immunity from private legal claims.

Telecom companies are facing dozens of lawsuits claiming damages for the companies' alleged participation in what the administration calls its "Terrorist Surveillance Program," an expanded electronic spying effort undertaken following the 2001 terrorist attacks. This program included the monitoring of messages to and from contacts inside the United States of suspected terrorists abroad. Public disclosure of the secret program generated controversy because the domestic monitoring program did not have special authorization from Congress or warrants from the special court set up under the post-Watergate Foreign Intelligence Surveillance Act established to protect U.S. citizens and residents from unauthorized government spying.

A substantial bipartisan majority of the Senate Intelligence Committee has approved a new six-year electronic-surveillance bill that includes immunity from private lawsuits for telecom companies. However, the Democratic majority in the House is moving forward with a parallel bill that does not include any immunity provision. The House version has the support of a faction of liberal Democrats in the Senate, who staged a brief filibuster on the issue when leaders in that chamber tried to bring the surveillance-extension bill to the Senate floor late last year.