Terror Watch: Fixing a Key Spy Statute

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.

Congressional and administration officials say the inter- and intraparty disputes on the telecom immunity issue are so tangled and intense that it is close to impossible for both houses of Congress to agree on a permanent new electronic-surveillance bill before the current bill expires on Feb. 1. Consequently, parties on both ends of Pennsylvania Avenue are privately discussing new temporary fixes.

One such fix, which some Senate Democrats and administration officials appear to favor, would involve temporarily extending the existing electronic-surveillance law, known as the Protect America Act, for one month beyond the current Feb. 1 expiration date. This would give Congress more time to work out differences—and allow the Bush administration more time to lobby against the House bill and for its preferred provisions in the Senate bill.

Jim Manley, a spokesman for Senate Majority Leader Harry Reid, said that Reid backed the idea of a one-month extension. Manley noted that the Senate is not even scheduled to be back in session until Jan. 22, leaving little time for debate and negotiations between House and Senate over their competing bills.

Some Senate Democrats are discussing another alternative: seeking a temporary extension to the current law for a year. The point of this option, as explained by a congressional official who asked for anonymity when discussing sensitive deliberations, would be to postpone the whole process of revising the electronic-surveillance law until after the next president is inaugurated. Democrats in favor of such a move believe it would kick the decision down the road until, they hope, the party has control of the White House as well as both houses of Congress—strengthening the Democrats' hand in writing a surveillance bill much more to their liking.

But some Democrats on Capitol Hill question whether the current GOP minority--which, in the Senate, at least, has the power to block legislation—would accept a one-year extension to the current law. These Democrats fear that punting on the issue until after the next Inauguration would lead to GOP charges that Democrats were being unpatriotic and impeding the War on Terror. Some Democrats remember all too well last summer, when the GOP used such tactics to force Congress to pass the current Protect America legislation, which critics regard as flawed and overly permissive.

Shortly before Christmas, National Intelligence Director McConnell issued a statement saying that he had spoken with Senator Reid, "expressed the critical need for permanent legislation," and also voiced "significant concerns about temporary extensions of the Protect America Act." Today a spokeswoman for McConnell reiterated that "Our preference is to have a permanent, long-term fix."

Manley said that congressional Democrats remain wary of the alleged pressure tactics the administration and Capitol Hill Republicans used to pass the current law. Senator Reid is pressing the administration to grant all senators access to highly classified documents outlining exactly what the current Terrorist Surveillance Program entails—and the legal basis under which it is being conducted. The Bush team initially restricted detailed knowledge of the program to only a handful of top congressional leaders. Only after the Democrats made a fuss did the administration allow all members of both the House and Senate Intelligence and Judiciary Committees access to the critical documents.

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