Congress Takes Up New Surveillance Law

Balance between privacy rights and national security concerns remains elusive.

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Suzanne Spaulding, former CIA assistant general counsel testifies during a House Judiciary Committee hearing on Capitol Hill.

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It often takes months—if not years—for Congress to debate changes to new legislation. But just days into the start of the fall session, members are already gearing up for a serious overhaul of the newly passed changes to the Foreign Intelligence Surveillance Act.

From testimony at today's hearing before a House Judiciary subcommittee, it seems clear that the debate will hinge on how best to balance individual privacy rights with national security concerns—a tension likely only to heat up in the coming months.

"Granting these tools cannot and should not involve abdicating our responsibility...to protect our precious rights and liberties," Chairman John Conyers Jr., a Michigan Democrat, said today.

Yet how Congress will construct—and pass—new legislation with these protections will not be easy.

The recent debate over the FISA bill began with a simple government request to modernize the 1978 legislation after an adverse court ruling indicated that the government would need warrants for eavesdropping on foreign-to-foreign communication if it was routed through the United States. This posed a particular challenge for the government's access to E-mails, which are regularly sent through U.S.-based servers. However, the bill that emerged from Congress in August was no quick fix. The legislation broadly expanded the government's intelligence powers to eavesdrop domestically without court approval, an authority that has aroused opposition among civil libertarians.

One key question is how much review the government's eavesdropping should be subjected to. Former CIA Deputy General Counsel Suzanne Spaulding said the biggest problem was not just that the changes allow the government to listen to a suspected terrorist talk to someone in the United States without a warrant but that the revisions "provide neither clear guidance nor the mechanisms to ensure careful oversight."

Of course greater supervision could tax government resources, a development not to be taken lightly, noted former Rep. Bob Barr, particularly because the intelligence leadership has said it takes 200 hours to put together a single warrant.

Yet, said Morton Halperin, director of the Open Society Institute, Congress may be able to come up with a compromise by expanding the government's emergency powers, which give it a short window to begin eavesdropping before getting retroactive court approval.

Still, the FISA fight will generate heated interest from telecommunications companies that are seeking retroactive immunization from Congress for aiding the Justice Department in its warrantless wiretapping. But there is already opposition from lawyers like Spaulding, who said such a move could undermine the rule of law because telecommunications companies had a clear way to avoid liability under the original FISA bill: to get a letter or court order authorizing the release of information.

Despite the many disagreements, the disagreements, all sides appeared in agreement on one part of the new bill: that the government needed the power to intercept foreign-to-foreign communications technically routed through the United States. But keeping that change alone will hardly be enough to satisfy either side.