The Rules for Eavesdropping

Congress returns to the electronic surveillance controversy.


NSA at Fort Meade in Maryland conducts eavesdropping.

By + More

When Congress reopens a contentious effort to update the 1978 Foreign Intelligence Surveillance Act this week, the intelligence community would prefer to have it take place behind closed doors. But the debate over how to reform FISA—which governs electronic surveillance of terrorist and other intelligence targets—has become an increasingly public debate about how to balance U.S. counterterrorism tactics with the privacy rights of Americans.

For most of the past three decades, the National Security Agency has been required to obtain warrants from the top-secret FISA court before eavesdropping on Americans for intelligence purposes. But earlier this year, a FISA court ruling created new restraints for NSA, suddenly requiring officials to get a warrant to intercept foreign-to-foreign communications if they pass through a U.S. network (a frequent occurrence today). Applying for a warrant, which can run up to 90 pages, is time consuming, and Director of National Intelligence Mike McConnell told Congress that the change reduced by two thirds the amount of useful intelligence coming through FISA on groups like al Qaeda.

In response, under intense pressure from the White House this summer, Congress passed hasty stopgap legislation that temporarily gives NSA greater latitude. The law expires on February 5, but Congress is already trying to reach a more permanent compromise.

Credibility. It comes down largely to a question of credibility. The Bush administration and U.S. intelligence agencies, naturally, want as few impediments as possible to their ability to collect foreign intelligence. For them, FISA reform is about removing any obstacles to NSA's ability to eavesdrop on foreigners overseas, even if they contact somebody inside the United States.

Democrats, for their part, have made it clear that they don't trust the Bush administration. This skepticism stems largely from revelations that shortly after 9/11, Bush approved a controversial NSA program to conduct warrantless wiretapping of some Americans. Democrats acknowledge that FISA needs to be updated to account for new technologies, but they worry that even the stopgap has created room for further abuse. "We have unnecessarily put liberty in jeopardy by handing unchecked power to the executive branch," says Rep. Silvestre Reyes, the chairman of the House Intelligence Committee.

Civil liberties advocates, as well as some Democrats, are seeking more active oversight by the FISA court when NSA picks up conversations of Americans, even if the target is foreign. Intelligence officials oppose requiring individual warrants when Americans might be involved incidentally.

There is room for compromise. Both sides have indicated they could accept a law requiring the FISA court to approve NSA's procedures governing intercepts involving Americans. NSA has a long history of using "minimization" procedures to conceal the identities of Americans who are swept up in eavesdropping operations targeted at foreigners.

Perhaps the toughest battle will come over Bush's request to grant telecommunications firms immunity from lawsuits over their role in the warrantless wiretapping program. Some 40 lawsuits have been filed, and Democrats are using them as a lever to demand more information about the program.