Officials defend spy law
The Bush administration rushed to defend new espionage legislation Monday amid growing concern that the changes could lead to increased spying by U.S. intelligence agencies on American citizens.
In a public relations push to counter criticism of the new law, senior administration officials cited a combination of legal barriers and resource restrictions that they said would keep the government from sifting through e-mails and phone calls of Americans without obtaining court warrants first.
But officials declined to provide details about how the new capabilities might be used by the National Security Agency and other spy services. And in many cases, they could point only to internal monitoring mechanisms to prevent abuse of the new rules that appear to give the government greater authority to tap into the traffic flowing across U.S. telecommunications networks.
Officials rejected assertions that the new capabilities would enable the government to cast electronic “drift nets” that might ensnare U.S. citizens, even if by accident.
“We’re really talking about targeting people, directed targeting at people overseas,” said a senior administration official who was among three authorized to discuss the legislation -- on the condition they not be identified -- in a conference call with reporters on Monday. “If the target is overseas, you don’t need a warrant. If the target is in the United States, you do.”
The White House also took specific aim at concerns that the new legislation would amount to the expansion of a controversial -- and critics contend unconstitutional -- warrantless wiretapping program that President Bush authorized after the 9/11 attacks.
White House Deputy Press Secretary Tony Fratto called such assertions “unfounded” and “highly misleading.”
But intelligence experts said there were an array of provisions in the new legislation that appeared to make it possible for the government to engage in intelligence-collection activities that the Bush administration officials were discounting.
“They are trying to shift the terms of the debate to their intentions and away from the meaning of the new law,” said Steven Aftergood, an intelligence policy analyst at the Federation of American Scientists.
“The new law gives them authority to do far more than simply surveil foreign communications abroad,” he said. “It expands the surveillance program beyond terrorism to encompass foreign intelligence. It permits the monitoring of communications of a U.S. person as long as he or she is not the primary target. And it effectively removes judicial supervision of the surveillance process.”
The White House effort to tamp down criticism underscores the stakes for the administration, which has lobbied for more than a year for sweeping changes to the nation’s electronic espionage laws. Even though passage of the bill over the weekend was seen as a victory for the White House, the legislation is set to expire in six months so that Congress can revisit the issue.
Under the new law, U.S. spy agencies are free to intercept the e-mails and phone calls of any person “reasonably believed to be located outside of the United States,” even if the target is a U.S. citizen or is communicating with someone within U.S. borders. The U.S. attorney general and the director of national intelligence would make that determination, although the procedures they used to do so would be subject to review by a special court called the Foreign Intelligence Surveillance Court.
The law also compels American telecommunications companies to cooperate with the government and provide access to their networks, which account for a disproportionate share of global communications traffic -- including calls and e-mails that begin and end in other countries.
Administration officials said the changes were designed to fix flaws in a 1978 intelligence law passed before the advent of the Internet, cellphones and other modern technologies. Despite the revisions, Fratto said, protections for U.S. citizens were kept intact.
“Court approval is required for the government to target an individual located in the United States,” he said, “and nothing in the new law changes that.”
But the administration officials who were granted permission to discuss the law did not go into detail on how foreign targets might be defined or identified.
It remains unclear, for example, whether U.S. spy agencies can sort through phone and e-mail records furnished by U.S. telecommunications companies, searching for suspicious calling patterns. The officials declined to discuss such “data mining” operations or to address whether the NSA could capture all of the calls and e-mails in or out of a particular region, such as Pakistan’s western province.
“Any type of program really aimed at just sweeping up Americans’ communications” would have to be consistent with constitutional protections, one administration official said. The official added that information inadvertently collected from or about U.S. residents would be removed from intelligence reports through minimization procedures.
The White House pressed for the new law after the FISA court ruled earlier this year against part of the administration’s eavesdropping program. The officials declined to elaborate about the nature of that ruling, which other sources have said required the government to obtain warrants before intercepting foreign-to-foreign calls or e-mails that traveled through the United States.
But the administration officials offered some new details on the FISA warrant system, saying that the process for obtaining court orders often required submitting lengthy applications that must be assembled with the help of intelligence analysts pulled away from other counter-terrorism tasks.
“We have to submit a packet many pages long, maybe 50 pages,” one official said. “We’re taking some of our most critical resources off-task to put these things together.”