Even as Congress seeks to determine whether Alberto Gonzales lied under oath about the administration's warrantless wiretapping program, the Democrats have been negotiating with the administration to update the surveillance under the Foreign Intelligence Surveillance Act (FISA).
As The Los Angeles Times reports this morning, the alleged need for such a fix was precipitated by a FISA court judge's ruling, which restricted the ability of the National Security Agency to collect information on multiple surveillance targets under a single warrant. Additionally, the FISA Court apparently balked at allowing the NSA to collect intelligence on persons whose location inside or outside the U.S. is unknown. Indeed, there's a lot that isn't clear about the ruling -- the FISA Court meets in secret -- but the Bush administration has apparently persuaded congressional leaders that it creates a cumbersome standard for surveillance, given the extent of the threat from terrorism.
Back in January, remember, the administration brought its warrantless wiretapping program -- known as the Terrorist Surveillance Program, which monitors communications between persons in the U.S. and "known" terrorists abroad -- under the auspices of FISA, making it no longer warrantless.
The administration's first proposal, apparently, was to take the power to authorize NSA surveillance of foreign targets away from the FISA court and give it to the attorney general . The Democrats, unsurprisingly, said no -- noting that it's generally a bad idea, but especially a bad idea with this attorney general. The administration came back late yesterday with a proposal that the director of national intelligence would have to sign off too. Again, the Democrats said no.
And here's the Dem proposal, as described by The Washington Post this morning:
Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.
The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are "likely," in fact, overseas.
If a foreign target's communications to a person inside the United States reaches a "significant" number, then an court order based on probable cause would be required. It is unclear how "significant" would be defined.
This would seem to lower the bar in terms of the evidence needed to initiate surveillance. The FISA court has a probable cause standard to initiate surveillance of a member of Al Qaeda or some affiliated group. Apparently the Democrats' plan would initially lower that bar -- allowing the targeting of "suspects" -- but then require probable cause once the number of wiretaps became "significant," whatever that means.
Hopefully clarity will enter into whatever ultimate compromise bill emerges. Negotiators are racing to finish and vote on a proposal before the congressional August recess begins Monday. Unless the bill defines critical terms like "significant" and specifies what standard the government will have to meet to begin surveillance on a given target, the compromise will either snarl in congress, depriving the NSA of a tool it says it urgently needs, or protections on Americans' civil liberties will erode even further. Pick your poison.