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Analysts say FISA will suffice

- The Washington Times - Saturday, February 16, 2008

Many intelligence scholars and analysts outside the government say that today's expiration of certain temporary domestic wiretapping laws will have little effect on national security, despite warnings to the contrary by the White House and Capitol Hill Republican leaders.

With the Protect America Act expiring this weekend, domestic wiretapping rules will revert to the 30-year-old Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a warrant from a special court to conduct foreign intelligence surveillance in the United States.

The original FISA law, these experts say, provides the necessary tools for the intelligence community to eavesdrop on suspected terrorists.

Timothy Lee, an adjunct scholar at the Cato Institute, said the last time Congress overhauled FISA — after the September 11 terrorist attacks — President Bush praised the action, saying the new law "recognizes the realities and dangers posed by the modern terrorist."

"Those are the rules we'll be living under after the Protect America Act expires this weekend," Mr. Lee added. "There's no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006."

Ben Wittes of the Brookings Institution said because existing warrantless surveillance begun under the temporary laws could continue for up to a year, the "sky is not falling at all."

Not everyone agrees. The issue has been one of the most fiercely contested in Washington in several months, with Democratic leaders and the Bush administration accusing one another of playing political games with national security.

White House press secretary Dana Perino said the expiration of the Protect America Act "will harm our ability to conduct surveillance to detect new threats to our security, including the locations, intentions and capabilities of terrorists and other foreign intelligence targets abroad."

But House Majority Leader Steny H. Hoyer, Maryland Democrat, called the White House's warning "categorically false."

"In fact, a wide range of national security experts has made clear that the president and our intelligence community have all the tools they need to protect our nation, if the Protect America Act — temporary legislation passed last August — expires."

The Protect America Act allowed the U.S. intelligence community to conduct surveillance on domestic phone and e-mail correspondence in the U.S. without a warrant. Congress passed the law in August after it failed to reach a compromise on a permanent measure. It was set to expire Feb. 1, but Congress last month agreed to another 15-day extension.

The Bush administration and Capitol Hill Republicans have pushed for permanently expanding the Act, arguing that changes in telecommunications technology have forced the government to obtain warrants for some spying abroad, because foreign phone calls and other electronic communications now often travel through U.S. networks.

Requiring intelligence officials to seek court approvals for foreign communications routed through the United States would cost precious time and create a "dangerous intelligence gap that we temporarily closed with passage of the [Protect America Act] last August," Mrs. Perino said.

But Democrats deny requiring warrants will handcuff intelligence officials, saying warrants can be obtained from the FISA court within minutes. Officials also have three days to retroactively obtain a warrant.

"We believe the president's rhetoric is inaccurate and divisive, and an attempt to stampede the House of Representatives to rubber-stamp legislation by stoking the fears of the American people," Mr. Hoyer said. "We will not be stampeded."

Mr. Wittes also said he was "somewhat bewildered by the apocalyptic rhetoric" of the White House.

Another big dispute in updating the FISA is a Republican demand to give telecommunications companies legal immunity for their participation in a domestic spying program the president began shortly after the September 11 terrorist attacks. The secret program circumvented the FISA court.

About 40 lawsuits have been filed accusing AT&T, Verizon and Sprint Nextel Corp. of violating privacy rights while participating in the program.

Republicans and Mr. Bush, who supports a Senate bill passed Tuesday that includes the immunity provision, say phone companies should not be penalized for helping defend the nation against terrorism. Civil liberties activists and many Democrats say Mr. Bush's program was unconstitutional because warrants weren't required.

But the House on Wednesday rejected a Democratic proposal for a 21-day extension.

Republicans say any further extensions will cause telecommunications companies to hesitate in cooperating with intelligence officials, thus compromising national security.

"Without their voluntary cooperation, this important intelligence gathering won't occur. And it cannot occur if they get hauled into court and have to answer these lawsuits that preclude them from helping the United States government in this operation," said Senate Minority Whip Jon Kyl, Arizona Republican.

The issue won't be resolved until at least Feb. 25, when Congress is scheduled to return from its February recess.