A debate that raged behind the scenes for months about whether federal eavesdropping restrictions undermined U.S. troops in Iraq will be rekindled this week as the House takes up a Democratic bill to restore tougher rules for government wiretaps of foreign terrorism suspects.
The administration and its Republican allies on Capitol Hill have been at odds with congressional Democrats since May over whether wiretap laws hampered intelligence-gathering in the attempt to rescue three U.S. soldiers abducted near Baghdad.
Democrats say bureaucratic bungling by the Bush administration, not legal constraints of the Foreign Intelligence Surveillance Act (FISA), caused the delay in tracking al Qaeda-linked terrorists who in May kidnapped three members of the Army’s 10th Mountain Division. One of the abducted soldiers since was found dead while the other two are still missing.
Republicans say bureaucrats should never have been injected into foreign spy operations. The bill that goes to the House floor Wednesday, they say, will return bureaucracy to intelligence work and again jeopardize the global war on terrorism.
“The FISA court should not have a role on the battlefield,” Rep. Peter Hoekstra of Michigan, ranking Republican on the Permanent Select Committee on Intelligence, said of the bill, dubbed the Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act, or the Restore Act.
The original 1978 FISA law required the government to obtain a FISA court warrant to conduct foreign intelligence surveillance inside the U.S. Changes in telecommunications technology eventually forced the government to sometimes get warrants to spy abroad, because foreign phone calls and other electronic communications now travel through U.S. networks.
The new legislation would rescind the exemption from FISA for spying on foreigners abroad granted temporarily by the Protect America Act, which Congress passed in early August. Spy agencies would instead need to apply for a one-year “blanket” or “basket” authorization from the special FISA court to eavesdrop on a group of overseas targets.
“If you’re going after al Qaeda, you have the ability to go after al Qaeda,” House Majority Leader Steny H. Hoyer, Maryland Democrat, said yesterday on “Fox News Sunday.” “The administration does not want any oversight [from] the Congress or the courts.”
Army Lt. Gen. Keith B. Alexander, told the House intelligence panel in a partly classified May 23 briefing that getting permission under the existing-in-May law delayed surveillance in the case of the 10th Mountain Division soldiers for 9½ hours, said a government official familiar with the emergency classified briefing.
“Soldiers’ lives were literally on the line while lawyers scrambled around Washington looking for permission,” said the official, who has ties to the intelligence community and discussed unclassified portions of the briefing. “The committee was told about all these issues, all these problems and nothing happened.”
The emergency briefing came the same day U.S. troops recovered the body of Pfc. Joseph J. Anzack Jr., in the Euphrates River near the site of the ambush in an area known as the Triangle of Death. A terrorist-made videotape showed the military identifications of Spc. Alex R. Jimenez and Pvt. Byron W. Fouty.
National Intelligence Director Michael McConnell, defending the Protect America Act, made public in September a timeline showing the 9½ hour delay, which included more than four hours of administration and intelligence officials discussing legal and operational issues, and more than two hours of looking for Justice officials for approval.
“That wrangling had nothing to do with establishing probable cause” for the wiretap, said a congressional intelligence official who supports the Restore Act. “For Republicans to use this in this way is a cynical and reprehensible effort that is … offensive to the families of those soldiers.”
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