Warrantless Wiretaps ... for a Nation of Good Little Nazis

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September 29, 2006

House Approves Power for Warrantless Wiretaps
By ERIC LICHTBLAU

WASHINGTON, Sept. 28 — The House voted on Thursday to give the president the formal power to order wiretaps on Americans without a court order for 90 days, even as a federal judge in Detroit once again declared the administration’s program of wiretapping without warrants to be illegal.

The House approved the surveillance measure, 232 to 191, after rejecting efforts by Democrats and some Republicans to impose greater restrictions on the wiretapping authority.

It appears all but certain that Congress will not reach an agreement on a final surveillance bill before its pre-election recess this week.

Senate Republicans held out hope that they would vote on Friday or Saturday on a bill of theirs that takes a different approach to regulating wiretapping and has the backing of the White House.

Even if the Senate acts this week, lawmakers agreed, there would not be time before the recess for House-Senate negotiators to reach an accord on a final plan, depriving the White House of the chance to sign a bill into law before Election Day.

The legislation took on greater urgency on Thursday after the court ruling in Detroit, as Judge Anna Diggs Taylor of Federal District Court gave the government a week to appeal her decision of Aug. 17 on the wiretapping program or shut it down.

In her earlier ruling, Judge Taylor had found that the surveillance program that President Bush approved after the Sept. 11, 2001, attacks was illegal and unconstitutional, violating First and Fourth Amendment protections by allowing wiretaps on Americans’ international communications without a court-ordered warrant.

Judge Taylor reaffirmed that finding after a hearing on Thursday, when she said that she thought it was unlikely that the United States Court of Appeals for Sixth Circuit, in Cincinnati, would overrule her. Her decision, she said, was based on “settled law.”
The Justice Department immediately filed an emergency motion with the appeals court, asking it to suspend Judge Taylor’s ruling while it considers “the important legal issues” raised by the case, brought by the American Civil Liberties Union. Stopping the program while the appeals court considers it would pose “a drastic risk of harm to the nation,” the department said in its filing.

Representative Peter Hoekstra, the Michigan Republican who leads the House Intelligence Committee, said the Detroit ruling “underscores the importance of Congressional approval of legislation to modernize” federal surveillance laws in the fight against terrorism.

The bill that the House passed on Thursday with Mr. Hoekstra’s backing formalized the president’s authority to act outside the confines of the Foreign Intelligence Surveillance Act. Congress passed that act in 1978 in response to domestic spying on political figures and antiwar protesters.

The bill gives the president the authority to order wiretaps for up to 90 days without a court order on Americans suspected of having ties to terrorists if the president determines there is an “imminent threat” to the United States.

Representative Heather A. Wilson, the New Mexico Republican who wrote the measure, said it would also impose additional Congressional oversight after what she called the administration’s “inappropriate” failure to brief the full Intelligence Committees on the surveillance program.

Ms. Wilson said she believed that the bill struck the right balance between giving the government the tools it needed to fight terrorism and protecting the privacy and civil liberties of Americans.

“This is not some drift net,” she said.

A bipartisan amendment offered by Representatives Adam B. Schiff, Democrat of California, and Jeff Flake, Republican of Arizona, sought to limit wiretaps without warrants to a maximum of 7 days rather than 90. The amendment would affirm the Foreign Intelligence Surveillance Act as the “exclusive” means of conducting intelligence surveillance.

Mr. Schiff said in an interview that Ms. Wilson’s bill would effectively gut the current intelligence law and give the president broad and sweeping authority at the expense of the courts. His effort failed, 221 to 202. Ms. Wilson’s measure also faced behind-the-scenes resistance from the Bush administration, which had pressed her to bring the bill more in line with the Senate version to speed a final bill, Senate officials said.

The Senate bill would offer a differing and somewhat broader approach to resolving the issue by submitting the entire surveillance program to the foreign intelligence court for a one-time review of its constitutionality.
Critics of the approach said it would give the president virtually unchecked authority if the program were to be declared legal.

Senator Arlen Specter, the Pennsylvania Republican who worked out the compromise with the White House, said he saw it as the only viable way to ensure some measure of judicial review over the program.
John Carpenter contributed reporting from Detroit.