Congress weighs move to plug intelligence gap

WASHINGTON — WASHINGTON -- Congress is considering a change to the laws governing domestic surveillance by the National Security Agency that would close a new intelligence gap recently revealed by U.S. officials.

Top intelligence agency officials went to Capitol Hill in mid-July and informed lawmakers that a new data collection problem had been discovered, congressional aides said.


That gap, according to the officials, is preventing U.S. intelligence agencies from legally collecting "a significant portion of what we should be getting," said House Intelligence Committee Chairman Silvestre Reyes, a Texas Democrat.

The nature of the gap is classified, but it deals with the way the government must apply for surveillance warrants from a secret national security court -- a problem that is bureaucratic and could be fixed without major changes to the law, said two government sources familiar with the matter speaking on condition of anonymity.


An intelligence official familiar with the matter said the gap is related to the amount of time it takes to process a warrant application, a burden the administration believes was created by a decision in January to place the NSA's warrantless wiretap program under special court order.

Democrats have discussed the option of closing the gap by allowing the government to begin eavesdropping as soon as a target is identified and then requiring that the national security court be notified afterward, according to a Senate aide.

The administration rejected that idea and proposed an alternative that would not require court approval, but Democrats said that proposal was too sweeping.

Suzanne Spaulding, a national security lawyer, said if Congress made limited changes to close the gap, it could eliminate pressure to adopt a broader administration plan to overhaul the nation's surveillance laws.

Democrats aren't eager to give the Bush administration any additional authority, particularly in the middle of a political battle over whether embattled Attorney General Alberto R. Gonzales lied to Congress.

President Bush is expected to lobby congressional leaders tomorrow on his plan to overhaul the 1978 Foreign Intelligence Surveillance Act, which he has said "is badly out of date."

That law requires the government to obtain a warrant to eavesdrop on communications in the United States. With advances in digital technology, the law has kept the government from monitoring some communications between foreigners, the administration contends.

"The attempt to jam Democrats on FISA is a political calculation," said Rep. Jane Harman of California. "Basically they're saying 'Gut FISA or die,' and I think that is not a message we should heed."


The administration's surveillance agenda goes beyond the public arguments made for changing the law, said an intelligence official familiar with internal discussions on the matter.

The NSA believes that it must persuade the court's judges and lawmakers to give the agency a blanket warrant to allow them to collect all communications in cyberspace, whether they are inside or outside the United States, the official said.

Reyes, noting that his committee has held four hearings on surveillance issues over the past six weeks, said recently that the House panel would consider the administration's overhaul plan this fall. The Senate is working at a similar pace.

"Before we consider making changes to [surveillance law], I think it's important that [administration officials] take a look at the system that is being used and iron out or streamline the different areas," Reyes said in an interview.

Analysts said Congress is unlikely to approve a broad intelligence law this year.

The House and Senate Judiciary committees, which also would evaluate Bush's proposal, have an increasingly strained relationship with the White House and have called for an investigation of Gonzales on matters related to the warrantless NSA program.


"The idea of giving [Gonzales] even more power is highly unappealing, to put it mildly," said Lisa Graves, a former aide to Democratic Sen. Patrick J. Leahy who is now deputy director of the Center for National Security Studies, a civil liberties group.

Republicans, from Bush on down, are stepping up pressure.

"Congress is sitting on its hands while American lives are at risk," Republican Rep. Heather Wilson of New Mexico, who is sponsoring a measure to enact part of the administration's proposal, said in an interview.

Meanwhile, talks between Congress and the White House on even a minor change in the law are making some civil liberties groups nervous.

"It's movement that concerns us, because there is clearly interest from very high-level Democrats in doing something," said Caroline Frederickson, director of the American Civil Liberties Union's Washington office. "Democrats always make me nervous. They get weak-kneed sometimes."