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Spy Chief Seeks More Eavesdropping Power

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PAMELA HESS | September 18, 2007 07:06 PM EST | AP

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WASHINGTON — No Americans' telephones have been tapped without a court order since at least February, the top U.S. intelligence official told Congress Tuesday.

But National Intelligence Director Mike McConnell could not say how many Americans' phone conversations have been overheard because of U.S. wiretaps on foreign phone lines.

"I don't have the exact number ... considering there are billions of transactions every day," McConnell told the House Judiciary Committee at a hearing on the law governing federal surveillance of phone calls and e-mails.

McConnell said he could only speak authoritatively about the seven months since he became DNI.

In a newspaper interview last month, he said the government had tapped fewer than 100 Americans' phones and e-mails under the Foreign Intelligence Surveillance Act, which requires warrants from a secret intelligence court.

McConnell is seeking additional changes to the law, which Congress hastily modified just before going on vacation in August based in part on the intelligence chief's warnings of a dire gap in U.S. intelligence.

The new law eased some of the restrictions on government eavesdropping contained in the 1978 Foreign Intelligence Surveillance Act, to let the government more efficiently intercept foreign communications.

Under the new law, the government can eavesdrop, without a court order, on communications conducted by a person reasonably believed to be outside the United States, even if an American is on one end of the conversation _ so long as that American is not the intended focus or target of the surveillance.

Before McConnell can convince Congress to make the Protect America Act permanent _ and agree to even more changes easing the provisions of FISA _ he first has to allay concerns that the law passed so hastily earlier this year does not subject Americans to unwarranted government surveillance.

"The right to privacy is too important to be sacrificed in a last-minute rush before a congressional recess, which is what happened," said Rep. John Conyers, D-Mich., the panel's chairman.

Democrats worry that the law could be interpreted to open business records, library files, personal mail, and homes to searches by intelligence and law enforcement officers without a court order.

Assistant Attorney General Kenneth L. Wainstein said the new surveillance powers granted by the Protect America Act apply only when the assistance of a communications company is needed to conduct the surveillance. Therefore, he said, the government could not use the law to search homes, open mail or collect business records because no communications provider would be involved in such a transaction.

Many Democrats in Congress are now seeking to narrow what they consider to be overly broad language by rewriting the law. Wainstein warned that inserting specific prohibitions on government surveillance to protect civil liberties could have unintended consequences.

"Anytime you put in limiting language, you've got to make sure it doesn't have unintended limiting consequences," Wainstein said.

McConnell said that as long as his office can examine every word of the new language to scrub it for unintended consequences, he would be open to the changes.

However, Bush administration officials say concern about the new powers is unfounded. They contend the Protect America Act only allows the government to target foreigners for surveillance without a warrant, a change that was needed because of changes in communications technology.

Addressing the controversy over the law, the Justice Department and the White House Tuesday issued a "myth and facts" paper meant to ease the concerns of civil liberties advocates and privacy groups that believe it gives the government broader powers than intended.

Rep. Jerrold Nadler, D-N.Y., chairman of the subcommittee on the Constitution, Civil Rights and Civil Liberties, called the effort a troubling "charm offensive."

"Let's have some truth in advertising. The act gives the president almost unfettered power to spy without judicial approval _ not only on foreigners but on Americans," Nadler said.

McConnell said the new eavesdropping powers are needed not just to spy on terrorists but also to defend against more traditional potential adversaries.

He told the panel that China and Russia are aggressively spying on sensitive U.S. facilities, intelligence systems and development projects, and that their efforts are approaching Cold War levels.

McConnell and Wainstein pushed for other changes in the law, including granting retroactive immunity to telecommunications companies which may have helped the government conduct surveillance prior to January 2007 without a court order under the so-called Terrorist Surveillance Program. Wainstein said there are 40 to 50 lawsuits filed against telecommunications companies that are pending in U.S. courts.

(This version CORRECTS the story by deleting a paragraph that inaccurately describes provisions of the law.)