The Wall Street Journal-20080215-Politics - Economics- Expiration Nears for Surveillance Law- Bush- Democrats Intensify Rhetoric on Level of Risk Deadline Poses to Operations

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Politics & Economics: Expiration Nears for Surveillance Law; Bush, Democrats Intensify Rhetoric on Level of Risk Deadline Poses to Operations

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A temporary law expanding the government's domestic-surveillance powers is due to expire tomorrow, and Congress appears disinclined to address the matter before then. The looming question: What happens next?

Spy operations initiated under the temporary law, which according to officials familiar with the matter target every known terrorist group, remain in effect at least through August. Any operation against a previously unknown group, however, would require a warrant from a secret national-security court, as was the practice before the passage of the temporary legislation, the Protect America Act, in August. That much is agreed.

But in describing the impact of the probable expiration, the White House and Democrats have presented significantly different what-if scenarios. President Bush said yesterday it would "harm our ability to monitor new terrorist activities, and could reopen dangerous gaps in our intelligence," while Democrats said the expiration wouldn't make the country more vulnerable to attack. It is impossible to know the impact for sure, which is one reason the White House's dire warnings have such political potency.

The expiration would likely be temporary, while the House and Senate negotiate a final, permanent measure. House Democrats say they can come to agreement within 21 days.

National-security experts say the possible hindrance to intelligence capabilities is far smaller than it was in August, when Congress passed the temporary surveillance measure. The intelligence gaps the law was designed to address have been filled with new surveillance orders that will continue after the law expires, administration officials have acknowledged. And the government is now better positioned to process new secret-warrant requests quickly because it has eliminated its backlog of requests.

"We should be in good shape for some period of time," said Suzanne Spaulding, a former Central Intelligence Agency counsel who has worked for both parties on Capitol Hill.

Mr. Bush stepped up the pressure on House Democrats to approve a White House-backed bill the Senate passed to avoid the law's expiration, offering to delay his trip to Africa if Congress would send him a bill before tomorrow. "We would not have the early warning system we now have in place," said Kenneth Wainstein, assistant attorney general for national security. The reason, he said, is spy agencies would have to obtain secret search warrants, which requires them to meet the legal standard of probable cause that the person they are tracking is linked to a foreign threat. Without a permanent law, he added, communications companies will be even more uneasy about working with the government.

Democrats said companies would still have to comply with the current spy operations unaffected by the law's expiration. And one noted that the current resistance from phone companies wasn't related to uncertainty about the law but rather to the broad nature of the surveillance requests.

House Intelligence Committee Chairman Silvestre Reyes, a Texas Democrat, wrote to Mr. Bush yesterday that he takes "strong offense" at the suggestion that the country will be more vulnerable to attack if the law expires, adding that intelligence agencies will have several ways to continue their surveillance if the law expires while the House negotiates with the Senate. "I, for one, do not intend to back down -- not to the terrorists and not to anyone, including a president, who wants Americans to cower in fear," Rep. Reyes said.