WASHINGTON – The House of Representatives is expected to vote this week on the Democratic version of a bill to renew the Foreign Intelligence Surveillance Act that opponents say will make it harder to track possible suspects such as those involved in the kidnapping of U.S. soldiers in Iraq.
The latest bill would require more warrants to eavesdrop on suspected terrorists. Intelligence officials, for example, would have to get a warrant in advance if they want to eavesdrop on a suspected terrorist overseas who they think may be calling someone in the United States.
Democratic supporters say the limits on wiretapping without a warrant are aimed at protecting Americans from unnecessary surveillance.
"If you're going after Al Qaeda, you have the ability to go after Al Qaeda. But it says if an American becomes a U.S. target, then you have to have a warrant, and we believe that's what FISA originally contemplated. That's what FISA ought to now contemplate," said House Majority Leader Steny Hoyer, who added that the court allows retroactive warrants within 45 days.
But Republican critics say the new bill would require intelligence agencies to get warrants on every suspected terrorist — just in case they call the U.S. They argue that's never before been required and is an overcautious burden.
"We were in a position earlier this year where we were having to pull analysts off of their jobs to write these FISA court warrants," said House Minority Leader John Boehner, R-Ohio. "There are a number of Democrats who want to sit down and work this out with us, and I think Steny may be one of them.
"But he and others in the Democrat Party are being yanked by the left, by the ACLU and others. And at the end of the day, the goal has to be what do we need to do to protect the American people."
As the partisan bickering continues, opponents of the bill say an example of the shortfall in the Democratic version can be seen in the response to the kidnapping of U.S. soldiers Spc. Alex Jimenez, Pfc. Byron Fouty and Pfc. Joseph Anzack Jr. on May 12.
Bill supporters say efforts to politicize the search for the kidnapped soldiers is cynicism at its worst.
"In a cynical and transparent attempt to use the lives of American service members for partisan political gain, Republican operatives are once again hawking the now-debunked story that the Foreign Intelligence Surveillance Act caused a delay in surveillance intended to help locate missing soldiers from the 10th Mountain Division in Iraq. This is simply not the case," reads a memo written Monday from the majority staff of the House Intelligence Committee.
The timeline provided by the staff shows that all sides are in agreement on when several actions occurred. However, they disagree on whether the time was used well to build a case for the warrant needed to track the suspected kidnappers.
In the days just after the kidnapping, military and intelligence officials were frantically searching for the troops. On May 13 and 14, officials thought they might have identified the kidnappers and realized that to follow up on their lead they would need a warrant because the information was traveling over U.S. telecommunications infrastructure.
As the following schedule for May 15 shows, the investigators were delayed from tracking the suspects:
— At 10 a.m., U.S. officials came upon the lead that suggested they may have located the suspected kidnappers and needed to access "certain communications."
— At 10:52 a.m., the National Security Agency notified the Justice Department that under the existing FISA law at the time, a warrant was needed to eavesdrop because the communications passed through the U.S. infrastructure.
But here's where the argument differs. According to FISA bill opponents, at 12:53 p.m., lawyers and intelligence officials began working to confirm probable cause to identify the kidnappers as foreign insurgents and therefore a legitimate target. However, the Democratic staff reports that the NSA general counsel at that time said the FISA requirements had been met for collecting "communications inside the U.S."
Bill opponents say that at 5:15 p.m., the lawyers established probable cause and Justice Department officials began the process of requesting emergency authority to conduct surveillance of the suspected kidnappers. Democratic staffers questioned why it took more than five hours for Bush administration lawyers to wrangle over the legal underpinnings of their request.
In the effort to get approval for emergency surveillance, Justice Department officials had to track down then-Attorney General Alberto Gonzales, who was in Texas, and relay the facts that had been established. The memo from Democratic staff notes that this became necessary because the three officials with the Justice Department authority to grant permission to conduct emergency surveillance were unavailable.
A fourth — the assistant attorney general in charge of the national security division — had been granted authority by Congress to authorize surveillance, they say, but because the Justice Department hadn't changed its internal regulations, the assistant attorney general was prevented from granting the approval.
— At 7:18 p.m., Gonzales approved the emergency surveillance based on their certainty that the court would grant the warrant retroactively within the week
— At 7:38 p.m. — nine hours and 38 minutes after the officials got a lead in the search, the intercepts of the suspected kidnappers began.
"Because of the Bush administration's bungling, minutes turned into hours. And during those hours, the intelligence community waited for information on the three missing soldiers ... Now, the Republicans want to lay this at the feet of Congress?" reads the memo.
Anzack's body was found floating in the Euphrates River on May 23. Two weeks later a terrorist group linked to Al Qaeda posted a video on the Internet displaying the ID cards of the three soldiers. Jimenez and Fouty are still missing.
Republican lawmakers say the short-term emergency FISA bill passed in August and set to expire in February makes it easier for intelligence agencies to surveill foreign terrorists because it is technology-neutral, meaning warrants are not needed when information is discovered using U.S. telecommunications systems accessed overseas. But supporters insist that protecting Americans from government surveillance supersedes any claims for conducting eavesdropping without permission. They insist that the proposed bill does nothing to delay properly-coordinated surveillance efforts.
FOX News' Molly Henneberg contributed to this report.