The Obama administration's approach to wiretapping foreign terrorism suspects -- an issue that crystallized Bush administration overreach for many Democrats -- continues to frustrate civil libertarians and other critics.



The public first learned about warrantless wiretaps in 2005 thanks to coverage in the New York Times . The stories focused on the National Security Agency, which monitors foreign communications and intelligence. The newspaper revealed that the agency was monitoring phone and e-mail conversations of people in the United States who were communicating with people in other countries. This type of monitoring required a warrant, but President George W. Bush authorized it without warrants.



The Bush administration insisted that the program was legal, although many people, particularly civil libertarians, disagreed. In 2008, Congress passed a law that updated the Foreign Intelligence Surveillance Act to give the administration the legal authority to do what it was already doing. The law also included retroactive immunity for telecommunications companies that had allowed the government to tap into networks, so that their customers couldn't sue for privacy violations. (Obama, then a senator, voted in favor of this bill, a move PolitiFact considers a flip-flop because he had previously said he would filibuster any law that called for telecom company immunity.)



The promise we're rating here is framed quite narrowly. It does not address such contentious questions as what types of surveillance should be permissible or whether to reverse the decision to give the telecom companies immunity, as some lawmakers and activists would like to do. Rather, Obama, in his promise, focused specifically on increasing the role for congressional oversight to make sure that FISA-related activities are conducted in a legal and appropriate manner.



"As president," the promise said, "Obama would update the Foreign Intelligence Surveillance Act to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law."



Experts we spoke to agreed that the most likely avenue for this proposed change is a bill that would renew three expiring provisions of the USA Patriot Act. These include the government's right to establish a "roving wiretap" that allows intelligence officials to track a target who switches phone numbers or providers without having to get a new warrant; the government's right to secure a court order to seize "any tangible things" deemed relevant in the course of a terrorism inquiry; and the government's right to seek a court-ordered wiretap of a terrorism target unconnected to a known terrorist group or a foreign nation.



Several lawmakers have proposed bills addressing these renewals, and most of them include additional sections aimed at the specific topic of Obama's promise, expanding congressional oversight. Typically, these oversight provisions require the Justice Department's inspector general to issue periodic reports to the House and Senate intelligence committees auditing certain types of FISA-related activities, and to keep the committees apprised of efforts to ensure that surveillance is limited to legitimate targets only. The bills with some form of oversight provisions include measures sponsored by Senate Judiciary Chairman Patrick Leahy, D-Vt., and Senate Intelligence Chairwoman Dianne Feinstein, D-Calif.; by House Judiciary Chairman John Conyers, D-Mich.; by Sen. Russ Feingold, D-Wis., a leading critic of FISA overreach; and by Rep. Silvestre Reyes, D-Texas.



But while lawmakers have provided bills that would boost congressional oversight, the administration has been silent about its position on those provisions.



In a Sept. 14, 2009, letter to Leahy, Ronald Weich, the administration's assistant attorney general for legislative affairs, urged renewal of the three expiring Patriot Act powers but did not offer any specific ideas for bolstering oversight. In fact, twice in the letter Weich praised current oversight procedures as having worked well.



The furthest Weich went was to open the door to considering increased oversight. He wrote that the administration is "aware that Members of Congress may propose modifications to provide additional protection for the privacy of law-abiding Americans. As President Obama said in his speech at the National Archives on May 21, 2009, 'We are indeed at war with al-Qaida and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.' Therefore, the Administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities."



When rating promises, we have typically labeled a promise In the Works as long as one or more bills to carry it out are pending in Congress. That is certainly the case with this promise. But given the administration's noncommittal stance on heightening oversight of FISA-related activities, we'll keep watching this issue as the congressional debate moves forward to see whether this promise merits a shift to Compromise, Stalled, or Promise Broken. For now, though, we'll label this promise In the Works.