The president’s power as military commander in chief, in time of constitutionally authorized war, of course includes the power to intercept enemy communications, including enemy communications with persons here in the United States who may be in league with the enemy, and to follow the chain of such communications where it leads, in order to wage the war against the enemy and, of vital importance, to protect the nation against further attacks.Letter from Senator Pat Roberts to Senator Arlen Specter Senator defending NSA program legality, February 3, 2006

Congress has been beating up the administration about the “warrantless” wire-tap for years now. The fact is–since congress decided to use this program as a way to get back at the President, the NSA has been tied up in its underwear trying to figure out what it could and could not do. The only thing for sure is that we are no longer on top of terrorist communications the way we used to be, and our country is in greater danger than before.

Dropped Call: The NSA's Threat Operations Center in Maryland

Jason Reed / Reuters

Dropped Call: The NSA’s Threat Operations Center in Maryland

Aug. 6, 2007 issue – Six years after 9/11 , U.S. intel officials are complaining about the emergence of a major “gap” in their ability to secretly eavesdrop on suspected terrorist plotters. In a series of increasingly anxious pleas to Congress, intel “czar” Mike McConnell has argued that the nation’s spook community is “missing a significant portion of what we should be getting” from electronic eavesdropping on possible terror plots. Rep. Heather Wilson, a GOP member of the House intelligence community, told NEWSWEEK she has learned of “specific cases where U.S. lives have been put at risk” as a result. Intel agency spokespeople declined to elaborate.

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The intel gap results partly from rapid changes in the technology carrying much of the world’s message traffic (principally telephone calls and e-mails). The National Security Agency is falling so far behind in upgrading its infrastructure to cope with the digital age that the agency has had problems with its electricity supply, forcing some offices to temporarily shut down. The gap is also partly a result of administration fumbling over legal authorization for eavesdropping by U.S. agencies.The post-Watergate Foreign Intelligence Surveillance Act (FISA) required a warrant for eavesdropping on people in the U.S. But after 9/11, the administration asserted that warrants weren’t needed to surveil communications involving suspected terrorists even inside the U.S. The controversy over “warrantless wiretapping” made intel officials gun-shy about eavesdropping even on messages they would have regarded as fair game before 9/11.According to both administration and congressional officials (anonymous when discussing such issues), the White House and intelligence czar’s office are now urgently trying to negotiate a legal fix with Congress that would make it easier for NSA to eavesdrop on e-mails and phone calls where all parties are located outside the U.S., even if at some point the message signal crosses into U.S. territory.Much of the electronic communications NSA once pored over, between two parties communicating with each other outside the U.S., used to travel via satellite or radiolike signal, leaving NSA free to pluck the messages out of the air. Technological innovations, however, have shifted more and more traffic—both e-mail and telephone calls—to hard-wired or fiberoptic networks, many of which have critical switching or transit facilities inside the U.S. Therefore, intel-collection officials concluded that FISA court authorizations should be obtained to eavesdrop not just on messages where at least one party is inside the country, but also for eavesdropping on messages between two parties overseas that pass through U.S. communications gear. Two officials familiar with the controversy, who asked for anonymity when discussing sensitive material, said that had the administration initially been candid about its antiterror surveillance plans, it could have worked with Congress years ago to tweak the FISA laws to account for the technological changes. One of the officials said the administration’s secretiveness had, in this case, created problems for antiterrorism efforts.—Mark Hosenball