By Tim Starks, CQ Staff

As difficult negotiations begin over electronic surveillance overhaul legislation, Republicans are raising the specter of a hobbled intelligence community if a temporary surveillance law expires and a Senate-passed measure does not become law.

But legal experts say the implications of any expiration are mixed. They note that any spying orders already in place would stay in place long after a temporary law (PL 110-55) dies on Feb. 16. At the same time, most experts agree that the administration would have to go back to the Foreign Intelligence Surveillance Act (FISA, PL 95-511) for new warrants in cases where foreign-to-foreign communications are routed through the United States’ telecommunications infrastructure. That poses little immediate threat, they say, but if a backlog of warrant applications were to build, as happened last summer, it could begin to cause problems.

Among experts in national security law, there is no agreement on whether telecommunications companies would continue to be compelled to comply with administration surveillance demands.

And because Bush administration officials have repeatedly invoked claims that the executive branch has all the authority it needs to conduct its surveillance program in the service of national security, some experts argue that the administration is likely to do as it pleases regardless of what happens in Congress.

The ambiguity surrounding the temporary law’s expiration is one argument made by proponents of passing permanent legislation.

The dispute over what would happen on Feb. 16 if the temporary law expires — and if no long-term FISA legislation is in place by then — is growing louder following passage Tuesday of a White House-backed Senate bill (S 2248). The legislation passed by a vote of 68-29.

Republicans are pressuring House Democrats, who have passed their own very different FISA bill (HR 3773), to accept the Senate bill. The White House would sign that bill, and has threatened to veto the House legislation.

Democrats said they prefer to approve another extension of the temporary law while they try to find common ground between the House and Senate legislation, but also maintain that the law’s expiration poses no threat. The House is slated to take up a 21-day extension bill (HR 5349) on Wednesday. The administration and congressional Republicans oppose another extension, having already accepted a 15-day extension (PL 110-182) against their wishes.

“It was bipartisan on a 15-day extension last time,” said Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee. “I’m pretty sure this one won’t be bipartisan.”

Existing Spy Orders Remain In Force

Critics of President Bush’s rhetoric – his warnings that expiration of the temporary law will expose the nation to a terror attack but that an extension is unacceptable — call it disingenuous.

“Either he doesn’t care if people die, or it’s a big fat lie,” said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington legislative office.

Republicans, meanwhile, note that Democrats have had six months to find a compromise, adding that the time has come for them to pass something permanent.

There is no dispute among experts, however, that the temporary law allows surveillance orders approved while the law was in place to continue.

Some experts, such as Greg Nojeim, senior counsel for the Center for Democracy and Technology, contend that new targets could be added to the existing orders without a warrant. But most, such as University of Virginia law professor Robert Turner, say that warrants would be required for any new targets where one party might be in the United States.

Before Congress enacted the short-term law, a backlog of new warrant requests had built up. At a House Intelligence Committee hearing last week, Director of National Intelligence Michael McConnell said the backlog has since subsided.

But other complications could arise if the temporary law expires and the administration is forced to fall back on the 1978 FISA law to obtain warrants, Republicans said.

“If a new terrorist group or cell emerges, our intelligence community may not have enough information on them to obtain a FISA warrant and no ability or authority to intercept the terrorist’s communications,” said Shana Marchio, a spokeswoman for Sen. Christopher S. Bond , R-Mo., the sponsor of the temporary law.

The temporary law has a provision requiring telecommunications carriers to comply with any surveillance orders and protecting them from lawsuits for doing so. McConnell said at last week’s hearing that if the law expired, “we would lose our ability to compel assistance from the private sector. That’s one of the major things we’re worried about.”

But experts are divided on whether telecommunications company compliance would be required under the existing orders. Kate Martin, director of the Center for National Security Studies, said there is no indication that telecommunications companies will cease cooperation with the government.

“This president does still claim that he has the authority to order electronic surveillance outside any statute,” Martin added. Bush has cited the power to do so under Article II of the Constitution and the law (PL 107-40) that authorized the use of force against groups or nations that perpetuated or planned the Sept. 11 terrorist attacks.

Kim Taipale, the president of the private, nonpartisan Center for Advanced Studies in Science and Technology Policy, said there are provisions in the existing law that keep it from coming to a “screeching halt.” But that is secondary, he said.

“The biggest problem with letting it expire is not the specifics of whether a program continues or doesn’t continue,” said Taipale. “I think that you cannot continue down a path where there is so much uncertainty about what the intelligence community can do.”

Alan K. Ota contributed to this story.