Martin said at the panel, “If we are talking foreign-to-foreign communications overseas, not involving U.S. persons, then, I can’t think of a reason why it wouldn’t be a good idea.”

DeRosa, who was a member of the National Security Council staff under President Clinton before becoming chief counsel for national security on Capitol Hill, clarified the problem. She said current law requires that “procedures are reasonably designed to determine the interceptions are concerning persons overseas, not directed at persons overseas, but concerning people overseas.”

The new distinction that foreign communications need only “concern” foreign persons is what troubles DeRosa. “It’s really very unclear what that is intended to address and what its consequences are,” DeRosa said.

FBI Director Robert Mueller said new technology required a different way of defining “foreign communications” on July 26 before the House Judiciary Committee.

He said: “The ability in a variety of ways through digital networks, whether it by Skype, voice over IP, otherwise, the ability of persons to utilize communication capabilities across international lines has grown immensely over the years, and the statutory framework has not kept up with it….with internationalization, we have to be astute and flexible in understanding that those who wish to do us harm from overseas can quickly cross borders with the click of a mouse or come into the country.”

Regardless of Democratic disagreement with the Bush administration on this issue, DeRosa said it would be in the Democratic leadership’s interest to vote on FISA reauthorization quickly, before the sunset date approaches and presidential primaries begin.

The Washington Post reported on August 30 that Majority Leader Sen. Harry Reid (D.-Nev.) and Speaker Nancy Pelosi (D.-Calif.) said a private conference call made during August recess that they would “confront the president next month over his wiretapping program” as well as “also push legislation to restore habeas corpus rights for terrorism suspects and may resume an effort to close the prison at Guantanamo Bay, Cuba.”