Claiming that federal investigators are missing key information on terrorists because of an outdated spying law, the top U.S. intelligence official called on lawmakers Tuesday to revamp the foreign surveillance act and make it easier to eavesdrop on non-citizens in the United States with suspected links to terrorism.
But Democrats on the Senate Intelligence Committee seemed incredulous when they heard the pitch from Justice Department officials and Michael McConnell, director of national intelligence, to update the 1978 Foreign Intelligence Surveillance Act in the wake of revelations that the Bush administration conducted a warrantless wiretapping program after the Sept. 11 attacks.
While the administration contends that the wiretapping was legal and necessary to thwart further attacks, Sen. Bill Nelson (D-Fla.) said “legitimate disagreement” on whether the president broke the law remains. The National Security Agency monitored, without warrants, phone calls and e-mails between individuals in the U.S. and people abroad suspected of terrorism links.
In light of that, Democrats are uneasy about expanding the surveillance laws.
“Well, this is what the American people are scared about,” Nelson said, “that their civil rights and civil liberties are going to be invaded upon because somebody determines, outside of what the law says in black and white, that they think better than what it says.”
The White House proposed revisions to the surveillance act, known as FISA, that would significantly broaden federal investigators’ authority to spy on foreigners in the U.S. suspected of having links to terrorist activities.
The law now requires that a non-citizen be connected to a foreign terrorism suspect or foreign power for a special court to consider granting federal investigators secret-surveillance authority. The Foreign Intelligence Surveillance Court approved all but one of the government’s requests last year to search or eavesdrop on suspected terrorists and spies, according to Justice Department data released Tuesday.
The White House is proposing expanding the law to include non-citizens believed to possess, transmit or receive foreign intelligence information, as well as foreigners in the U.S. suspected of activities related to acquiring weapons of mass destruction. Changes in the law also would provide legal cover to telecommunication companies that aid the government with such information as phone and e-mail records.
McConnell contended that FISA is sorely in need of updating. Congress passed the statute in 1978, and it does not reflect the vast changes in technology, such as cell phones and the Internet. McConnell also said obtaining warrants from FISA courts is cumbersome and can lead to information on potential terrorists slipping away.
“We’re actually missing a significant portion of what we should be getting,” McConnell said, adding, “In today’s environment, the FISA legislation is not agile enough to handle the country’s intelligence needs.”
But Democrats seemed wary of giving the administration any leeway. Sen. Jay Rockefeller (D-W.Va.) noted that language in the proposal would allow the attorney general to order the assistance of private parties, such as telecommunications companies, without first obtaining an FISA warrant.
“I mean, is it necessary, period?” asked Rockefeller, committee chairman. “And does it take a step further down a path that we will regret as a nation?”
The administration proposal also includes a provision that would give retroactive immunity to telecommunications companies and e-mail providers that cooperate with government investigations, including the administration’s warrantless wiretapping program.
The proposal, submitted to Congress last month, has come under intense scrutiny from civil liberties advocates who say it gives the telecom companies a pass for violating their customers’ privacy and gives the administration too much power.
“Giving the Department of Justice more latitude to conduct warrantless searches is ludicrous when you consider that it has shown no restraint with the power it already has,” Caroline Fredrickson, the director of the American Civil Liberties Union’s Washington legislative office, said in a statement.
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Origins of the secret surveillance court
Revelations in the 1970s that U.S. intelligence agencies had eavesdropped on war protesters and civil rights activists led to passage in 1978 of the Foreign Intelligence Surveillance Act, which strictly limits intelligence gathering on American soil. The law requires that wiretaps in national security cases be approved by the secret Foreign Intelligence Surveillance Court, an independent panel of federal judges. The Bush administration bypassed this court in its wiretap program after the Sept. 11 attacks — an action that caused considerable controversy when it was revealed in December 2005. The White House now wants to change the law to broaden the circumstances under which the court could approve wiretapping of non-citizens in the U.S.
— Tribune news services
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amadhani@tribune.com
