Proposal Would Involve FISA Court in Warrants
By Ellen Nakashima and Spencer S. Hsu
Congressional Democrats outlined a temporary plan yesterday that would expand the government’s authority to conduct electronic surveillance of overseas communications in search of terrorists.
The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are “likely,” in fact, overseas.
If a foreign target’s communications to a person inside the United States reaches a “significant” number, then an court order based on probable cause would be required. It is unclear how “significant” would be defined.
Under a sunset provision, the authority would have to be revisited in six months.
“Given the continued threat environment and some recent technical developments, I have become convinced that we must take some immediate, but interim, step to improve collection of foreign intelligence in a manner that doesn’t compromise civil liberties of U.S. citizens,” said John D. Rockefeller (D-W.Va.), chairman of the Senate Select Committee on Intelligence.
In recent days, the administration has proposed giving the attorney general sole authority to authorize the surveillance, suggesting that if Democrats do not act quickly Americans would be at greater risk of attack.
Democrats said that giving sole authority to the attorney general would be unacceptable and insisted that the secret Foreign Intelligence Surveillance Court have an oversight role.
Some civil liberties advocates were pleased.
“It is vastly better than the administration’s bill and preserves the Fourth Amendment warrant requirement,” said Kate Martin, director of the Center for National Security Studies.
Others, including some Democrats, said that granting the government authority to intercept calls with broad warrants could allow a large number of phone calls and e-mails of U.S. individuals and companies to be intercepted, as well.
Caroline Fredrickson, director of the American Civil Liberties Union‘s Washington legislative office, contended that Democrats are “capitulating to the politics of fear.”
Sen. Russell Feingold (D-Wis.) said that the proposal, while better than the administration’s, “does not have adequate safeguards to protect Americans’ privacy.”
Still, Democratic leaders are holding out hope of reaching a deal and passing legislation before leaving for the August recess.
The 1978 Foreign Intelligence Surveillance Act requires the government to obtain an order from a secret court to conduct electronic surveillance of terrorist or intelligence suspects in the United States. After the Sept. 11, 2001, terrorist attacks, President Bush authorized a secret warrantless wiretapping program that allowed the National Security Agency to intercept communications between individuals in the United States and others overseas when at least one of them is suspected of links to terrorism.
The full extent of that program has never been disclosed. In January, it was put under the supervision of the Foreign Intelligence Surveillance Court, though officials have never made public the terms of the court’s oversight.
In recent weeks, the administration has warned that the United States is under heightened threat of another terrorist attack. It is seeking broadened authority to step up surveillance, but for now, Democrats do not want to provide that power indefinitely. Congressional leaders met with Bush yesterday at the White House, where they discussed the administration’s wiretapping authority.
On Friday, Director of National Intelligence Mike McConnell submitted a proposal to Congress that asked for the authority to intercept without a court order any international phone call or e-mail between a surveillance target outside the United States and any person in the United States.
Yesterday, the administration updated its proposal by saying that the attorney general and the director of national intelligence could authorize such surveillance and that the guidelines on what constitutes an overseas target be subject to some court review. But the surveillance could begin before the court review and the oversight would be limited.
A Bush administration official, requesting anonymity because of the sensitivity of the issue, said, “What we want to be careful about is not having FISA take on a role for which it was never intended, which is to essentially . . . extend privacy rights to foreigners located in foreign lands.”
A Democratic aide familiar with the negotiations said that if communications are determined to involve U.S. persons, then their names would be removed before any transcript is disseminated unless they were relevant to a foreign terrorism investigation.
If further investigation were needed, “individualized warrants for Americans” would be required, according to a proposal by conservative House Democrats led by Reps. Robert E. “Bud” Cramer (Ala.) and Jane Harman (Calif.). It is unclear what would specifically trigger that requirement.
The Democrats‘ proposal also would compel compliance by private companies.
It would also affirm that no court order is needed to eavesdrop on communications that begin and end outside the United States, even if routed through the United States.