CONGRESS DRAFTING ‘ROVING WIRETAP’ FOREIGN INTELLIGENCE BILL

House and Senate Judiciary and Intelligence Committee leaders are drafting legislation that would expand wiretap capabilities of federal agents under Foreign Intelligence Surveillance Act (FISA). FISA, which sets legal parameters for investigation of sabotage or terrorist activities committed by “agents of a foreign power,” provides federal officers with emergency wiretap and search and seizure authority that isn’t subjected to Title III electronic surveillance restrictions. One of measures that Senate Judiciary Committee Chmn. Leahy (D-Vt.) and other leaders will introduce this week would extend “roving wiretap” powers to FISA investigations, a Leahy staffer said.

Congress amended federal electronic surveillance laws in 1998 by authorizing use of such roving wiretaps to enable investigators to extend electronic monitoring of criminal suspects as they moved from one location to another. However, Leahy aide said there was no roving wiretap language in FISA, which deals specifically with foreign-sponsored intelligence gathering and similarly supported violent acts within U.S. He said Leahy continued to consult with Dept. of Justice (DoJ) and FBI on terrorist-related investigative matters. Attorney Gen. John Ashcroft and FBI Dir. Robert Mueller have been meeting (CD Sept 18 p1) with Judiciary and Intelligence Committee leaders since Sun. “to brainstorm about legislative ideas that would be helpful” in fighting terrorism.

Leahy was one of most vocal opponents of wiretap amendment submitted late last week (CD Sept 17 p1) by Senate Judiciary Committee ranking Republican Hatch (Utah) and supporters including Sen. Kyl (R-Ariz.). He criticized measure -- which would enable federal judges to grant nationwide “pen register” and trap-&-trace orders -- for what he said was lack of definition of terrorism and would lead to unprecedented expansion of Internet and communications monitoring powers. When asked why Leahy was working on related legislation now, staffer said senator had been troubled by “process and substance” of Hatch-Kyl amendment. Amendment, which was passed by voice vote 10 min. after its introduction, was attached to Commerce-Justice-State appropriations bill “without proper deliberation and thought,” he said.

ACLU cautioned Congress this week against “letting our grief and anger” over terrorist attacks lead to an erosion of civil liberties. ACLU Exec. Dir. Anthony Romero said that “obviously there is a need for heightened security,” but there was no indication that increasing wiretapping powers would make U.S. safer: “Terror, by its very nature, is intended not only to kill and destroy. Terror is also designed to intimidate a people and force them to take actions that may not be in their long-term interests. If we allow our freedoms to be undermined, the terrorists will have won.”

Senate is moving Hatch-Kyl wiretap measure without benefit of hearings or extended debate, Rep. Barr (R-Ga.) said. Barr, member of House Judiciary Committee, said in letter this week to Ashcroft that similarly hasty process led to “secret” insertion of roving wiretap language into Intelligence Authorization Report in 1998: “Before we begin dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy, we should first examine why last week’s attacks occurred.”

Steven Aftergood, dir. of Govt. Secrecy Project of Federation of American Scientists (FAS), described Hatch-Kyl measure as “technical amendment that doesn’t encompass a broad range of new authority.” He said “there may be room for change” in Title III, which was “written a long time ago and may not be compatible with the full range of communications activities available today.” However, he agreed that closer scrutiny must be given to attempt to revise electronic surveillance laws as reaction to recent events: “We need to understand whether we fell short in anticipating the terrorist attacks last week before we know what needs to be fixed. I don’t think the selection of amendments last week is going to fix the problem.” As “benign” as proposed changes in Title III may be, FISA “is conducted behind closed doors and with little accountability,” he said.

FISA allows Attorney Gen., with consent of President, to authorize electronic surveillance of foreign agents “without a court order” under certain circumstances. Authorization of wiretaps, physical searches and the seizure of business records related to foreign intelligence gathering within U.S. may be granted for up to full year without court order. That surveillance includes content of communications transmitted by “wire, cable or like connection” intercepted during “transmission of interstate or foreign communications.”

Additional wiretap extension orders may be granted by Foreign Intelligence Surveillance Court, which is composed of 7 Dist. Court judges from 7 U.S. judicial circuits. Any denial of a FISA surveillance application must be reviewed by 3-member panel of federal district or appeals court judges selected by Supreme Court Chief Justice. Requests denied must be “transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.” All records of FISA proceedings, whether granted or denied, “shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.” According to most recent FISA-mandated report to Congress, which was sent to House Speaker Hastert (R-Ill.) on April 27, 2000, all 880 FIS Court applications processed in calendar year 1999 were approved.

U.S. citizens can’t be monitored under FISA orders, and any information that happens to be picked up through such surveillance can’t be “used or disclosed.” However, law allows for exception to that prohibition “if the information indicates the threat of death or serious bodily harm to any person.”