[iwar] [fc:Bush.Team.Seeks.Broader.Surveillance.Powers]

From: Fred Cohen (fc@all.net)
Date: 2001-12-03 05:39:14


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Date: Mon, 3 Dec 2001 05:39:14 -0800 (PST)
Subject: [iwar] [fc:Bush.Team.Seeks.Broader.Surveillance.Powers]
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Bush Team Seeks Broader Surveillance Powers


By Jim McGee
Washington Post Staff Writer
Sunday, December 2, 2001; Page A25

The Bush administration is asking Congress for a second major expansion of
federal surveillance powers that legal experts say would radically change
laws that have long protected the rights of Americans.

A Justice Department proposal would eliminate the chief legal safeguard in
the Foreign Intelligence Surveillance Act (FISA). A CIA proposal seeks legal
authority to gather telephone and Internet records from domestic
communication companies.

The still-secret proposals would build upon and expand new
intelligence-gathering powers that were granted to the FBI and the CIA under
the U.S.A. Patriot Act. Signed into law Oct. 26, that anti-terrorism bill
laid the foundation for a larger and more powerful domestic
intelligence-gathering system.

The legislative changes submitted to the House and Senate intelligence
committees are consistent with Bush administration efforts to make
fundamental changes to improve the FBI's intelligence-gathering
capabilities. Attorney General John D. Ashcroft has favored the "disruption"
of what he calls suspected terrorist groups.

The new proposals are part of a broader effort by the administration to
change a complex legal framework that was built after the Watergate scandal
to govern domestic intelligence gathering.

At the Justice Department, lawyers are working on a proposed revision of the
attorney general guidelines, a set of rules that governs FBI domestic
security and foreign counterintelligence operations, a senior government
official said. For 25 years, the guidelines have served as the FBI's
operational template.

The Justice Department asked Congress to remove the key legal restriction on
obtaining wiretaps under the FISA law. The law permits extensive use of
listening devices in espionage and international terrorism cases so long as
the target is connected to a foreign power or international terrorist group.

FISA wiretaps are considered especially sensitive because agents who obtain
them need not have any proof that crimes are being committed, only probable
cause that the target is working on behalf of the foreign power or
terrorists. By contrast, agents who wiretap suspected mob figures or drug
lords must show a judge persuasive evidence that specific crimes are being
committed.

By removing the requirement of a foreign connection, the administration
proposal would make it far easier to mount surveillance on people who have
no known connection to actors overseas.

"This amendment would fill a gap that has become increasingly apparent since
September 11," said the Justice Department proposal, because the requirement
to show a connection with a foreign power "limits the ability of the
President to use this statute against, for example, hijackers or other
terrorists without affiliation or known affiliation with a specific group or
foreign state."

The CIA's proposal would give the agency the same legal authority the FBI
now has to obtain information on foreign intelligence targets from domestic
telephone and Internet service providers.

The new proposals came at the invitation of the Senate and House
intelligence panels, which asked the agencies to submit technical
corrections to the anti-terrorism bill or suggest laws that would help
combat terrorism, according to an informed source.

Ashcroft and FBI Director Robert M. Mueller III declined to be interviewed
for this article, as did CIA Director George J. Tenet. "What is being done
is because of the congressional initiative," said Justice spokeswoman Susan
Dryden. "The Department of Justice has simply provided technical guidance
upon request as we do regularly on countless issues."

Experts in intelligence law say the proposed change to FISA would gut the
law's rationale. "That is an absurd and unnecessary change in my view," said
Kenneth Bass, who oversaw FISA surveillance applications at the Justice
Department. "That is a radical change."

Stuart Baker, a former general counsel at the National Security Agency,
said: "That is a big step. This blurs the line between intelligence and law
enforcement."

The CIA asked for authority to force telephone and Internet service
providers to hand over without a court order information on foreign
intelligence targets living outside the United States who are not U.S.
citizens or legal residents.

The FBI already has this authority. Under the law, the CIA would have the
same authority if the CIA director declares "there is a substantial
likelihood that the communications of the target contain intelligence
information" relating to international terrorism.

"This is pretty audacious," said James X. Dempsey, a lawyer with the Center
for Democracy and Technology and an expert on the legal aspects of
electronic surveillance. "What they are asking for is the ability to carry
out e-mail interceptions without a court order, upon the say-so of the
director of central intelligence."

The proposed new authority for the CIA would be added to new powers granted
under the U.S.A. Patriot Act that gave the CIA access to foreign
intelligence information gathered by domestic grand juries, wiretaps and
criminal investigations conducted by the FBI and other agencies.

A senior U.S. official said this second wave of anti-terrorism measures
reflects the administration's belief that it can harness the political
energy of wartime to gain even more power and autonomy for federal law
enforcement and intelligence agencies.

"A lot of this is not being driven by problems that prosecutors or
investigators are having," the official said. "It is just a good time to get
everything. It is totally politically and public-perception-driven."

"It is turning FISA into a one-stop shop for wiretaps," said Jerry Berman, a
lawyer with the Center for Democracy and Technology who participated in the
drafting of the FISA statute in 1979. "Joe Six Pack thinks they [FISA
wiretaps] are carefully targeted on foreigners and terrorists."

© 2001 The Washington Post Company

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