A Better Way to Eavesdrop?

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The Senate Judiciary Committee plans to hold a hearing Monday on the National Security Agency's controversial secret domestic spying program—and already the Justice Department is balking at turning over its legal opinions justifying the electronic surveillance of Americans without a court warrant. But there's a bigger problem committee chairman Arlen Specter and the panel's other members face than simply getting Justice to cough up documents. Exactly how should the 1978 Foreign Intelligence Surveillance Act, which requires the Justice Department to obtain a warrant from a special FISA court before wiretapping anyone in the U.S., be updated to give the NSA more flexibility in spying on suspected terrorists?

It's a question that Specter and other senators have already been informally discussing, but they aren't likely to find an easy answer. The first problem, and one of the reasons some lawmakers have stopped short of putting pen to paper, is that "they still don't know what Bush is actually doing with this program," says one Congressional expert in bill drafting. Only a few top members of Congress have been briefed on the highly classified NSA program, and some of them have complained that those briefings have been frustratingly short on details. Congressional staffers well versed in the ways of the NSA suspect the agency is doing more than simply listening in on foreign calls to this country; they believe there might be some broader data mining involved. "You could sit down with clever lawyers and figure out a thousand ways to fix the law," says the congressional expert. "But people first need to know what Bush is actually doing, which they really don't."

The President and his top aides deny that the program involves anything more than listening in on the calls that suspected al Qaeda operatives overseas are making to the United States. And since legislation passed after 9/11 gives him that authority as part of the war on terror, they argue, the President does not need to go to Congress for any new authority. "[This] is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations" in a data mining exercise, says General Michael Hayden, the deputy director of national intelligence and former NSA chief. "This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda." Bush also worries that if Congress steps in with legislation that gives legal cover for the monitoring NSA now does—which would mean public hearings on the bill and legislative language for everyone to see—"we'll show the enemy what we're doing."

The Administration's main stated argument against the FISA court process is that obtaining warrants beforehand is simply too time-consuming in today's fast-paced world. But if speed were the only issue, there are some relatively easy fixes. The legal standard Justice Department lawyers must meet to obtain a FISA wiretap warrant could be lowered from the current threshold that there's "probable cause" to believe a crime has been committed or about to be committed. The paperwork required with a FISA warrant application could be trimmed. In emergencies, FISA now allows the attorney general to approve a wiretap as long as he gets court authorization within 72 hours; that time frame could be lengthened. FISA could also be changed to give intelligence agencies the authority to quickly monitor many phone numbers at once or to allow the President, if he had reason to believe a terror attack was imminent, to order the NSA to sweep American airwaves for a short time without going to the court.

But White House officials knowledgeable about the FISA process and NSA's surveillance capability say the problem isn't simply the time it takes to obtain a warrant. If it were to be altered, FISA must be changed "for a different sort of coverage by NSA," explains one administration official. "FISA was very much focused on getting one particular guy," says this administration official. "It was very much like a wiretap in a criminal case. You go to court and you have probable cause to believe a person has committed a crime. So you go to FISA and get a wiretap. It was set up that way because you knew [the suspect] you were dealing with. But in this case you have this amorphous group of people around the world who are all calling people in the U.S. You may not know whom they're calling in the U.S., but you know the person overseas making the call is a bad guy. Most Americans would say, gee, that's unusual. But FISA doesn't fit that situation. So you need new legislation."

Ironically, even as the NSA was launching its warrantless wiretap program in 2002, the Justice Department was rejecting a Republican senator's efforts to make it easier for the NSA to spy legally on persons in the U.S. In the summer of 2002, Ohio Republican Sen. Mike DeWine introduced a bill to lower the level of proof the Justice Department and spy agencies would need to get a FISA warrant to wiretap foreigners, or non-U.S. citizens, who were in the United States. For these "non-U.S. persons" only, the threshold would drop from "probable cause" to "reasonable suspicion," which has long been a recognized standard in U.S. courts. However, at a July 31, 2002, Senate Intelligence Committee hearing on DeWine's bill, James A. Baker, counsel for intelligence policy at the Justice Department, testified that the change in evidentiary standard DeWine proposed for FISA "raises both significant legal and practical issues."

In any case, Justice officials claim that the secret NSA program has always used the "probable cause" standard even when a FISA warrant hadn't been obtained. But that explanation doesn't hold water with some legal experts. Last week, General Hayden himself admitted that in cases where the NSA does not first go to the courts, "the trigger is quicker and a bit softer than it is for a FISA warrant." Putting it more bluntly, Philip B. Heymann, a former Clinton Administration deputy attorney general, says, "The only reason they are doing warrantless searches is because they want to do them on considerably less basis than probable cause—and I would guess on less than reasonable suspicion."

Probable cause? Reasonable suspicion? Those kinds of semantic battles virtually guarantee that writing any new FISA law will tie Congress up in knots for quite a while. But Heymann, like many other critics of the warrantless wiretapping program, believes that the first sentence for any new FISA law, regardless of how else it is amended, should make one thing absolutely clear: "That the president shouldn't be doing things that the statute prohibits him from doing."