LEAHY SEEKS CONSENSUS ON WIRETAP PLAN WITH HOUSE JUDICIARY PANEL
Having warned that Congress “must be vigilant on constitutional principles, not vigilantes,” Senate Judiciary Committee Chmn. Leahy (D-Vt.) said he expected to consult with House Judiciary Committee leaders to reach consensus on wiretap and counterterrorism legislation. Leahy said in domestic defense hearing Tues. that committees must move quickly but deliberately on updating Foreign Intelligence Surveillance Act (FISA), which governs electronic surveillance and investigations of agents of foreign powers: “To avoid extended proceedings or the risk that reconciliation never occurs, I intend to reach out to [House Judiciary Committee Chmn.] Sensenbrenner [R-Wis.] and [ranking Democrat] Conyers [Mich.] to see whether we might not combine our efforts in a coordinated and consolidated way from the outset to enact the best consensus measure we can design before Congress adjourns this year.”
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Julian Epstein, former chief Democratic counsel to House Judiciary Committee, agreed with Leahy’s comment that movement of electronic surveillance legislation was contingent upon negotiations with Sensenbrenner and Conyers. He said House panel “is where the bipartisan deal on this will be hatched.” Epstein, who recently left committee to create Law & Media Strategies consulting group, said that as long as basic protections were maintained and standards for wiretap orders weren’t diminished, “Congress should clearly modernize the anachronistic wiretap and surveillance laws, as the Attorney General has asked.”
Leahy’s commitment to work with his House counterparts came day after Sensenbrenner postponed markup on Ashcroft plan. Committee heard Attorney Gen. John Ashcroft’s testimony Mon., and had scheduled markup for Tues. But Sensenbrenner delayed attempt to move measure to full House after contentious debate over provisions involving use in criminal proceedings of wiretaps on U.S. citizens obtained by foreign govts.
Leahy said further consultation with Ashcroft was necessary to iron out any differences between their respective proposals. Ashcroft recently circulated draft bill that he said would provide law enforcement and intelligence agencies with the tools necessary to fight terrorism. Leahy introduced bill with several provisions that also were in Ashcroft measure, including proposed amendment to FISA that would permit multipoint electronic surveillance known as “roving wiretaps.” Roving wiretaps were approved in last Congress for criminal investigations that were subject to Title III surveillance regulations but were not permitted under FISA. Leahy said he and ranking Republican Hatch (Utah) would meet this week with Ashcroft to work on consensus document.
Ashcroft testified that in light of recent terrorist attacks -- in addition to evidence that terrorist cells continued to operate in U.S. -- nation was in “war that will require different kind of tools and different kind of tactics.” He said current wiretap laws were developed in age of rotary phone and were insufficient for investigations involving wireless phones and Internet.
Sen. Grassley (R-Iowa) said he supported enhancements of wiretap laws, but questioned whether FBI was doing sufficient job in analyzing information it already had been collecting. He said FBI had been in possession of documents that indicated possible attacks using airplanes, but didn’t interpret or distribute information in timely fashion: “It seems to me that the FBI needs to do a better job of disseminating information” within agency. Ashcroft agreed that making sure critical information got “up the chain” and was shared among FBI divisions “is the big challenge.”
Sen. Kohl (D-Wis.) raised issue whether anything in Justice proposal could have prevented attacks on World Trade Center and Pentagon. “Shouldn’t we focus on human intelligence?” he asked. Ashcroft agreed that human-based intelligence was as critical as technology-based intelligence gathering, but said detecting and preventing terrorism wasn’t priority under current law: “It’s impossible to say whether if we had every one these [provisions in the proposal] that we would have prevented this attack… There is no way for me to guarantee that we would have known about this effort… [But] we know that without them, we did not prevent it.”
Hatch attempted to dispel notion that rewriting electronic surveillance laws would give govt. broad new powers to monitor citizens. He asked Ashcroft whether proposal would enable DoJ and other investigative authorities to evade court orders in order to carry out wiretaps. Ashcroft said no, reiterating Justice “commitment to protect the constitutional rights and privacy of all Americans.”
Absent from discussion, as well as from previous congressional hearings on matter, was fact that text of FISA clearly allows attorney general to “authorize electronic surveillance without a court order… to acquire foreign intelligence information for periods up to one year.” Various criteria must be met to avoid otherwise necessary court authorization (CD Sept 24 p1), such as limiting such surveillance to interception of communications transmitted “exclusively between or among foreign powers” and from “property or premises under the open or exclusive control of a foreign power.”
Although Attorney General can authorize such wiretaps only when there’s “no substantial likelihood that the surveillance will acquire the contents of any communications” of U.S. citizen or resident aliens,” exceptions can be made under law. Authorities could “use or disclose” such communications if they indicated “threat of death or serious bodily harm to any person.” That information couldn’t be “disclosed, disseminated or used for any purpose for longer than 24 hours” unless court order were obtained or “unless the Attorney General determines” existence of such threats.