FBI CHIEF PRESSES SENATE PANEL TO MODIFY SURVEILLANCE POWERS
FBI Dir. Robert Mueller urged Senate Judiciary Committee Thurs. to support proposed changes in agency’s electronic surveillance powers, receiving mixed response from panel. He said federal agents currently were restricted from surfing Internet for publicly available information about terrorist group activities. Although 12-year-old could go to Web sites that advocate violence against U.S. or attempt to find recruits for such terrorist activity, current restrictions preclude federal investigators from engaging in such information gathering, he said: “It’s critically important for us to keep abreast of how terrorists are using modern means” of distributing their messages and coordinating activities. Separately, President Bush proposed creating cabinet-level Dept. of Homeland Security that would include an Information Analysis & Infrastructure Protection Div. That proposal received immediate support from several congressional leaders.
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Mueller suggested Congress once again modify Foreign Intelligence Surveillance Act (FISA), which governs surveillance over and seizures of physical evidence from suspected foreign terrorists. FISA became law during Ford Administration to address FBI and CIA spying on civil rights and antiwar activists. Following Sept. 11 terrorist attacks, Congress modified law via Patriot Act, allowing Foreign Intelligence Court to grant surveillance orders as long as investigation of “agents of foreign powers” was “primary,” rather than sole, purpose of federal inquiry.
Ranking Republican Hatch (Utah) said Patriot Act “has worked well,” but asked Mueller whether FISA definition of foreign agents was restrictive. FISA allows court-authorized surveillance under standards less stringent than those under Title III criminal investigations, which require officials to show “probable cause” for wiretap request. Mueller said that definition interfered with FBI’s ability to track “lone wolf” terrorists or people who were suspected of being terrorists but weren’t connected to recognized foreign power. Committee members Kyl (R-Ariz.) and Schumer (D-N.Y.) this week introduced bill that would eliminate “agent of a foreign power” requirement. Mueller said: “I think Congress should take a look at that.”
Chmn. Leahy (D-Vt.) expressed disappointment that Dept. of Justice (DoJ) had failed to keep Congress informed of current reviews of its investigative guidelines: “Why the [DoJ] continues to insist on acting unilaterally and without consulting with the Congress is a mystery to me. The regulations on surveillance of Americans not suspected of any crimes are there for a reason. They were intended to change the culture of the FBI, something members of Congress from both sides of the aisle and the Administration have all recently emphasized.” Leahy said bad publicity about FBI’s handling of Sept. 11 investigation didn’t justify asking Congress to “throw out decades of wisdom.”
Despite that, Leahy praised Mueller for setting priorities for FBI, such as removing agents from wiretapping prostitution rings and reassigning them to counterterrorism units: “I agree with the director that the bureau cannot continue devote scarce manpower and technical surveillance resources to cases that properly fall within state and local jurisdictions.” Leahy also pledged support for requested upgrades of the FBI’s information technology and communications systems.
Sen. Kennedy (D-Mass.) also commended Mueller for his commitment to restructuring the agency and expanding its counterterrorism information-analysis capabilities. However, Kennedy said proposal to revise agency investigative guidelines was troublesome, particularly since it would expand surveillance of people not suspected of criminal or terrorist activity: “I am concerned that some of the changes to the FBI guidelines may undermine First Amendment rights of persons to involved in lawful political dissent and lawful protect activities.”
Center for Democracy & Technology (CDT) Exec. Dir. Jerry Berman said in news conference after hearing that proposed guideline change was “not only unprecedented, but does not bode well for congressional oversight over FBI investigative activity… Revitalized and consistent congressional oversight is vital for protecting our civil liberties and our security.”
Berman said guidelines were raising civil liberties issues because “they are expanding the FBI’s authority well beyond criminal activities.” He said FBI needed to learn how to better analyze information and make predictions, but instead would create new ways of collecting data and become “buried in the information.” He said FBI inevitably would “collect information on a lot of innocent [people].”