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[] WPO 2.12.01: Bush Team Seeks Broader Surveillance Powers,

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 for a FISA wiretap, 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 original 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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