Rough ride for FISA update law

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WASHINGTON, DC, United States (UPI) -- Senior Bush administration intelligence officials face tough questions Tuesday when they take their proposal for modernizing U.S. surveillance legislation before skeptical senators.

Recent poll data shows the U.S. public supports the idea that officials should always have to get a warrant before eavesdropping on Americans -- something that would not be necessary under certain circumstances if the administration`s planned changes to the 1978 Foreign Intelligence Surveillance Act are passed into law.

A United Press International/Zogby poll of nearly 6,000 representative Americans found that 61 percent agreed or strongly agreed that the government should always have to get a warrant before monitoring the phone calls or e-mails of U.S. citizens and legal immigrants. Only 36 percent disagreed.

Director of National Intelligence Michael McConnell, Director of the National Security Agency Lt. Gen. Keith Alexander and Assistant Attorney General for National Security Kenneth Wainstein were scheduled to present their plan for a modernization of FISA to the Senate Select Committee on Intelligence Tuesday afternoon. They will face lawmakers angry at the administration`s documented abuse of some of the new investigative powers Congress gave them in the wake of the Sept. 11, 2001, terrorist attacks.

'They`ll get some tough questions,' predicted a senior committee staffer. 'There are people who are skeptical about this proposal.'

He said it was by no means sure whether committee Chairman Jay Rockefeller, D-W.Va., would back an overhaul of the law. 'He has called this hearing to hear the case' officials want to make, the staffer said.

The staffer added officials would be questioned 'about how they`ve used other powers Congress gave them,' a reference to a recent Department of Justice inspector general`s report that found widespread abuse by the FBI of so-called National Security Letters -- a form of administrative subpoena that the bureau was given much broader authority to issue in the suite of hurriedly passed anti-terror laws called the 2001 USA Patriot Act.

Other congressional staff said the administration`s task in pushing the overhaul is further complicated by the fact that a competing bill is being considered by the Senate Judiciary Committee.

That bill, say its Senate backers -- ranking member Arlen Specter, R-Pa., and Dianne Feinstein, D-Calif. -- clarifies and strengthens the role of FISA as the sole basis of legal authority for electronic surveillance of Americans in their own country.

The bill is designed to end any ambiguity about the intent of Congress, which some say the administration exploited in claiming the president`s inherent constitutional authority to order foreign intelligence wiretaps as the justification for warrantless monitoring of overseas communications by Americans under Bush`s Terrorist Surveillance Program.

Feinstein`s 'concern has always been that FISA should be the exclusive (source of) authority for wiretapping U.S. persons on U.S. soil for foreign intelligence purposes,' said her spokesman, Scott Gerber.

Feinstein is one of a handful of senators who are members of both the Intelligence and Judiciary committees and she planned to attend Tuesday`s hearing, according to Gerber.

The two committees share jurisdiction over FISA, said the intelligence staffer, and would have to work together on any proposal. 'If we decide to move ahead with (a bill), they get a go at (amending) it, and if they move this one, then we get a crack at (amending) that.'

Officials argue that FISA, nearly 30 years old, is an outdated law that has been rendered archaic by changes in communications technology and practices.

The argument is laid out in an analysis of the proposed changes submitted along with them by their administration authors to Congress.

The law`s original drafters 'used language that was technology dependent and related specifically to the telecommunications systems that existed at that time,' reads the analysis, explaining why officials want to change the definition of electronic surveillance the law employs.

'As a result of revolutions in communications technology since 1978, and not any considered judgment of Congress, the current definition of `electronic surveillance` sweeps in surveillance activities that Congress intended to exclude from FISA`s scope.'

For instance, officials have said that FISA covers many conversations between foreign nationals outside of the United States simply because the calls are routed through U.S. telecommunications hubs.

The proposed change, according to the analysis, 'provides a new, technologically neutral definition of `electronic surveillance` focused on the core question of who is the subject of the surveillance rather than on how or where the communication is intercepted.'

But critics say that, under the guise of updating the law, the administration is seeking a massive expansion in its authorities to eavesdrop on Americans.

'This isn`t a modernization bill, it`s a freedom to snoop law,' said Tim Sparapani, legislative counsel for the American Civil Liberties Union, which has been lobbying staff and senators against the proposals that it says are a 'power grab' by the administration.

One of the changes in the definition of 'electronic surveillance' would mean that the collection of so-called metadata -- information about the origin, destination and duration of calls and e-mails, but not their content -- from purely domestic communications would no longer be covered, and therefore would no longer require a warrant.

The National Security Agency is believed to have the capacity to vacuum up and analyze such data, looking for patterns and connections that might reveal terrorists or their activities.

'It is incredible,' said Sparapani, 'under the guise of modernization, they want to turn this huge vacuum cleaner on the American people.'

He said the distinctions in the 1978 legislation reflected the different expectations of privacy that users of different technologies had, and the administration was seeking to blur those important distinctions.

'This is not a slippery slope, so much as a waterfall,' he said. 'You step over it and you are gone.'

Other critics acknowledge the legislation does need updating, but the UPI/Zogby poll shows little appetite for any diminution of the principle that the government should get a warrant before wiretapping Americans.

Republicans were the most amenable to the idea, with only 31 percent agreeing that authorities 'should always be required to get a warrant.' Sixty-seven percent disagreed, compared with just 36 percent in the general population.

But among key swing constituencies, like self-described moderates, support for always requiring a warrant was stronger than in the general population -- 72 percent compared to 61 percent.

The poll administered online to 5,932 adults April 13-16 has a margin of error of 1.3 percentage points.