July 19, 2006 4:00 PM PDT
Spy law changes divide House panel
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For some, the answer was clear. The 1978 Foreign Intelligence Surveillance Act, or FISA, is "obsolete and needs modernizing," said Committee Chairman Peter Hoekstra, a Michigan Republican.
His Democratic co-chairwoman, Rep. Jane Harman of California, wasn't so convinced. "I think this is a very careful system, and we change it at our peril if we aren't very thoughtful," she said. "I think we need (Bush) administration witnesses, and we need to understand what changes are necessary."
Harman, backed by 59 other Democrats, is the chief sponsor of a bill designed to preserve FISA as the sole law governing electronic surveillance.
Meanwhile, Hoekstra, fellow committee Republican Heather Wilson of New Mexico, and House Judiciary Committee Chairman Jim Sensenbrenner introduced a new bill on Tuesday aimed at giving the statute what they call a 21st century modernization.
A copy of the bill was not readily available when requested by CNET News.com. A summary posted at Wilson's Web site said the "Electronic Surveillance Modernization Act of 2006" would, among other things, allow the president to authorize wiretapping to gather foreign intelligence information without a court order for up to 45 days after a terrorist attack against the United States.
It would also reduce the amount of information that applicants for FISA warrants must provide, "including minimizing the detailed description of the nature of foreign intelligence information sought and the detailed descriptions of the intended method of collection."
Richard Posner, a federal appellate judge and lecturer at the University of Chicago Law School, said he agreed with the politicians who say FISA is in need of an overhaul, primarily because of its dependence on warrants. "Warrants are designed for a situation in which the crime has been committed, a focused investigation is possible," Posner said. "The challenge for intelligence is not to track down known terrorists; it's to find out who the terrorists are, and the warrant will not do that."
American Bar Association President Michael Greco rejected that idea, arguing that FISA is entirely adequate for serving the government's needs and that changing the use of warrants would fundamentally erode constitutional protections.
Jim Dempsey, policy director for the Center for Democracy and Technology, said he agreed that the administration has not yet made a case for changes to FISA and warned the politicians against legislating prematurely. He also urged them not to get caught up in the "persuasive" rhetoric offered by Bush administration officials in closed-door briefings and called for additional public hearings. "The hardest-working, most dedicated public servants, acting in secret, are not going to be able to get it all right," he said.
The measures backed by House Intelligence Committee members are competing with a number of related proposals in both houses of Congress.
Most notably, a new uproar from civil liberties advocates ensued late last week over a draft bill negotiated by Pennsylvania Republican Arlen Specter, chairman of the Senate Judiciary Committee, and the White House. That bill would authorize the Foreign Intelligence Surveillance Court to review electronic surveillance programs such as the one involving the NSA but would not require it.
"It unwisely would allow the court to authorize an entire electronic surveillance program rather than individual warrant applications as required by the Fourth Amendment," Greco said. "The last time I checked, the Fourth Amendment is still in the Bill of Rights."