Quick Fix for Terrorist Surveillance Law?

The intelligence committees in Congress are working to approve a stopgap measure to update the law that governs electronic surveillance of terrorist targets before the August recess, which begins at week’s end.

Democrats are hopeful that a new compromise bill--aimed at making the intelligence community more nimble in monitoring terrorist communications that may cross into the United States at some point--can win broader bipartisan support.

For months, the director of national intelligence has been requesting a substantial update to the 1978 Foreign Intelligence Surveillance Act, which created a secret court to review applications from intelligence agencies to conduct eavesdropping operations on suspected spies or terrorists. But the reform proposals became mired in controversy after the revelation of a National Security Agency program that conducted eavesdropping without a warrant on calls between people inside the United States and terrorist suspects overseas.

The new Democratic proposal is a response to an urgent request from Director of National Intelligence Mike McConnell to produce a stopgap measure that would give the attorney general broader power to approve surveillance without a warrant of targets believed to be overseas. Intelligence officials have long been concerned about the gap between intelligence agencies and law enforcement agencies when it comes to foreign terrorists trying to stage domestic operations.

McConnell told members of Congress that “a significant new burden has emerged that makes it necessary to amend the FISA law,” says Sen. Kit Bond, the ranking Republican on the Senate Intelligence Committee. “Now we are significantly burdened in capturing foreign communications of foreign terrorists.” He would not describe the new obstacle, but sources say it is of a legal nature.
Democrats, for their part, who originally proposed requiring FISA warrants to permit eavesdropping on individual terrorist suspects overseas, are still insisting that the FISA play some sort of role in approving this kind of surveillance.

But mindful of DNI complaints that the FISA applications can be a slow, burdensome process, the new Democratic proposal would require the FISA court to approve the methods that the attorney general would use to determine whether the intended terrorist target is indeed overseas. The attorney general would not have to apply for individual warrants but would have to submit to the FISA court the methods he intends to use to “reasonably determine” that a suspect is outside the United States. FISA approval would be good for up to a year.

--Kevin Whitelaw