Meanwhile, the handful of Republicans present at a U.S. House of Representatives Intelligence Committee hearing here, including Chairman Peter Hoekstra of Michigan, touted a new proposal called the Electronic Surveillance Modernization Act. Supporters say its provisions would speed initiation of terrorist investigations and account for use of communications technologies unforeseen by the 28-year-old Foreign Intelligence Surveillance Act (FISA).
"It should be clear that the intelligence community requires additional tools," Hoekstra said at the secondhe has convened in the past week. He went on to argue that the Bush administration launched its terrorist surveillance program in the way it did "because of the deficiencies in FISA and the process used to implement it--not in spite of FISA."
FISA requires investigators to obtain a warrant from a secret court before conducting wiretapping on international communications when at least one end is located in the United States. The controversial National Security Agency terrorist surveillance program,after a December New York Times report, did not receive the FISA court's approval prior to its start, even though officials, such as Attorney General Alberto Gonzales, that ordinary Americans may inadvertently be under surveillance.
The purpose of Thursday's hearing was to hear testimony from the sponsors of three FISA-related bills pending on the House side. It occurred one day after the heads of the Central Intelligence Agency and NSAto update FISA for the 21st century. The officials said it's impractical to use such warrants when tracking technologically savvy, ever-shifting terrorist targets and endorsed a negotiated by Sen. Arlen Specter, a Pennsylvania Republican, and the White House.
"As one who has been briefed on this program, I strongly disagree with (NSA Director) Gen. Alexander," Rep. Jane Harman, a California Democrat who serves as co-chairwoman of the intelligence committee, said Thursday. "The numbers (of targets requiring a warrant) are manageable, and the principle is non-negotiable."
Harman suggested the best way to manage "large volumes" of warrant requests is to beef up staffing and resources at the U.S. Justice Department, which she said would occur if her Democrat-backed bill passes.
The primary sponsor of the competing Electronic Surveillance Modernization Act, New Mexico Republican Heather Wilson, brought props to describe the necessity of her bill, which would permit warrantless surveillance for 45 days after a "terrorist attack" and for two months after an "armed attack" on the United States.
Wilson repeatedly raised a small scrap of paper that she pretended was inscribed with a phone number and retrieved by U.S. forces from a suspected terrorist overseas. If all the investigators have is that single phone number, she mused, they may not be able to come up with the "probable cause" argument needed to justify a warrant from the FISA court. "To get from that piece of litter to a complete FISA application package, that's what takes the time," and that's why more flexibility is needed, she said.
All 10 Democrats appearing at the hearing assailed that bill's approach, saying it amounts to granting a "wish list" to the NSA and the Bush administration. They questioned why additional action is needed now, arguing that the Bush administration has never, until now, complained that the dozen amendments made to FISA after the Sept. 11, 2001 attacks weren't enough.
"We know why we're here really--it is to address the embarrassing fact that the Congress has allowed the president to conduct warrantless surveillance of American citizens in violation of FISA," said Rep. Rush Holt, a New Jersey Democrat. "There's nothing...that leads me to believe we can't protect the security of Americans and do everything that needs to be done within the confines of FISA."
In an unusual show of bipartisan agreement, both Rep. Adam Schiff, a California Democrat, and Rep. Jeff Flake, an Arizona Republican, cast doubt on the Wilson bill, promoting instead a bill they introduced in March. Called the NSA Oversight Act, it says FISA is the "exclusive means" by which domestic surveillance can be approved and would require more extensive briefing to Congress on the extent to which Americans are caught up during the eavesdropping on terrorists. The bill has sponsorship by seven Democrats and seven Republicans.