At a U.S. Senate Judiciary Committee hearing here, CIA Director Michael Hayden (who until recently headed the National Security Agency) and NSA Director Keith Alexander urged adoption of a proposal that would grant spy agencies more power and current practices more legitimacy. The proposed law amounts to a rewrite of the 1978 wiretapping law called the Foreign Intelligence Surveillance Act.
Under FISA, investigators must file a detailed application and obtain permission from a secret court before eavesdropping on foreign communications in which at least one end is located inside the United States.
But obtaining individual warrants "is less well-suited to provide the agility to detect and prevent attacks against the homeland" than it was during the Cold War era, Hayden said, particularly when investigators are in "hot pursuit" of communications involving al-Qaida and its associates.
The bill in question was announced recently by Pennyslvania Republican Sen. Arlen Specter after extensive negotiations with the White House. It proposes a number of key changes that have been criticized by civil liberties groups. Among other things, it would reduce the amount of information that authorities have to supply in warrant applications to the secret Foreign Intelligence Surveillance Court. It would also allow for blanket approval of current and future electronic surveillance programs--a departure from the existing requirement that individual warrants be obtained for each wiretapping target.
It also makes it optional for the government to obtain court review of the existing NSA terrorist surveillance program. However, Specter and the Bush administration have given repeated assurances that the president will submit thefor review, if the bill passes in the precise form that he wishes.
The intelligence officials argued Wednesday that requirements in the existing statute interfere with their efforts to intercept communications within American borders.
For instance, because of the nature of the, a large amount of phone and Internet traffic happens to be routed through the United States, which means tapping into overseas conversations theoretically requires a court order, Alexander said.
Specter's proposal would give the NSA broader latitude to monitor foreigners suspected of terrorist involvement, regardless of where they are located. Without adoption of those changes, Alexander said, "we frequently sacrifice to detailed and rigorous process one of our greatest advantages in our effort to collect foreign intelligence--the ability to access a vast proportion of the world's communications infrastructure located in our own nation."
The intelligence officials dismissed concerns about the potential for sweeping up Americans in the process. Hayden admitted that the NSA "routinely" deals with information "to, from or about U.S. persons" while doing foreign surveillance but "knows how to do this while protecting U.S. privacy."
But the officials refused, when pressed by committee Democrats, to disclose publicly how many Americans have been monitored, saying only that their targets are "predominantly" foreign and that any "inadvertent" intercepts of Americans' communications are immediately destroyed.
The hearing came largely at the request of the committee's eight Democrats, who criticized the Specter-White House agreement in a joint letter last week. "Many types of surveillance that now require a warrant will no longer require one if your bill is enacted," they wrote.
The few Democrats present on Wednesday continued to assail the Bush administration's authorization of the wiretapping program without the FISA court's prior approval.
"Whether or not FISA is in need of fine-tuning is a legitimate consideration, but FISA's possible imperfections provide no excuse for the administration's flouting of existing law," Sen. Patrick Leahy, the committee's Democratic co-chairman, said of the proposal.
He and other Democrats said they were unconvinced that FISA needs updating, noting that it has already undergone six amendments at the Bush administration's request in the nearly five years since the Sept. 11 attacks.
The Bush administration "wants us to override the constitutional checks and balances that are at the core of our democracy, and we should not yield to that arrogant request," Sen. Edward Kennedy, a Massachusetts Democrat, said in written testimony.
The proposal has drawn, which have called the so-called compromise with the Bush Administration a "sham" and a "capitulation."
They've attacked the measure on a number of fronts. They charge, for instance, that it would erode Fourth Amendment safeguards against unreasonable searches and seizures by requiring less information about the targets of eavesdropping activities before they gain approval from the FISA court. The bill would also sweep all legal challenges to programs, such as the NSA Terrorist Surveillance Program, to the secret court.
"We must retain a means to compel communications companies to provide properly authorized assistance to the government, and we must insulate those companies from liability when they do so," NSA Director Alexander said.
Members of the U.S. House of Representatives Intelligence Committee are also contemplating--one aimed at "modernizing" FISA and the other designed primarily to preserve existing law. A legislative hearing on a FISA modernization bill similar to Specter's proposal is scheduled for Thursday.