The Senate Intelligence Committee held a hearing Wednesday on suggested changes to the Foreign Intelligence Surveillance Act — one of our favorite subjects, Gentle Readers.
Although some of it was arcane or abstruse, it's such an important subject that I just have to tell you about it. Sens. Charles Schumer, D-N.Y., and Jon Kyl, R-Ariz., have proposed a deceptively simple change to the law that would, they say, allow the FBI to engage in surveillance or searches of foreign individuals even if it could not be shown that the target is an agent of a foreign power.
This, they argue, would allow the FBI to go after the "lone wolf," or would have permitted — they contend — a FISA warrant in the case of Zacarias Moussaoui.
Here's the argument Schumer advances: "We've learned from the disclosures regarding Zacarias Moussaoui, the so-called 20th hijacker, that even though the FBI had abundant reason to be suspicious of him before 9/11, it didn't act. It didn't seek a warrant to try to dig up the evidence that may have been the thread which, if pulled, would have unraveled the terrorists' plans. And one reason the FBI didn't seek that warrant is that the bar for seeking those warrants is simply set too high."
Schumer-Kyl, S.2586, would retain the requirement that the government show the target is engaging in or preparing to engage in international terrorism, and that a significant purpose of the surveillance is foreign intelligence gathering. But there would no longer be a requirement to show probable cause that the target is an agent of a foreign power.
FISA, 50 USC 1801, currently lists a six-part definition of the term "foreign power," including: "(4) a group engaged in international terrorism or activities in preparation therefor." Schumer-Kyl would change that to: (4) any person, other than a United States person, or group that is engaged in international terrorism or activities in preparation therefor" [emphasis added].
A "United States person" is a citizen or a permanent resident alien, otherwise known as a green card-holder. So this change would apply only to non-U.S. persons. As one observer noted, some on the Hill don't believe foreigners in this country should enjoy any constitutional protections.
Schumer told the hearing that if the FBI had not been required to show that Moussaoui was an agent of a foreign power, agents "could have searched his computer files and, perhaps, come up with information needed to foil the hijackers' plans. And that may have been enough to force someone to put two and two together — to add the Moussaoui information with the Phoenix memo and realize something truly horrible was afoot."
A Slight and Momentary Digression
This argument, of course, has now become received wisdom in this town. Everybody now believes absolutely that the Minneapolis FBI was right. In her scathing memo to FBI chief Robert Mueller detailing the failed battle her field office waged for search warrants in the Moussaoui case, agent Coleen Rowley knew exactly what she was ranting about (despite the fact she told the Senate Judiciary Committee she's not really that familiar with FISA) — the agents at headquarters were cowards or idiots for not approving the warrant.