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.
The fact of the matter is that at that time there was not even probable cause that Moussaoui was engaged in, or preparing to engage in, international terrorism. The French said he was tied to radical groups, including Chechens, but the United States did not consider them to be terrorists, and there was no mention of any al Qaeda connection.
So it's unlikely that even with the Schumer-Kyl proposed change, that a warrant for Moussaoui, based on what was known pre-9/11, would have been approved.
But the second part of the equation is equally fallacious; that if the agents had gained access to Moussaoui's computer, the information in it could somehow have enabled them to foil the terrorists' plans. In fact, the computer contained information about crop-dusting and flying 747s — perhaps suspicious, but far from a blueprint of the horrors of Sept. 11.
Even combining that arguably innocuous information with the notorious Phoenix memo's recommendation that the FBI check out Middle Easterners enrolled in U.S. flight schools would not likely have unraveled the terrorists' plot.
Some have maintained that if Moussaoui's luggage had also been searched, agents would have found the phone number of a man in Hamburg, Germany, with whom Mohamed Atta had stayed. But pre-9/11, the names of Atta and Bin Al Shibh and Darkazanli would have meant virtually nothing to investigators.
Back to Schumer, With Administration Support
Schumer warned that there may be other terrorists right now plotting on American soil.
"There may be lone wolves out there ... there may be terrorists we just can't link to a foreign power. It shouldn't matter whether we can link them or not. If you're not an American citizen, you don't have a green card, and we have reason to believe you're plotting terrorism, the FBI should be able to do surveillance."
The administration officially supports Schumer-Kyl. The head of Justice's Office of Intelligence Policy Review (OIPR), the office that actually presents FISA applications to the FISA Court, James Baker (no, not that James Baker), testified that this would be "a relatively modest change." Whereas last fall's Patriot Act had addressed the "what" of FISA warrants, this would change the "who."
Baker maintained, "In these times, a single terrorist can present a huge threat to the United States' national security." Echoing Attorney General John Ashcroft's testimony before Senate Judiciary the previous week, Baker pointed out that a single individual could blow up an airplane or send anthrax through the mail. Baker testified that the administration had concluded that the change is constitutional.
Written testimony supplied by the FBI's deputy general counsel, Marion "Spike" Bowman, offered a fascinating history of the genesis and growth of the international jihad movement. But in the hearing he very briefly summarized that three to four years ago the FBI began increasingly to notice that individuals were "doing suspicious things" but had no particular allegiance to any group.
The problems actually began with the Afghan-Soviet war, when 10,000 to 25,000 Muslims from 43 different countries traveled to Afghanistan, where they received military training that was primarily in guerrilla tactics — easily transmuted to terrorist activities — and religious instruction.
They returned to their homes with both the military training and the idea of Muslim brotherhood they'd never had before. But they still faced widespread poverty and unemployment. By 1999, the United States was facing a network of individuals who had learned to work together and spread their ideas throughout the extremist community. And eventually they made their way here.
Bowman said we now face three categories of terrorist suspects: those associated with an identifiable group; those with connections to a number of groups but owing allegiance to none; and those with allegiance to no one. As to this third group, Bowman testified, there is no possibility under current FISA of effectively targeting them.
Interestingly, when asked by Kyl if there is a danger that changing the law could flood the FBI with too much information, Bowman replied no; the FBI is addressing a "discrete group of people." We're not looking at thousands, he said; "I can't even tell you it's hundreds."
Lone Opposition Voice
Only one person on either side of the dais dared oppose Schumer-Kyl; Jerry Berman, executive director of the Center for Democracy and Technology, complained that creating a lone-wolf standard would turn FISA upside down.
Explaining he'd been involved in the drafting of the statute more than 20 years ago, Berman said it was created with the idea of fighting a foreign power. "To say an individual is a foreign power turns FISA upside down."
Berman argued that if investigators are dealing with a lone wolf, they should seek to investigate him by using Title III regular criminal warrants. "That is what should happen with an individual," he maintained — leave FISA for foreign groups, powers, or nations.
Catholic University Professor Clifford Fishman (who demonstrated his profession by appending 11 footnotes to a very brief statement) replied, however, that whereas Title III would "quite often" be "the way to go," sometimes it wouldn't fit. The rules for Title III are quite stringent — they, after all, do apply to U.S. citizens — and they operate in the normal court system, which does not have the same secrecy requirements as the FISA court.
Fishman, in arguing in favor of Schumer-Kyl, also made the interesting point that if the current law applies to groups of as few as two or three members, there's not much difference in having it apply to just one individual. Fishman noted that "in a safer world" he might agree with Berman.
A Possible Compromise
Sen. Dianne Feinstein, D-Calif., made an intriguing suggestion that points the way to a conceivable compromise.
It's important to recall that last fall when there was debate about dropping the requirement in FISA that "the primary purpose" of such a warrant be for intelligence-gathering, it was Feinstein who came up with the midway position of "a significant purpose" that finally won support of almost everyone.
Regarding Schumer-Kyl, although she signaled her inclination to support the amendment, she also brought up the possibility of amending the law to require that agents show a presumption that the target is involved with a foreign power.
She made clear she felt reluctant totally to eliminate the "fundamental justification for FISA," that the U.S. government should be able to probe the actions of nations that are dangerous to us.
Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.