Wiretap Bill Passes; Senate Measure Removes Restriction
The Senate passed the bill, 90-4, after it shot down an amendment offered by Sen. Dianne Feinstein (D-Calif.) that would have given judges on a special secret court used to handle such requests more discretion to deny government wiretap and search requests when targeting lone suspected terrorists.
Feinstein said the underlying bill authored by Sens. Jon Kyl (R-Ariz.) and Charles Schumer (D-N.Y.) would unnecessarily expand the 1978 Foreign Intelligence Surveillance Act, or FISA, to cover individuals who federal officials suspect are plotting a terrorist attack without first showing that the person is linked to a foreign power or an international terrorist organization.
"I am concerned about zealousness and overreach," Feinstein said.
She said her amendment would have ensured authorities not use the process to probe individual criminal suspects, a possible temptation because FISA warrants are easier to get, cover a longer period of time and are subjected to less judicial review in the secret court that handles them - the Foreign Intelligence Surveillance Court - than in criminal arenas.
Sen. Hillary Rodham Clinton (D-N.Y.) voted for her amendment and Schumer against it; both subsequently voted for the underlying bill.
The so-called lone wolf terrorist bill is meant to fix a problem exposed by the case of Zacarias Moussaoui, a suspected conspirator in the Sept. 11 plot who was once believed to be the 20th hijacker. Moussaoui is now facing trial on terrorist charges in suburban Virginia. The FBI did not seek a warrant to search his computer hard drive, contending it could not link him to al-Qaida, though critics say it simply misread the law.
FISA was intended as a tool to gather foreign intelligence. It allows the Justice Department to seek warrants from the special FISA court to monitor suspected terrorists, but requires the government first to show a foreign power or terrorist organization connection. Showing such links was instituted to balance the government's need to spy for foreign intelligence purposes with constitutional protections against unlawful searches as outlined by the Fourth Amendment.
Critics say the Kyl-Schumer bill would increase the use of wiretaps and searches under the secret FISA court and circumvent criminal courts where prosecutors face more stringent standards and where targets have more rights.
"It's unnecessary. It's nonsensical and very possibly unconstitutional," said James Dempsey, executive director of the Center for Democracy and Technology, a civil liberties advocacy group. "This means that this whole alternative legal structure that has been created in the name of foreign policy and national defense will be used against criminals suspected of what are essentially criminal matters."
Schumer disagrees and said the bill is necessary to combat today's terrorists. "We do not give up any liberty in this bill," he said. He stressed it does not apply to U.S. citizens or those holding green cards.
He added: "We live in a new world. It's a post 9/11 world. We have to adjust to those realities and I believe we can do both, have security and liberty."
The measure now goes to the House, where there is no companion bill. The Justice Department supports the effort, but opposes provisions, including one that sunsets the bill on Dec. 31, 2005, and one that requires the Justice Department make annual reports to Congress about its use, the latter proposal adopted by the Senate on voice vote yesterday.
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