LEAHY DRAFT BILL WOULD REQUIRE MORE DISCLOSURE OF WIRETAP DATA

FISC annually releases to House and Senate Intelligence committees number of wiretap orders it approves each calendar year, but typically this is only data that become publicly available. Committee spokesman later said there was bipartisan interest in Leahy draft, which contains language seeking disclosure of aggregate data on electronic surveillance authorized by FISC.

Committee spokesman said Leahy intended to discuss issue with House Judiciary Committee, which also has expressed concern about FBI abuses of FISA wiretap authority. Chmn. James Sensenbrenner (R-Wis.) and ranking Democrat Conyers (Mich.) unsuccessfully have sought information from Attorney Gen. John Ashcroft on how many U.S. citizens have been investigated under FISA, specifically since passage of Patriot Act, which changed “purpose” language of FISA. Before Patriot Act, foreign intelligence gathering had to be “primary” purpose of FISA wiretap request. New law changed that requirement to “significant” purpose of surveillance, which supporters said was logical solution to easing barriers to information-sharing between intelligence and law enforcement officials.

Ranking Republican Hatch (Utah) was only committee member to defend implementation of FISA, saying that problems with law occurred during Clinton Administration and were being corrected by DoJ. He suggested committee carefully scrutinize any proposals to modify law further: “This committee’s inquiry should be forward looking and done without exaggeration of past missteps and miscues which have since been corrected. The stakes are simply too high for anyone to inject politics into an area which requires careful and studied deliberation.” Senate Judiciary Antitrust Subcommittee ranking Republican DeWine (O.) also cautioned against watering down FISA, which he described as “one of the most important tools in the fight against terrorism.” Despite DeWine’s support for FISA, he said that in light of FISC’s secrecy “it is impossible to know how it’s being implemented.”

Leahy and several other committee members lambasted DoJ and FBI for abusing their authority to perform wiretaps in criminal investigations using less-stringent requirements under FISA. Wiretaps and seizures of business records are permitted under FISA when govt. demonstrates that such actions are relevant to national security surveillance matters, as contrasted to criminal cases where greater standard of relevance must be proved under Title III. Committee last month released declassified FISC opinion that revealed that FBI regularly had provided false information to court, abuse of authority that made it easier for agency to carry out criminal wiretaps under guise of foreign intelligence gathering. It was 2nd opinion -- and first to be published and distributed -- since court was established in 1978.

Leahy recognized importance of maintaining secrecy in certain investigations but lamented that “the basic facts of the FISA process” have been developed and kept behind closed doors: “Even the most general information on FISA surveillance, including how often FISA surveillance targets Americans, or how often FISA surveillance is used in criminal cases, is unknown to the public.”

Sen. Feingold (D-Wis.), sole member of Senate last year to vote against Patriot Act, said abuses revealed by FISC “are precisely why I didn’t vote” in favor of bill. He said: “In our haste to develop legislation to help America, we went too far in some areas.”

Despite being vocal proponent of loosened restrictions on FISA wiretap requirements following last year’s terrorist attacks, Senate Judiciary Technology Subcommittee Chmn. Feinstein (D-Cal.) criticized DoJ’s interpretation of FISA as amended by Patriot Act. She said purpose of those changes was to “lower the bar slightly, but not entirely.” She pointed out that Ashcroft in last year’s hearings had said significant purpose standard was acceptable compromise with Administration’s proposal to make intelligence gathering simply “a” purpose for FISA wiretaps: “I don’t think any of us thought the answer to the problem… was to merge FISA and Title III… Apparently, the [DoJ and FBI] believe they can get a FISA order even if it’s 80 or 90% law enforcement related. I disagree with that.”

Senate Judiciary Crime Subcommittee ranking Republican Specter (Pa.) said Justice continued to withhold data from committee and said he would continue to press department to comply with panel’s requests. He said that since FISC opinion revealed details of FBI wiretap abuses, “now we know why the [DoJ] wouldn’t give it to us.” Specter said he wanted Ashcroft and FBI Dir. Robert Mueller to explain how FISC had permanently banned unnamed FBI agent from applying for FISA wiretap orders: “We're not going to drop the matter. We're going to pursue it.”

Another issue critical to review of FBI wiretaps under FISA is assessment of “minimization rules” that were modified by Justice after passage of Patriot Act. FISC said DoJ had expanded, rather than limited, handling of FISA data on Americans. Provisions in new procedures enable federal prosecutors, rather than court, to advise FBI on FISA data collection and dissemination, it said. Court said those procedures violated congressional directive that minimization rules be “reasonably designed” and “consistent with the need of the [U.S.] to obtain, produce or disseminate foreign intelligence” rather than criminal information. It deleted and replaced segments of procedures to prevent DoJ’s Criminal Div. from “directing or controlling the investigation using FISA surveillances and searches toward law enforcement objectives.”

DoJ has appealed that decision, which Mon. underwent review -- first ever -- by Foreign Intelligence Surveillance Appeals Court. Proceeding has been shielded from public as well from Congress and involved presentations only by Bush Administration officials. ACLU denounced secret appellate review. Ann Beeson, ACLU’s dir.-Technology & Liberty Program, said: “Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy.”

Assoc. Deputy Attorney Gen. David Kris defended DoJ’s appeal of FISC opinion, which he said imposed restrictions on investigators that weren’t specifically spelled out by statute. He also said that Patriot Act hadn’t changed govt. accountability required under FISA: “As always, FISA continues to require advance judicial approval for almost all electronic surveillance and physical searches. As always, every FISA application must be personally signed and certified by a high-ranking and politically accountable Executive Branch official, such as the director of the FBI.”