WASHINGTON — President Bush’s spy chief is pushing to expand the government’s surveillance authority at the same time the administration is under attack for stretching its domestic eavesdropping powers.
National Intelligence Director Mike McConnell has circulated a draft bill that would expand the government’s powers under the Foreign Intelligence Surveillance Act, liberalizing how that law can be used.
Known as “FISA,” the 1978 law was passed to allow surveillance in espionage and other foreign intelligence investigations, but still allow federal judges on a secretive panel to ensure protections for U.S. citizens — at home or abroad — and other permanent U.S. residents.
The changes McConnell is seeking mostly affect a cloak-and-dagger category of warrants used to investigate suspected spies, terrorists and other national security threats. The court-approved surveillance could include planting listening devices and hidden cameras, searching luggage and breaking into homes to make copies of computer hard drives.
McConnell, who took over the 16 U.S. spy agencies and their 100,000 employees less than three months ago, is signaling a more aggressive posture for his office and will lay out his broad priorities on Wednesday as part of a 100-day plan.
The retired Navy vice admiral recently met with leaders at the National Security Agency, Justice Department and other agencies to learn more about the rules they operate under and what ties their hands, according to officials familiar with the discussions and McConnell’s proposals. The officials described them on condition that they not be identified because the plans are still being developed.
According to officials familiar with the draft changes to FISA, McConnell wants to:
- Give the NSA the power to monitor foreigners without seeking FISA court approval, even if the surveillance is conducted by tapping phones and e-mail accounts in the United States. “Determinations about whether a court order is required should be based on considerations about the target of the surveillance, rather than the particular means of communication or the location from which the surveillance is being conducted,” NSA Director Keith Alexander told the Senate last year.
- Clarify the standards the FBI and NSA must use to get court orders for basic information about calls and e-mails — such as the number dialed, e-mail address, or time and date of the communications. Civil liberties advocates contend the change will make it too easy for the government to access this information.
- Triple the life span of a FISA warrant for a non-U.S. citizen from 120 days to one year, allowing the government to monitor much longer without checking back in with a judge.
- Give telecommunications companies immunity from civil liability for their cooperation with Bush’s terrorist surveillance program. Pending lawsuits against companies including Verizon and AT&T allege they violated privacy laws by giving phone records to the NSA for the program.
- Extend from 72 hours to one week the amount of time the government can conduct surveillance without a court order in emergencies.
McConnell, Alexander and a senior Justice Department official will appear at a Senate Intelligence Committee hearing on April 17 to discuss whether to amend the FISA law. Chad Kolton, McConnell’s spokesman, declined to comment on the director’s proposals.
Government officials have been publicly and privately discussing changes to FISA since last year. A senior intelligence official said the goal is to update the law to ensure Americans’ constitutional protection against unreasonable search and seizure, while improving use of government resources to pursue threats against U.S. interests.
Critics question whether the changes are needed and worry about what the Bush administration has in store, given a rash of allegations about domestic surveillance and abuse of power. “Congress should certainly be very skeptical about proposals to give this government greater powers to spy on its own citizens,” said Caroline Fredrickson, the Washington legislative office director for the American Civil Liberties Union.
The proposed changes to domestic surveillance would be so broad that “you have basically done away with the protections of the FISA,” said Kate Martin, head of the Center for National Security Studies.
Rep. Heather Wilson, R-N.M., who unsuccessfully sponsored legislation last year to update FISA, said Congress must act because current court orders bolstering the president’s terrorist surveillance program are legally shaky. She wants the law to be rewritten to ensure the NSA can continue the program.
Bush has faced months of criticism for his 2001 decision to order the NSA to monitor the international calls and e-mails of U.S. citizens when terrorism is suspected. More recently, the Justice Department and FBI have been sharply rebuked for bad bookkeeping and other mistakes involving their powers under the USA Patriot Act to secretly demand Americans’ e-mail, financial and other personal records through so-called national security letters. Top government officials have tried to dampen the outrage by promising accountability and have argued that the letters are essential tools to protect against terror threats.
McConnell hinted at his discomfort with current laws last week during a speech before an audience of government executives, saying he worries that current laws and regulations prevent intelligence agencies from using all of their capabilities to protect the nation.
“That’s the big challenge going forward,” he said, acknowledging changes would require significant congressional debate.
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