Senate Approves Greater Secret Search and Wiretap Powers

Update: The bill the Senate passed today is actually the same as the first section of Patriot Act II, which the Administration repeatedly has told us is a rough draft.
Section 101: Individual Terrorists as Foreign Powers. Under 50 U.S.C. § 1801(a)(4), the definition of "foreign power" includes groups that engage in international terrorism, but does not reach unaffiliated individuals who do so. As a result, investigations of "lone wolf" terrorists or "sleeper cells" may not be authorized under FISA. Such investigations therefore must proceed under the stricter standards and shorter time periods set forth in Title III, potentially resulting in unnecessary and dangerous delays and greater administrative burden. This provision would expand FISA's definition of "foreign power" to include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism.
Could this be the beginning of an attempt to pass the provisions of Patriot Act II piecemeal, thereby avoiding the controversial label "Patriot Act II" ? If another section of PA II gets introduced and passed this way, we foresee a monumental problem. The Schumer-Kyl bill was originally introduced on January 9, the same date on the draft of Patriot Act II. A coincidence? The Schumer-Kyl bill is S. 113.
The purpose of S. 113 is to amend the Foreign Intelligence Surveillance Act of 1978 (FISA), title 50, United States Code, to permit surveillance of so-called `lone wolf' foreign terrorists. S. 113 would allow a FISA warrant to issue upon probable cause that a non-United States person is engaged in or preparing for international terrorism, without requiring a specific showing that the non-United States person also is affiliated with a foreign power. By eliminating the requirement of a foreign-power link for FISA warrants in such cases, S. 113 would allow U.S. intelligence agencies to monitor foreign terrorists who, though not affiliated with a group or government, pose a serious threat to the people of the United States. In light of the significant risk of devastating attacks that can be carried out by non-United States persons acting alone, individual terrorists must be monitored and stopped, regardless of whether they operate in coordination with other individuals or organizations.

Update: The New York Times reports the overwhelming support for today's bill was the result of a compromise in which Senator Hatch pulled his request to repeal the sunset provisions of the Patriot Act.


"The Senate on Thursday overwhelmingly approved a bill intended to close a legal loophole that lawmakers say prevented the FBI from obtaining a crucial warrant to conduct surveillance of Zacarias Moussaoui before the Sept. 11 attacks."

"The legislation, known as the 'Moussaoui fix,' was approved 90-4. It would make it easier for the FBI to seek warrants for wiretaps and searches on non-Americans suspected of planning terrorist attacks, by eliminating a requirement to show the suspect was connected to a known terrorist group or a country that sponsors terrorism."

We don't see this as closing a loophole but as giving the Government new powers. The current law only allows secret FISA wiretaps and searches if the target is the agent of a foreign power or organization. The "fix" will allow secret FISA wiretaps and searches if the Government can't link the target to a terror organization.

The bill is also known as the "lone wolf" bill and was introduced by Senators Charles Schumer (D-NY) and John Kyl (R-AZ). It passed easily today, 94 to 6, and now goes to the House.

Senator Patrick Leahy of Vermont criticized the bill, saying it wouldn't make Americans any safer. An amendment sought by Senator Dianne Feinstein was rejected.

Once again we are moving in the direction of giving more power to prosecutors with less judicial oversight. FISA judges must rubber stamp secret FISA applications for eavesdropping so long as the application is filled out correctly. They don't weigh the merits of the request. There is no disclosure of whether the warrants produce useful information so Congress can make sure the power isn't being misused by the Executive Branch. All that has to be disclosed is the total number of applications made and how many were granted or refused.

For more on the issue of FISA warrants, our prior coverage is here. Chisum Lee of the Village Voice recently wrote about Schumer and his quest to pass this bill in an article called "Ashcroft's New Ally."

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