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As the U.S. Congress weighs anti-terrorism measures, two little words — “the” and “a” — in the Bush administration’s proposals have re-ignited a decades-old debate over the line between information gathered for intelligence purposes and for criminal prosecutions, and the constitutional standards overlaying each. “This is the whole enchilada,” says Jerry Berman, executive director of the Washington, D.C.-based Center for Democracy and Technology, a member of a broad coalition of conservative and liberal groups monitoring the legislative response to the Sept. 11 terrorist attacks on the United States. The two little words figure in a proposed amendment to the Foreign Intelligence Surveillance Act of 1978 (FISA), which threatens to alter a carefully crafted balance between national security and civil liberties more sweepingly and immediately than any other proposal in the administration’s package, according to Berman, former government intelligence officials and others. The surveillance act was passed in the wake of the so-called Church Committee’s report on illegal wiretaps and break-ins conducted by the FBI during the civil rights and anti-war movements. Congress tried to strike a balance between the need for intelligence gathering and the protection of civil liberties. Although the act has “Foreign” in its title, it authorizes the government to conduct secret electronic surveillance and physical searches of agents of foreign powers, including U.S. citizens at home and abroad. The act established the secret Foreign Intelligence Surveillance Court, composed of federal district judges who are appointed on a rotating basis by the chief justice of the United States. The court considers the government’s applications for electronic surveillance. The trade-off is that in return for a standard for approving the surveillance application that is less demanding than what is required for approval of a criminal wiretap, the surveillance act can be used only if foreign intelligence gathering — not criminal prosecution — is “the” purpose of the surveillance. In its anti-terrorism proposals, the administration wants Congress to make intelligence gathering “a” purpose, not the sole, primary purpose. Replacing “the” with “a” would work a “fundamental change” in congressional intent behind the law and would eliminate the safeguards for abuses that the statute was designed to overcome, says Kate Martin, director of the Center for National Studies. It is the kind of change that Congress should think “very hard” about and not be pressured into acting quickly, says Elizabeth Rindskopf Parker, a former general counsel of the Central Intelligence Agency and the National Security Agency (NSA) and now general counsel to the University of Wisconsin. Berman, who followed the drafting of the surveillance act as a legislative counsel at the American Civil Liberties Union, agreed. “Eighty percent of this bill is worth doing, but this 20 percent, dealing with very complicated laws written for specific reasons — to promote intelligence gathering and protect civil liberties — you need time to understand them, vet them and take a deep breath before acting,” he says. SPEEDING TARGET The administration’s proposals are a fast-moving target as the president has urged Congress to get him a package by this Friday. But lawmakers have slowed the process after hearings on the package, which proposes changes in essentially three key areas: intelligence gathering, criminal law and immigration. “There are enough legitimate concerns that nobody should rush it through the same day,” says Kenneth C. Bass III of Washington, D.C.’s Venable, a former counsel for intelligence policy in the Department of Justice. “I don’t see us over-reacting in the way I feared or thought we would in the first few days. Yes, there need to be some changes, but we don’t need to suspend the Constitution in the process.” For civil liberties and electronic privacy groups, the proposed change in purpose is the linchpin for other proposed changes in intelligence gathering. Other changes include repealing the ban on disclosing Title III (wiretap statute) intercepts of citizens’ conversations to the intelligence community other than the FBI; repealing prohibitions on sharing grand jury and other criminal investigation information with the intelligence community; allowing wiretap evidence obtained by a foreign government, even if in violation of Fourth Amendment standards, to be used against U.S. citizens in U.S. courts; permitting roving taps in intelligence investigations, not just criminal investigations; and allowing the use of administrative subpoenas, rather than a court application, to get business records under the act. Professor Barry Kellman of Chicago’s DePaul University College of Law, who teaches law and national security, doesn’t view the administration’s proposals as “major changes” in the surveillance act. “The general concern is that the provisions be limited to terrorism and not be so broadly drafted that they apply to any federal crime,” he says. “How we do that gets into a lot of technical issues.” For example, he says, he thinks the proposed change in the definition of who is a target of surveillance is too broad. The definition would be extended from a formal agent of a foreign power to someone working on behalf of a foreign power. “It’s a lot harder to define precisely who that doesn’t include,” Kellman says. “We don’t want a lot of tree huggers in federal parks to suddenly find their phones tapped.” There is general agreement that the administration will get the law amended to bring it into line with technological changes. More troublesome for some are the information-sharing provisions for law enforcement and intelligence authorities. Besides proposing to change the surveillance act’s purpose standard, Berman, of the Center for Democracy and Technology, says, “They’re also opening up grand jury information sharing across both sides, but not just for terrorism purposes. That, to me, is a very broad hole in the grand jury system.” He and others believe information sharing can be accomplished without jeopardizing the rights of individuals who appear before grand juries, many of whom often are never charged by a grand jury. One little-discussed proposal restores the president’s power to confiscate the property of any foreign country, person or organization involved in hostilities or attacks on the United States. “If you read that literally, what it permits the president to do is to issue a classified order saying, ‘Seize and sell the property of John Doe.’ When it comes time for John Doe to attack that taking, he can’t get at the justification memo because it’s secret. How is he going to disprove he was engaged in the attack? That really troubles me,” says Venable’s Bass. THE ‘THE’ But ultimately, it comes down to “the” and “a” for civil liberties groups and others. Justice Department officials contend the change would eliminate the need to evaluate continually the intelligence or criminal purposes of surveillance. They also argue the change would enhance information sharing between law enforcement and intelligence authorities, critical to their anti-terrorism efforts. Bass calls the proposed change “a good deal,” but suggests current law doesn’t restrict the executive branch as much as the proposal’s advocates say it does. “I have no reason to believe that the primary purpose issue has been a barrier to obtaining any FISA tap,” he says. “Current law requires that executive branch authorities certify the purpose is for intelligence gathering. Courts have given extreme deference to executive branch determinations. So unless the internal executive branch policy has moved dramatically in the past 20 years, sole purpose has never been the test. A purpose was the test. We never had a problem with it.” According to the Center for Democracy and Technology, the special court, which approved more than 1,000 surveillance requests last year, has denied only one request in 22 years. The pragmatic problem with the law’s current language, adds Bass, can be seen with the Sept. 11 attacks. “Is that a criminal investigation or a foreign intelligence matter?” he asks. “It’s both. Which is the primary purpose? Who can tell? Does it matter whether the information is going to the ‘Sit’ room for development of target plans for a military purpose or to the FBI for prosecution? “Hamstringing the process with the requirement that in theory somebody is supposed to sit down and look at the justification and say, ‘This is 51 percent or 49 percent,’ is just farcical,” he says. Bass says it’s a legitimate question whether raising this issue in the anti-terrorism package was necessary or, in the long run, wise on the part of the administration. “Having injected it, it is now necessary to resolve it,” he adds. But some intelligence experts suggest that as the line between intelligence and criminal evidence gathering has become increasingly blurred in recent years, the surveillance court may be feeling increasingly uncomfortable using the lenient standard for approving surveillance applications when the Fourth Amendment standard may be required. The surveillance court may well have signaled its discomfort to the administration. Parker, the former CIA and NSA general counsel, disagrees with Bass that the distinction between intelligence information gathering and criminal evidence gathering has not been honored in the executive branch. “When I was there, they were very, very careful,” she recalls. “Those general counsel offices do say no.” The Sept. 11 attacks, she says, do make a compelling argument that greater use of the surveillance law by the authorities shouldn’t be tied up in legal knots. “But there is a countervailing concern,” she adds, explaining, “If we start taking something like FISA and convert it into authority much like Title III — the wiretapping statute — bringing intelligence under the constitutional law enforcement tent, the response will be to say, ‘Well, as a constitutional matter, foreign intelligence surveillance is simply another brand of gathering information for law enforcement.’ And that will mean a much more invasive and difficult set of requirements imposed on intelligence gathering.” Many in the intelligence community, she says, would think that may not be wise.

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