Ashcroft's New Ally

Senator Schumer Pushes to Make Covert Surveillance Easier

Indeed, a February report by senators Patrick Leahy, Charles Grassley, and Arlen Specter of the Judiciary Committee formed these conclusions about the FBI's use of FISA, including in the Moussaoui case: "Key FBI agents and officials were inadequately trained in important aspects of both FISA and basic criminal law. [The] FBI did not properly analyze or disseminate intelligence in its possession. . . . [A] deep-rooted culture of ignoring problems and discouraged internal dissent causes the FBI to constantly repeat its past mistakes." Moreover, Rowley's detailed complaints did not focus on the FISA feature Schumer disparages but rather on official incompetence and disputes that amounted to a high-stakes version of office politics.

The three senators cautioned in the report, "From a civil liberties perspective, the high-profile investigations and cases in which the FISA process appears to have broken down is too easily blamed on the state of the law rather than on inadequacies in the training of those responsible for implementing the law. . . . '[Q]uick legislative fixes' are attractive on the surface, but only operate as an excuse to avoid correcting more fundamental problems."

Yet, Schumer pointed out, the entire Senate Judiciary Committee approved his bill, although Leahy inserted a provision to sunset, or phase out, the FISA amendment with parts of the Patriot Act in 2005. (Republican senator Orrin Hatch wants to attach an amendment that would repeal the sunset provisions in the Patriot Act. But with growing bipartisan concern over how Patriot powers—easier wiretapping, physical and electronic surveillance, and access to financial and computer records—have been used, the amendment is considered far from certain.)

Civil liberties advocates explain the political unanimity by pointing at Schumer's bipartisan popularity and at the measure's focus on noncitizens. " 'We're not targeting Americans'—that is always the opening gambit," said Georgetown law professor David Cole, leading constitutional expert and author of Terrorism and the Constitution. He said that the Kyl-Schumer FISA amendment would likely encourage the substitution of secret, incontestable warrants for regular criminal warrants in federal probes. "That will lead to the further erosion of Fourth Amendment protections," he said.

If Schumer's initiative seems to resemble an Ashcroft endeavor, that's because the Justice Department has been clamoring for just such a redefinition of "foreign power" for over a year. Indeed, agency spokesperson Mark Corallo said last week that the department welcomes the Kyl-Schumer measure. No one knows to what extent information obtained under FISA has been used in criminal prosecutions over the years, but Ashcroft has been open about his intention to seek many more FISA warrants than ever before.

Constitutional defenders have accused Ashcroft of invoking terrorism fears to hack away unnecessarily at people's rights, from the legal bottom—noncitizens—up. However good his intentions, Democrat Schumer of immigrant-heavy Brooklyn may be handing him another ax. The weakening of individual rights always begins with foreigners, Cole said, "but historically, at the close, citizens get treated the same way."

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