Ashcroft's New Ally

Senator Schumer Pushes to Make Covert Surveillance Easier

He calls it "logical." If federal agents hesitate to investigate terrorist suspects because they are daunted by a legal hurdle, then remove that hurdle. At least if the suspects are foreigners.

He knows federal agencies have resisted accounting for their use of vast new investigative powers under the Patriot Act, even though some 18,000 terrorism-related subpoenas and search warrants have been issued since September 11, 2001. He knows these investigations are sometimes shielded by court-approved secrecy, keeping the public and Congress from ever knowing if the probing was proper. But he believes agents should get more secret spying freedom anyway, and he casts his belief in terms that would be politically unpopular to contradict: Just imagine what fresh tragedy could follow a thwarted probe.

He is not President George Bush or Attorney General John Ashcroft, but U.S. Senator Charles Schumer, Democrat from New York. To the consternation of the American Civil Liberties Union, the Center for Constitutional Rights, and Human Rights Watch, among others, the senator is spearheading a bill that would enable federal agents to more easily monitor individuals in the U.S. using powerful foreign intelligence surveillance warrants. His co-sponsorship of the measure, with Republican Jon Kyl of Arizona, has helped assure bipartisan popularity to the extent that, as Schumer told the Voice last week, "there is virtually no opposition to this in Congress."

The senator wants to give federal investigators wider latitude under the Foreign Intelligence Surveillance Act (FISA), which allows the most intrusive surveillance of suspected foreign spies and terrorists, and of individuals who may not be provably suspect themselves but can be linked to a suspect "foreign power" that currently may be as loosely defined as one other person. Schumer wants to redefine "foreign power" to mean the desired surveillance target alone, warning that someone could plot terrorism with no connection to anyone else. This change would obviate the need to make a link, removing one step from investigators' efforts to justify a FISA probe.

In an indication of how seriously this change could jeopardize individual rights, the Kyl-Schumer bill would not apply to U.S. citizens or immigrants who are legal residents. Schumer conceded that there could be U.S. citizens who are single-handedly plotting terrorism and whom investigators might not nab without a FISA-like surveillance tool. But that risk cannot be helped, he said last week, as "every citizen has traditionally had greater rights than noncitizens."

The measure would ultimately "redefine 'foreign power' as a foreign person," said ACLU legislative counsel Timothy Edgar, and potentially subject noncitizens to invasive surveillance based merely on their nationality. He said that not even the Justice Department has been able to show how this redefinition would actually improve national security. The more certain effect, he said, is that the weakening of standards for some will contribute to the general deterioration of individual rights for all that has occurred since 2001.

Under FISA, agents can obtain warrants that enable wiretapping of private communications and covert searches of homes without worrying about having to defend their motives down the line. Even if someone is innocent and wrongly charged on FISA-derived intelligence, to protect sensitive national security information that person is barred from viewing or questioning the warrant. The right to challenge the validity of search warrants is ordinarily a basic due-process protection.

FISA warrants are so potent that safeguards were created to prevent government abuse. Indeed, the act, passed in 1978, was meant to distinguish legitimate national-security surveillance from the kind of abusive spying the FBI conducted against domestic dissidents like Martin Luther King Jr. One safeguard required agents to show that national security—not ordinary crime—was their probe's "primary" focus. But in November, a closed-door appeals court—which heard oral arguments only from the government and no critics—said the Patriot Act lowered the "primary" threshold to include investigations with merely "some" link to national security. (The lower FISA court had earlier refused to permit the lower standard, because the FBI had admitted to misrepresenting information in FISA cases 75 times.)

With this watering down, civil liberties defenders have argued that the requirement to show some link with a "foreign power" became especially important in preventing illegitimate uses of FISA powers.

But the civil libertarian's safeguard is Schumer's "needless and, frankly, dangerous barrier to the FBI's ability to monitor terrorists on American soil." He said, "What if there's a lone wolf, planning to explode a nuclear bomb in this country?"

He said he was inspired by the congressional testimony of FBI agent and whistleblower Coleen Rowley. She complained that the feds did not energetically investigate French citizen Zacarias Moussaoui before the September 11 terrorist attacks, which he is suspected of having aided. The Justice Department later told Congress that FBI agents and lawyers had been confused by the "foreign power" link requirement and therefore hesitated to obtain a FISA warrant to examine Moussaoui intensively. They wrongly believed they had to prove Moussaoui was connected specifically to Al Qaeda—not to just any foreign terrorist entity—and to meet a standard of proof higher than probable cause.

By touting his bill as "the Moussaoui fix," Schumer falls into the camp that believes improved security can be achieved by legislating more government powers. Others, including the first President George Bush's CIA counterterrorism chief, have told the Voice that government agents had all the legal tools they needed on September 10, 2001, but that better training and swifter bureaucracy are needed.

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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