Senate May Change Surveillance Rules

WASHINGTON — The FBI could face fewer legal obstacles to spying on foreign terrorist suspects in the United States under two Senate proposals.

Lawmakers say they are trying to eliminate barriers that may have prevented the FBI from aggressively investigating Zacarias Moussaoui after he was arrested a month before the Sept. 11 hijackings. Moussaoui has since been charged with conspiring in the attacks.

Civil libertarians and legal analysts question whether the proposals are constitutional.

Under a bill submitted last week by Sen. Mike DeWine, R-Ohio, authorities wouldn't have to offer as much proof that a foreigner was linked to terrorism in order to place wiretaps and conduct secret searches.

"It would be a major change," said Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington.

At issue is the Foreign Intelligence Surveillance Act, which allows U.S. officials to place a person under surveillance if there is probable cause he is a "foreign power or agent of a foreign power."

The surveillance requests, generally from the FBI, are considered by a secret court established by Congress in 1978. The court meets monthly in the Justice Department basement.

FISA has already been revised by Congress since the Sept. 11 attacks. The anti-terror laws signed by President Bush in October make it easier for evidence obtained through FISA warrants to be used in prosecutions.

FISA has received more attention in recent weeks because of revelations that FBI agents in Minnesota had been denied permission from headquarters to search Moussaoui's laptop computer after he was arrested on an immigration charge. Headquarters had determined there was insufficient evidence to show that Moussaoui was an agent of a foreign government or organization.

FBI Director Robert Mueller told lawmakers this month that the bureau is "looking at ways to tweak" FISA to address the problems in the Moussaoui case.

Sens. Jon Kyl, R-Ariz., and Charles Schumer, D-N.Y., have proposed eliminating the requirement that a foreign terrorism suspect be linked to a foreign power. The standard would remain place for U.S. citizens and permanent residents.

That change could be challenged in courts, said Stewart Baker, who was general counsel for the National Security Agency in the early 1990s. He said FISA was conceived after a Supreme Court ruling that suggested intelligence gathering aimed at foreign powers or organizations shouldn't be subjected to the same kind of constraints placed on regular domestic surveillance.

"There is a risk if you take group membership out of it, that it's a bridge too far for the courts."

Both bills have been referred to the Senate Intelligence Committee.

Under DeWine's proposal, authorities would still have to prove a link to a foreign power. But instead of showing "probable cause" that a link exists, it would only have to show a "reasonable suspicion" in the case of noncitizens.

Reasonable suspicion is a lower legal standard. For example, police can use reasonable suspicion to stop and frisk someone on the street, but not to arrest them.

DeWine, a member of the House-Senate inquiry investigating the Sept. 11 attacks, said he doesn't know if his proposal would have made a difference in the Moussaoui case. "But from what you read in the paper, it appears there was a dispute about probable cause or not and this lowers the standard."

He said it doesn't make sense that noncitizens who "are part of an international terrorist organization, why in the world we shouldn't be able to get a warrant to check that out."

Nojeim said the lower standard would make it too easy for the FBI "to break into a non-citizen's home, download everything in his computer and rifle through everything in his bedroom."

Stephen Saltzburg, a George Washington University law professor, questioned whether courts would view DeWine's proposal as violating Fourth Amendment protections against unreasonable searches.

"Any departure from probable cause when dealing with electronic surveillance warrants will be dealt with extreme skepticism by the judiciary," he said.

In addition to the proposals in Congress, the FBI has changed its internal rules for FISA warrants so that Mueller now personally reviews any requests.

The rules were changed after Mueller received a scathing letter from Coleen M. Rowley, the top FBI lawyer in its Minneapolis office, complaining of headquarters impeding the Moussaoui investigation.