Senators charged with overseeing the Department of Justice lambasted the agency last week for overstepping expanded wiretap powers that were granted in the wake of the Sept. 11, 2001, terrorist attacks. The harsh criticism from Congress came as the Bush administration prepared for this weeks launch of an ambitious strategy for securing cyberspace—another response to terrorism and one that is also raising concerns.
The Senate Judiciary Committee met last week to review the Justice Departments use of expanded electronic surveillance powers enacted in the USA Patriot Act, passed last October. Several committee members said the arcane wiretap provisions were approved in a climate of fear before lawmakers understood the ramifications.
"In our haste to develop legislation to help America, we went too far," said Sen. Russ Feingold, D-Wis., charging that the Justice Department abused the language of the act. "We must carefully examine what we have done." Feingold was the only senator to vote against the legislation.
Expanded wiretap powers affect not only the balance between individual rights and government authority but also the potential burden imposed on network operators. When the volume of surveillance requests increases, so does the volume of work required of service providers, telecommunications carriers and private network operators.
The expanded powers pertain to the Foreign Intelligence Surveillance Act, or FISA, which exempts foreign intelligence gathering from the probable- cause requirements and privacy protections that govern wiretaps conducted for criminal prosecutions. Previously, the FBI and other agencies could use the more lenient FISA standard for investigations when the purpose was foreign intelligence gathering, but the USA Patriot Act gave the government greater latitude to use the standard.
In May, the Foreign Intelligence Surveillance Court of Review, created by Congress in 1978 to oversee foreign intelligence investigations, unanimously knocked down the Justice Departments interpretation (although the decision did not come to light until Aug. 20 in response to an inquiry from the Judiciary Committee) that the government could use the FISA standard when the sole purpose of an investigation was a criminal prosecution. The departments appeal of the court order is pending.
Calling the governments interpretation "ridiculous," Sen. Arlen Specter, R-Pa., said the FBI and Justice Department are subverting the purpose of the foreign intelligence surveillance laws.
Sen. Richard Durbin, D-Ill., noted that the FISA court determined that the government misled it dozens of times and that the FBI improperly shared intelligence with prosecutors. "We were asked to show faith in this government and invest it with new authorities," Durbin said. "As we reflect now, we know it was a faith born of fear."
David Kris, associate deputy attorney general, defended the governments position to the committee. "The act changed the why of FISA," but it did not change how foreign intelligence surveillance could be conducted, or when, where or on whom, Kris said.
Not all members of the committee were as harsh on the government. Sen. Mike DeWine, R-Ohio, said he is not convinced that the interpretation of the expanded wiretap powers is wrong. Nonetheless, DeWine said, the committee needs more information about the application of the law if it is to live up to its oversight responsibilities.
Democrats and Republicans alike deplored the extensive secrecy surrounding the interpretation and implementation of the surveillance laws. "Theres less sunlight on the FISA court than youd find in most photographers darkrooms," said Sen. Charles Schumer, D-N.Y.