Experts Clash on Changes to Wiretapping Law

Legal experts testifying before Congress say the laws governing electronic surveillance needs updating to address current threats. Although the witnesses agree the laws need changing, they remain deeply divided on how to do it.

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The house intelligence committee heard from a panel of legal experts yesterday, and they were unanimous: FISA needs to be changed. That's the Foreign Intelligence Surveillance Act, the law that normally governs warrants in terrorism and spying cases. FISA's been at the center of the controversy over the Bush administration's program for wiretapping without warrants, but the hearing exposed deep differences on just how FISA should be fixed. Here is NPR's Mary Louise Kelly.

MARY LOUISE KELLY, reporting:

The first witness up was federal appeals court judge Richard Posner. He argued FISA is hopeless when it comes to hunting out terrorist suspects.

Mr. RICHARD POSNER (Federal Appeals Court Judge): I do believe FISA's obsolete as a weapon for dealing with international terrorism, and the reason for that is precisely that it's tied to the idea of warrants.

KELLY: Warrants are fine, judge Posner says, if you already know who you're looking for.

Mr. POSNER: But the real need is to find out who the terrorists are.

KELLY: And Posner says to get a FISA warrant, you have to show probably cause -that is, grounds for believing the person you want to spy on is an enemy of the United States. Posner argues FISA should be amended to allow wiretapping without a warrant. A second witness - Kim Taipale of the Center for Advanced Studies in Science and Technology Policy - agreed that warrants are obsolete. He also suggested doing away with the probable cause standard. But here, another witness piped up.

Mr. MICHAEL GRECCO (President, American Bar Association): The problem is that if we do both of those things, then what we've really done is to do away with the Fourth Amendment.

KELLY: Michael Grecco, president of the American Bar Association.

Mr. GRECCO: …because the strength of the Fourth Amendment is that it requires a particularized suspicion that someone is a terrorist or is cavorting with terrorists.

KELLY: But judge Posner persisted - the court warrant system, he said, is outdated.

Mr. POSNER: Suppose a terrorist is caught abroad in Lebanon or Yemen or what have you, and he has a list of phone numbers which includes U.S. phone numbers. Now what do we do then? Surely, you'd want to listen to a conversation, even if you do not have probable cause to believe that either party to the conversation is a terrorist.

KELLY: And Posner argues FISA wouldn't permit eavesdropping on such a call. The panel's fourth expert - James Dempsey of the Center for Democracy in Technology - sat shaking his head in disbelief.

Mr. JAMES DEMPSEY (Center for Democracy in Technology): I can't believe judge Posner would say that you get a list of phone numbers and you have to stare at it blankly. The FISA currently allows you to go out and specifically find out who those phone numbers are registered to.

KELLY: Dempsey added, you can then put a live wire tap on those phones to figure out who's being called. So the experts differed on what changes to the law may be needed. And lawmakers on the intelligence committee are also divided on the best path forward. Jane Harmon, the ranking Democrat, has introduced one measure to empower FISA. This week, Republican Heather Wilson proposed different legislation that would strengthen congressional oversight of eavesdropping activities. One thing is certain - more hearings. Another session on FISA is slated for next week. Mary Louise Kelly, NPR News, Washington.

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