Lawmakers wary of Justice's view on anti-terrorism law

Democrats and Republicans were skeptical of a top Justice Department official who argued Tuesday that last year's anti-terrorism law permits federal prosecutors to direct foreign surveillance operations.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. Arlen Specter, R-Pa., said they are not satisfied with Justice's answers, and Leahy said the committee may "have to issue subpoenas to get answers to legitimate questions" from Attorney General John Ashcroft.

"I hope it doesn't come to that, but if it does, it does," said Leahy, who noted that House Judiciary Committee Chairman James Sensenbrenner, R-Wis., has issued a similar warning because of the department's unwillingness to answer Congress' questions.

Testifying at an oversight hearing on the Foreign Intelligence Surveillance Act, Associate Deputy Attorney General David Kris said Congress' changes to FISA via the anti-terrorism law means that Justice officials can freely communicate information gathered from wiretaps to intelligence officials.

The Foreign Intelligence Surveillance Court, a court authorized to consider wiretapping requests under FISA, rebuffed that position in a May 17 opinion. Leahy released that unclassified decision, the first public ruling of the secret court, after he received it from the court last month.

Kris said Justice made the same arguments in a closed session before the U.S. Foreign Intelligence Surveillance Court of Review, the first-ever meeting of that court, which is reviewing the May 17 decision. Others testifying on the Senate panel, including Kenneth Bass, former Justice counsel for intelligence policy, and Morton Halperin, director of the Open Society Institute's Washington office, strongly criticized the government's insistence on making the appeal in secret.

Kris said a loosening of the "wall" between foreign intelligence agents and criminal prosecutors is essential to help determine which is the best means to thwart a given terrorist operation. He compared the need for greater cooperation-which he said is authorized by last year's anti-terrorism legislation-to the choices a hospital might make.

"When someone has cancer, sometimes the best solution is surgery to cut the tumor out," he said. "Other times, it's chemotherapy. But who would go to a hospital where the surgeons are not permitted to sit down and talk with the oncologists?"

Leahy and Specter were not impressed with that example. "The FBI and the Department of Justice are not being as aggressive as they should be" in seeking warrants under existing standards, Specter said. "At the same time, they are subverting the purpose of FISA by attempting to make it much, much broader than it was intended."

He added, "It is important to put them on notice that we are not going to let this matter drop."

Democratic Sens. Dianne Feinstein of California, Russ Feingold of Wisconsin and Richard Durbin of Illinois, and Republican Charles Grassley of Iowa also criticized Justice's actions. Sens. Charles Schumer, D-N.Y., and Mike DeWine, R-Ohio, both of whom have suggested further easing of FISA standards, raised points on both sides of the debate.