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FISA terrorism changes debated at House Intelligence hearing

[JURIST] During an uncommon open session [PDF witness list] of the US House Intelligence Committee on Wednesday, several legal heavyweights debated whether the Foreign Intelligence Surveillance Act (FISA) [text] should be revamped to meet the challenges presented by terrorism. Under the current procedure authorized by FISA, the US Justice Department (DOJ) must seek a warrant from the court established by FISA, the Foreign Intelligence Surveillance Court (FISC) [FJC backgrounder], before using a wiretap. Judge Richard Posner [academic website] of the US Seventh Circuit Court of Appeals suggested that while the warrant process works well when a crime has already been committed, the burden of proof required to secure a warrant is often insurmountable when the goal of intelligence-gathering is merely to identify potential terrorists. American Bar Association (ABA) President Michael Greco [ABA profile] warned the panel that easing the burdens of proof required to conduct surveillance would undermine the protections of the Fourth Amendment [text].

The committee's ranking minority member, Rep. Jane Harman (D-CA), introduced a bill [HR 5371 summary; Harman statement] in May that would reinforce the principle that FISA is the proper means "by which domestic electronic surveillance may be conducted." That bill has the support of 60 Democratic co-sponsors. Several Committee Republicans on Tuesday introduced a competing bill [press release] (HR 5825, text not yet available) to update FISA. That legislation would replace current language with "technology-neutral" terms, shift FISA's focus from how surveillance is to be accomplished to whether probable cause exists to conduct a search at all, and provides the president with the ability to circumvent FISA altogether in the event of a terrorist attack. Last week, Sen. Arlen Specter (R-PA) announced that President Bush had agreed to allow FISC oversight of the NSA domestic surveillance program [JURIST report]. CNET News has more.

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