The recent congressional expansion of surveillance powers, aimed ostensibly at terrorists abroad, has Jewish groups at home worried that their dealings with Israel could invite U.S. government scrutiny.
The amended Foreign Intelligence Surveillance Act, rushed through Congress and signed into law by President Bush on Aug. 5, was aimed at updating the original 1978 law enacted in the wake of revelations that Nixon-era intelligence agencies spied on Americans.
A close reading of the amended law suggests that any call to a foreigner could be fair game and U.S. law enforcement could take almost any measure at its disposal to investigate, without judicial warrant, the American party to the conversation.
“We are definitely looking at it with a critical eye,” said Hadar Susskind, the Washington director of the Jewish Council for Public Affairs, the umbrella body coordinating public policy positions among national organizations and local communities. “We will look at whether it is carte blanche, or does it balance the need for security with the equally real need for civil liberties?”
Spokesmen for other Jewish groups, speaking off the record, said they also were examining the amended version and encouraging Democrats who say they hope to reform the measure when it comes up for reauthorization in six months.
The expansion of government powers comes as some Jewish groups already are upset at the FBIâ€™s surveillance of AIPAC and the ongoing prosecution of two former employees of the pro-Israel lobby.
The chief of staff for Rep. Alcee Hastings (D-Fla.), a member of the U.S. House of Representatives Intelligence Committee who is close to Jewish groups, said the scrutiny of the law’s new version was welcome.
“Hopefully Jewish organizations, just like the American people, are beginning to realize the dangerously far-reaching provisions in this new law,” David Goldenberg, the chief of staff for Hastings, told JTA.
The White House argument for amending the law was that the original act did not take into account modern technology.
With its requirement of a warrant for eavesdropping on any U.S.-based phone call, the law became burdensome in an age when the bulk of the world’s calls are routed through U.S. servers. A call between a terrorist in Afghanistan and his funder in Venezuela, for instance, at some point might run through U.S. wires. Under the old act, tapping it required a warrant. The government tracks thousands of such calls.
The Democrat-controlled Congress, not wanting to appear soft on terrorism, rushed through the rewritten measure, but sought to write in assurances that the Bush administration would not use it to spy on Americans.
The trick was allowing warrantless “sweeps” — scans of communications technology that track key words and numbers — while banning wiretaps on Americans.
Under the revised law, authorities would not need a warrant to track certain word patterns in e-mails or phone numbers of groups deemed hostile to U.S. interests. Once authorities have the information, they can take whatever measures allowed under the law to investigate further.
A warrant would not be needed, for instance, to search a phone company’s records for an overseas phone number used by a known terrorist. If the number was found, law enforcement agencies could then seek court approval under the new surveillance act to tap the terrorist’s American interlocutors.
But the passage in the new version is so poorly written that it could also be read as authorizing nearly any type of warrantless search except phone taps, including searches of business records and offices.
It authorizes “acquisition of foreign intelligence information” by the attorney general and the director of national intelligence as long as “the acquisition does not constitute electronic surveillance” of Americans and “the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications.”
Critics say the broad definition of “communications service provider” as any “other person” who “has access to communications” could conceivably allow the FBI to search without a warrant any office dealing with any overseas group or individual the U.S. government deems hostile to American interests.
Additionally, some Democrats now worry about the vagueness of allowing the warrantless “acquisition of foreign intelligence information,” especially because the bill starts by declaring that its provisions are “notwithstanding any other law.”
Democrats have raised the issue with intelligence authorities, who reportedly have reassured them that they do not read the new law as allowing warrantless searches of offices.
Still, it is clear that Jewish groups are concerned over the sweep of the new law. On the eve of the measureâ€™s Aug. 3 passage, the Anti-Defamation League “called on Congress to adopt legislation that is carefully crafted to address what have been reported to be critical gaps in the intelligence community’s ability to provide warning of threats to our basic safety and security.”
While ostensibly supporting the legislation, it is significant that the ADL, in the first sentence of the release, called for the legislation to be “carefully crafted.”
Marc Stern, the legal counsel for the American Jewish Congress, said the legislation might be troubling, but added that Jewish groups should be careful of overreaching.
“I hesitate to use the phrase ‘Jewish paranoia,â€™ but at the moment we are clearly not the major targets of this power,” he said. “That’s not really what this debate is about, and there’s no reason to think that’s what anyone is thinking.”
Stern was confident the kinks would be worked out of the legislation when it is reauthorized six months after its passage.
“The thing sunsets in five months, so they’ll be more careful next time,” he said.