Lawmakers seek to fix 'terrorist lottery loophole'

By Kimberly Dozier

Associated Press

Published: Thursday, Sept. 26 2013 12:00 a.m. MDT

FILE - This June 6, 2013, file photo shows a sign outside the National Security Administration campus in Fort Meade, Md.

Patrick Semansky, File, Associated Press

Enlarge photo»

WASHINGTON — Lawmakers who oversee U.S. intelligence agencies are working to expand the government's spying powers to allow it to continue electronically monitoring terror suspects who travel to the U.S. if they are already under surveillance overseas by the National Security Agency.

The proposal is intended to close what lawmakers describe as a brief surveillance gap that occasionally can occur because of varying legal standards between the NSA's operations, directed principally overseas, and the FBI's traditional role tracking suspects on U.S. soil. It would require changes, they said, in the Foreign Intelligence Surveillance Act.

The effort comes at an awkward time for the NSA, which has been the focus of public unease over the breadth of its spying powers as revealed by former systems analyst Edward Snowden. Court-ordered disclosures of past U.S. court rulings have also criticized the NSA for failing to comply with its own rules for collecting U.S. emails and phone records.

On Wednesday, four senators proposed a bill that would prohibit the NSA's bulk collection of every Americans' daily phone records and open up some of the actions of the FISA court, the secret federal court that reviews government surveillance requests. The government could still obtain records of anyone suspected of terrorism or espionage and of any individual in contact with a suspected terrorist or spy.

The chairwoman of the Senate Intelligence Committee, Sen. Dianne Feinstein, D-Calif., told The Associated Press that her committee is drafting a bill that would amend the law's Section 702 provision, which authorizes targeting non-Americans outside the U.S., to allow uninterrupted spying on a suspect for "a limited period of time after the NSA learns the target has traveled to the United States, so the government may obtain a court order based on probable cause."

"Logically, someone under NSA surveillance, such as a terrorist, may present more interest to the government if they are inside the United States," but the surveillance can be temporarily stopped while the NSA or FBI builds its case to permit uninterrupted spying, Feinstein said.

A congressional aide said the proposed legislation would not specify whether the NSA would be the agency that continues its surveillance or the FBI would be the agency that picks up the target. The aide was not authorized to be identified publicly and spoke on condition of anonymity.

Proposed changes to FISA are the subject of a Senate Intelligence Committee hearing scheduled Thursday. The nation's top intelligence officials, Director of National Intelligence James Clapper and Army Gen. Keith Alexander, the director of the NSA, were slated to testify.

The proposal seeking to close the surveillance gap has bipartisan support of the leaders of both House and Senate Intelligence committees.

"I call it the terrorist lottery loophole," said Rep. Mike Rogers, D-Mich., the chairman of the House Intelligence Committee. "If you can find your way from a foreign country where we have reasonable suspicion that you are ... a terrorist ... and get to the United States, under a current rule, they need to turn it off and do a complicated handoff" to the FBI.

"Bottom line is, there is a gap," said the ranking Democrat on the committee, Rep. C.A. Dutch Ruppersberger, D-Md.

"You have to get the evidence. The judge has to schedule a hearing and rule," Ruppersberger said, drawing on his own time as an FBI prosecutor building such wiretap cases. "If in that gap period, and there's an attack that kills Americans ... shame on us all."

Alexander has testified that there is no evidence of intentional wrongdoing in any of the NSA spying programs. Intelligence officials blame the thousands of errors the agency itself reported to the FISA court on a system so complex that, they have said, no single person at the NSA understood it. A compliance officer now tracks every keystroke the agency's analysts make.

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