WASHINGTON (AP) — 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 and international criticism 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, a Democrat, told The Associated Press that her committee is drafting a bill that would amend a provision of the Foreign Intelligence Surveillance Act, which authorizes targeting non-Americans outside the U.S. The change would 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."
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 NSA's mandate forbids it from spying on anyone inside the U.S., except in rare instances when the agency is allowed to spy on foreigners after making a case to a FISA court judge.
In most cases, it falls to the FBI to track such roaming suspects — and when the NSA calls to report a suspect who has entered U.S. territory, it has already stopped surveillance, and the clock has already started on the suspect's opportunity to disappear inside the country.
The NSA also has to throw out whatever it has collected — emails, phone calls or more — from the point it determines the suspect entered U.S. territory, according to one U.S. official, who spoke on condition of anonymity because the official was not authorized to speak publicly.
The FBI then has to decide quickly if the person is dangerous enough to start following electronically. If the suspect was, say, al-Qaida's top bomb maker, the agents would scramble to build a case showing "probable cause" to follow him. The FBI can directly contact the attorney general to ask for emergency authority to follow the suspect for seven days. The agents then have to present the government's case to the FISA court, for retroactive approval of the spying.
If the court rejects the case, the FBI has to throw out anything it's collected in that emergency period. The court has rejected surveillance requests in 11 out of more than 33,000 times.
Under Feinstein's proposal, FBI agents would not have to scramble to request permission to turn on surveillance. It would continue while the FBI built a case to present to the court.
The NSA, FBI and Justice Department would not comment on the proposals.
The proposal seeking to close the surveillance gap has the support of both the Republican leader of House Intelligence Committee and his Democratic counterpart in the Senate.
"I call it the terrorist lottery loophole," said Rep. Mike Rogers, the Republican chairman of the House committee.
Associated Press writer Donna Cassata contributed to this report.
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