[JURIST] CIA Director Michael Hayden on Wednesday spoke against requiring the US government to show probable cause to obtain warrants to wiretap domestic conversations thought to involve al-Qaeda affiliates during a Senate Judiciary Committee hearing [committee materials] on adapting the Foreign Intelligence Surveillance Act (FISA) [text] to the threat of terrorism. Hayden argued that while FISA was appropriate for granting court orders to spy on the threats of the 1970s, which primarily included stable foreign regimes such as the USSR, it is ill-suited to dealing with today's terrorists, who are not defined by national borders and state affiliations. Hayden spoke favorably of Committee Chairman Arlen Specter's controversial compromise bill [JURIST report], now before the committee, that would allow the Foreign Intelligence Surveillance Court (FISC) to oversee the NSA's domestic surveillance program [JURIST news archive], require the attorney general to provide the FISC information on the NSA program, and expand the period where emergency wiretaps can be secured from the FISC from three to seven days.

Hayden noted that four factors now used by the Foreign Intelligence Surveillance Court [FJC backgrounder] are who are and where are the target of the surveillance, and how and where the communication is intercepted. Specter's proposal [PDF text], according to Hayden, would properly adjust the US response to terrorism by allowing the government more time to figure out who and where the surveillance targets are, by expanding the grace period from three to seven days, and that "technology neutral" provisions of the new bill would remove hurdles to obtaining cell phone conversations not contemplated by FISA's original drafters. Hayden further said that because the US serves as a routing station for international communications, "we are playing with a tremendous home field advantage and we need to exploit this edge" to permit wiretaps of phone calls through the US.

The Specter proposal met mixed reaction [JURIST report] during a Senate Intelligence Committee hearing last week, and has been slammed [JURIST report] by civil rights and privacy advocates. Reuters has more.

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