A Frank Discussion On FISA
The El Paso Times caught National Intelligence Director Mike McConnell in an unusually talkative mood. They posted the transcript of what they call a "debate" with one of the Times' reporters about the effect the FISA debate in Congress had on the collection of foreign communications. McConnell makes it plain that the insistence on requiring warrants just because communications touched American switches not only took too much time, but it also tied up translators who had to testify to the communications in question:
Q: Can't you get the warrant after the fact?A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven't done that in wireless for years.
Q: So you end up with people tied up doing paperwork?
A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you've got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We're going backwards, we couldn't keep up. So the issue was ...
Q: How many calls? Thousands?
A: Don't want to go there. Just think, lots. Too many. Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. So we went through that and we argued it. Some wanted to limit us to terrorism. My argument was, wait a minute, why would I want to limit it to terrorism. It may be that terrorists are achieving weapons of mass destruction, the only way I would know that is if I'm doing foreign intelligence by who might be providing a weapon of mass destruction.
Q: And this is still all foreign to foreign communication?
A: All foreign to foreign.
It's a fascinating interview, and one that should be read in full. In the excerpt, McConnell notes that he wanted a return to status quo ante, not expanded powers and certainly not the destruction of American civil liberties. The new interpretation of the FISA legislation basically asserted that any communication that passed through a wire, however briefly, between points could not be considered wireless and required a warrant -- which requires the establishment of probable cause. Translators would then have to give testimony about how previous communications created the probable cause, taking them away from the actual surveillance work that they would otherwise do. Both the delay and the distraction would quickly create an escalating backlog -- and intel would get missed.
McConnell came under fire for supposedly backing out of a deal on a Democratic version of FISA. This accusation is probably what drove him to talk publicly about the FISA debate. He told the El Paso Times that the White House did not pressure him into rejecting the Democratic version; in fact, McConnell says that the White House relied on his opinion to set their position, not the other way around. He rejected the final Democratic version because the Democrats changed the language from their previous agreement, something the DNI's attorneys caught on the last round of negotiations. McConnell insisted that the previous version was the only one he would support, and that's what passed in the Senate -- not the "White House version", but a version from the previous round of negotiations with Congress.
Interestingly, McConnell talked numbers. Less than 100 "US persons" have their communications monitored, and all under warrant. The number of foreign persons outside the US monitored through the NSA is in the thousands -- which, as McConnell notes, is still pretty "surgical". Telephone numbers are, after are, fairly explicit points on which to focus. The NSA does not have millions of numbers monitored by vast armies of translators.
One point McConnell makes will cause plenty of controversy:
A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we're doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?
A. That's what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it's a democratic process and sunshine's a good thing. We need to have the debate. The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required. So there was no warrant required for a foreign target in a foreign land. And so we are trying to get back to what was the intention of '78. Now because of the claim, counterclaim, mistrust, suspicion, the only way you could make any progress was to have this debate in an open way.
In other words, irresponsible demagoguery created the need to have the debate in the open rather than have Congress and the White House tweak the FISA issue back to its original intent on foreign communications. Also, Congress' procrastination on dealing with the FISA issue when it was first brought to them in April forced the administration to press openly for action, raising its profile even further. This is really just common sense, the same dynamic that resulted in losing Osama bin Laden's satellite-phone traceability when people insisted on talking about it openly. The more we reveal our capabilities and strategy on the front page of the New York Times, the more our enemies will avoid detection and live longer to kill more of us.
Posted by Ed Morrissey on August 23, 2007 7:35 AM | Comments (29) | TrackBacks (0)
Comments (29)
Posted by dude1394 | August 23, 2007 9:06 AM
So congress poll numbers continue to shrink. The left thinks that congress's poll numbers are all a result of iraq, partly true. The other side is that the democrat party is perceived (rightly so imo) to put party much higher than country. At least their leadership does.
Posted by Dean Esmay | August 23, 2007 9:19 AM
While it's clear that the Democrats have acted irresponsibly here, it does seem to me that it's fair to ask if a more politically adroit White House would have been able to avoid getting them into such a lather in the first place. And by "them" I mean the Congressional Democrats. Not that disliking a President is reason to act foolishly, but a more professional politician of a President might have done a better job of mollifying the opposition rather than trying to build and sustain a "permanent majority."
Posted by Teresa | August 23, 2007 9:26 AM
Captain? Do you not see any problem with the government monitoring the calls of US citizens? Would you have felt this way if a Democrat was president? I seem to recall conservatives howling during the Clinton administration when they expanded FISA's powers and making dark rumblings about "secret courts". Frankly none of this would have come out in public if the administration was not bent on a power grab of unprecedented proportions and if they had worked within constitutional guidelines in the first place -- unless you consider John Ashcroft to be a big liberal weinie for deciding what they were doing was illegal.
Considering that most people believe the next president will be a Dem -- and, gasp!, might even be Hillary -- you might want to start rethinking about putting some limits on the power of the executive.
I also think it is interesting that conservatives think it is worth it to expend American lives to create Democracy in Iraq, but are unwilling to take the risk -- not certainty, risk -- of losing lives here to defend American democracy. Have all the libertarian streaks in conservatism died?
Posted by MrLynn | August 23, 2007 9:37 AM
Teresa apparently cannot read.
Quote:
"Q: And this is still all foreign to foreign communication?"
"A: All foreign to foreign"
We're talking about stopping saboteurs, spies, and terrorists from carrying out plots aimed at the United States.
What part of war does she not understand?
/Mr Lynn
Posted by Jim C | August 23, 2007 10:08 AM
Teresa is just bent on beating up on Bush. Facts don't matter when it comes to that sort of thing don't ya know...
Jim C
Posted by FedUp | August 23, 2007 10:20 AM
For my 2 cents, I don't care if my calls are monitored or not! I have nothing to hide, and I'd be extremely arrogant to suggest that anyone on this planet has an interest in my calls. For heaven's sakes! There aren't enough people to monitor calls that they should be focusing on, much less Joe, Average Citizen. I'd rather err on the side of caution - if it will prevent another 9/11, then HAVE AT IT!
ps... just a snark... monitor all Congress calls
Posted by davejoch | August 23, 2007 10:49 AM
I think there might have been some misunderstanding of McConnell's second block quote.
He says that "some Americans are going to die," and there I think he is talking about soldiers, because he them almost immediately mentions the wars in Afghanistan and Iraq. The "alternative means" he's talking about are most likely battle-field tactics and suicide-bomb-setup strategies, not attacks on American soil.
It seems very impractical -- if not impossible -- for people with substantial but not infinite resources to communicate abroad and then also to the US, but somehow to do this entirely without telephones or the internet. However, on a battlefield or in a smaller area, like Al Anbar or southern Afghanistan, it seems practical to find those means.
Furthermore, I think he's saying that the debate on surveillance of American citizens is NOT an issue of irresponsible demagoguery. He says that
"We used to do these things very differently, but for whatever reason, you know, it's a democratic process and sunshine's a good thing. We need to have the debate. The reason that the FISA law was passed in 1978 was ... we did not want to allow this community to conduct surveillance ... of Americans for foreign intelligence unless you had a warrant ... Now because of the claim, counterclaim, mistrust, suspicion, the only way you could make any progress was to have this debate in an open way."
He's making a very clear distinction between military operations abroad and intelligence operations at home. I think he's lamenting the catch-22; that most people are comfortable with the way foreign surveillance was conducted, but were nervous that there was an abuse of power going on. The only way to correct the latter was to compromise the former, and this, at its core, is a debate on how to ensure civil liberties and protect people. I think McConnell is saying that, especially when he explicitly says the less than 100 Americans being targeted have warrants.
Posted by Teresa | August 23, 2007 11:01 AM
Mr. Lynn -- I'd suggest that you check out this link:
http://www.nytimes.com/2007/08/06/washington/06nsa.html?ex=1188014400&en=7b068b2c0d26db8f&ei=5070
to see that the new law passed in August allows the NSA to tap the phones of American citizens making calls outside of the US if the NSA believes that the foriegner is a person of interest.
And, Fed Up, I agree that no one probably has any interest in your phone calls or mine, but do you trust that whoever is in the White House doesn't have an interest in say their political opponents phone calls? I would have thought the Nixon years would have given you some pause. FISA was in fact passed in the 1970's after it was discovered that the gov't was illegally monitoring civil rights organizations.
Posted by John | August 23, 2007 11:22 AM
Let me make this clear:
Yes, I think the government should listen on phone calls from the US to people outside the US that the government has identified as possible terrorists.
Does that make me a sheeple? Or someone who is too willing to give up essential liberties for temporary security (the Ben Franklin quote oft-trotted out by folks who previously would have gladly spit on him as a dead white guy)?
I don't care.
I trust GWB's government functionaries and HRC's future functionaries.
Now, if leftist university profs on a "thoughtcrime" witch-hunt got the ability to monitor communications, I would be worried.
Posted by LarryD | August 23, 2007 11:28 AM
Either Teresa is reading comprehension impaired, or else she's trying to execute a form of the smokescreen defense, in this case trying to change the topic to an issue that doesn't even exist.
If the latter (which seems more likely to me), then I suspect Teresa of trying to maintain a state of denial about current events.
Posted by Rose | August 23, 2007 11:30 AM
And here is another subject too eaten up with stupidity.
What Mike McConnell said is too blatantly obvious to have to be continually thrashed out on the pages of the NYT without some people getting a DESERVED TRIAL FOR TREASON for forcing such conversations out in the open jeopardizing our security.
Like the Plamegate case - we finally find out who did what and the guilty are not paying, are not tried, and the guilty's accomplices are promoting the same stupid lies, while those who had nothing to do with it are being raked endlessly over the coals because the truly assinine guilty don't like them.
I'm remembering one of the first and unsung accomplishments of the open records act - when about 250 spies were outed without warning, and then were all murdered within 24 hours - and nobody was ever prosecuted, for it, "because it was all perfectly legal".
YET!
What McConnell said is reasonable - and added to that, the fact that the spies for the government have a vested interest in America in innocent Americans who have no knowledge of such issues as concern spies, and they also have no interests in such concerns, should NOT be harrassed and spied unnecessarily upon, so they can continue to work hard and live happy and pay their taxes from which spies draw their working expenses and salaries, et al.
There are too many of us for them to have time to go after us for purely speculative and vicarious interests.
Such fears should be medically treated instead of fed.
But for cases like PLAMEGATE, in which all America sees the GUILTY DIDN'T PAY but CONTINUE TO SLANDER, we could reasonably do that.
So the problem we have is the YELLOW JOURNALISM and the ANTI-AMERICAN POLITICAL GAME - who both deserve to be charged with TREASON for their CALUMNIATING CHARGES AND INSINUATIONS, SLANDERS AND LIBEL.
I'd like to know why Armitage, Plame, Wilson, and Novak are NOT being charged with Treason and Conspiracy along with the NYT and other news services, and publishing houses which jumped on their bandwagons.
Posted by Teresa | August 23, 2007 12:20 PM
Larry D -- If you actually read the entire interview McConnell did, you would see that he also talks about wiretapps on American citizens. In fact, he wants to grant retroactively give legal immunity to private companies that cooperated with the govt in their data mining operations. (And his assertion that they would need immunity seems to be an admission that they knew they were breaking the law.)
When Hillary comes around in a few years and tells you, "I know it wasn't legal, but I thought it was in the country's best interests so I went ahead and did it," you'll be ready to start the impeachment process.
John -- I find your statement: "I trust GWB's government functionaries and HRC's future functionaries" amazing. Why not go live in Russia if you are comfortable with the government spying on you?
Posted by Rose | August 23, 2007 12:20 PM
This is simple and plain balderdash, because this open discussion based on anti-American terms - without accountablilty on the part of America's detracters - leaves a lot of really stupid wrong impressions in the minds of too many Americans, allowing too many self-serving and treasonous journalists and politicians able to promote too many wrong and anti-American policies in place which cost the lives of all kinds of American and non-Americans, both at home in America as well as in foreign lands and waters.
For instance, when the 250 spies were exposed and murdered, we've never heard who else associated with them may have been killed or otherwise injured and harmed, in any way suffered because of their deaths, whether vital information was suppressed from Intelligence, and someone needed to be rescued, might could have been rescued, policies towards dictators might have been changed and their local citizens spared mortal grief, or if those who rented them rooms or fed them in their restaurants might have been wiped out with them - these things we do not know.
I.E. - I live in Texas close to the border - the lies the "open discussion" crowds promote in the national intelligence service circles are the same as those which pervade the issues of Border Security, and Border Patrol support - and living where I do, I see the DIRECT IMPACT as most murders and other crimes committed in our area, over my entire lifetime of over 50 years, have centered largely on activities associated directly with ILLEGAL ALIENS, and most of those center on the ILLEGAL ALIENS and the COYOTES being the criminals in question.
All because of the LIES promoted by the same crowd that challenges our intelligence services' ability to perform THEIR duties - such as that "most illegal aliens just want a job and decent money so they can take care of their family."
In our area alone, that has cost the lives of several grandparents who were guilty of nothing but trying to feed illegal aliens they assumed were harmless.
One 86 yr old grandmother about half a mile from me would feed these young men because of the number of grandsons she had, hoping if they needed help, someone would be there for them.
One came back and raped her and tortured her to death, and then burned her house down around her ears.
Another young man brutally murdered a ranching couple, also elderly and grandparents, and their hired hand, when they let him stay and "get fed up" and make a little to go north with.
I haven't even mentioned the drug culture, and the illegal counterfeiting and forgery activities that match the coyote activities with drugs and human smuggling.
And then here in Texas, we have seen several serial murdering events go on for years and years, when some witchcraft cults on the border, or just across it, have targetted either women working across the border who travel back and forth daily, or college students on Spring Break, or other touristy profiles, etc.
Facts due to the politics of these "frank and open discussions" who aren't at all constrained by "OUR NEED TO KNOW" when THEY decide to REPRESS RELEVANT INFORMATION about such events as these, have PERPETRATED these events by NOT ALLOWING US TO KNOW FACTS THAT INTERFERE WITH THEIR POLITICAL AGENDAS.
If these facts were fully known, these individuals wouldn't be able to keep our borders wide open, these days. OR kowtowing to insanely stupid Mexico policies.
Our President wouldn't be stuck in the far distant PAST with WRONG IMPRESSIONS of today's illegal aliens, or the true threat to border regions, based on his personal experiences of 50 years ago, which are wrong, for today!
Posted by Teresa | August 23, 2007 12:20 PM
Larry D -- If you actually read the entire interview McConnell did, you would see that he also talks about wiretapps on American citizens. In fact, he wants to grant retroactively give legal immunity to private companies that cooperated with the govt in their data mining operations. (And his assertion that they would need immunity seems to be an admission that they knew they were breaking the law.)
When Hillary comes around in a few years and tells you, "I know it wasn't legal, but I thought it was in the country's best interests so I went ahead and did it," you'll be ready to start the impeachment process.
John -- I find your statement: "I trust GWB's government functionaries and HRC's future functionaries" amazing. Why not go live in Russia if you are comfortable with the government spying on you?
Posted by Teresa | August 23, 2007 12:24 PM
Sorry about the poor grammar in the above post. I got distracted by a phone call in the middle of writing it.
Posted by Teresa | August 23, 2007 12:29 PM
Sorry about the poor grammar in the above post. I got distracted by a phone call in the middle of writing it.
Posted by Rose | August 23, 2007 12:33 PM
Some folks insist on mixing up terms like "Government" and "Democrats".
If the Government WAS 100% Democrat - then we would be living in the USSR,Jr.
However, if the Democrats were charged with Treason when they commit Treason, instead of being treated as if they wer the same thing as ordinary American citizens who love the American Constitution, our government could be trusted to take care of our security.
Funny how these same DIMS insist we dismantle our government's ability to take care of our security, but they also dismantle our 2nd and 1st Amendment Rights - saying the GOVERNMENT can protect us better than we can protect ourselves.
If they can be trusted to be our sole militia, then they can be trusted with our intelligence services.
IF we civilan citizens cannot be trusted with weapons, we cannot be trusted with the VOTE.
The DIMS prove what they trust American citizens with - they make sure our CEMETARIES and ILLEGAL ALIENS AND FELONS vote, as they stuff the ballot boxes, and write bills to remove our 2nd amendment and 1st amendment rights, while enforcing "amendments" that were NEVER RATIFIED by American voters.
Posted by A-10 | August 23, 2007 12:51 PM
Teresa,
You're discounting the fact that the individuals doing the terrorist surveillance at the NSA are patriotic professionals. They are not political operatives. They are members of the US Armed Forces, with TS/SBI clearances, tracking the communications of known and suspected terrorists. Have a little more faith in the professionalism of those in uniform.
Now, that is not to ignore the fact that political operatives will not attempt to listen in on the conversations of their political enemies. But I seriously doubt that they would attempt to use the assets of the NSA to do their dirty work. This is not "Enemy of the State". They would use their own resources. Less of a trail.
Posted by FedUp | August 23, 2007 12:57 PM
Teresa,
To be honest, I don't trust anyone in our government any more - to me with very few exceptions, they are liars, cheats and crooks! But, if the government wants to go after anyone, there is always that great boondoggle the IRS that can access more sensitive information and what guarantee do we have that that informationb is not being abused?
Posted by A-10 | August 23, 2007 1:02 PM
Teresa,
You're discounting the fact that the individuals doing the terrorist surveillance at the NSA are patriotic professionals. They are not political operatives. They are members of the US Armed Forces, with TS/SBI clearances, tracking the communications of known and suspected terrorists. Have a little more faith in the professionalism of those in uniform.
Now, that is not to ignore the fact that political operatives will not attempt to listen in on the conversations of their political enemies. But I seriously doubt that they would attempt to use the assets of the NSA to do their dirty work. This is not "Enemy of the State". They would use their own resources. Less of a trail.
Posted by unclesmrgol | August 23, 2007 1:18 PM
Teresa,
Nowhere in the interview does McConnell talk about warrantless wiretaps against any person in this country. In fact, he specifically addresses a noncitizen category called a "US person" -- a term normally used by the government for a citizen of a foreign country who has a visa or green card and is allowed to work here.
Interestingly McConnell does not explicitly use but touches on the concept of the "foreign person", which is a government term used for either a US citizen or a foreigner who is working in the interest of a foreign country; such a person can either be within or without our territory.
With regard to AT&T and retroactivity, the links being monitored were foreign-to-foreign endpoint communications. The big point about FISA is that it's supposed to address communications in which both endpoints are outside our country, but in which the intermediate data (either analog or digital) passes through our country. Given the nature of the world telephone system and the Internet, there's a very strong probability of that occurring. McConnell makes it very clear that warrants are still needed and requested when either or both of the endpoints are in the US, whether that endpoint is a US Citizen, US person, or a foreign person residing in the USA.
A US Secretary of State, Henry Stimson decided that "Gentlemen do not read each other's mail." and in 1929 closed "the Black Chamber" (a predecessor to the CIA). It didn't take him long to figure out that he'd done something really stupid, and to work to rebuild the lost capability. That's where we are now.
Posted by Ray | August 23, 2007 4:37 PM
Teresa,
Your fears are unfounded. You think that this will allow the government to tap in domestic calls any time they want without a warrant and with anyone finding out? Think again. The New York Times article you quote states: "The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted."
This means that the FISA court will review the calls after the monitoring takes place. It's a review process that assures that the government is not abusing it's authority. Also, congressional committees will still be able to review this process any time they wish. Don't forget that there are committees in congress who's sole purpose is to monitor the government in situations like this to ensure that the government is not abusing it's authority.
Do you really think the government would be able to monitor calls that have nothing to do with foreign intelligence and that the members of the NSA, the FISA, or congress wouldn't say something to the press if they had proof that such monitoring was politically based? If such a situation occurred, there would be a stampede of "anonymous sources" to the nearest office of the NYT and the Washington Post, all screaming about how the White House is tapping the phone calls of political opponents. You'd be hearing all about it on CBS and CNN non-stop for weeks!
There's no need to loose sleep over the fear that the government is abusing it's authority and monitoring Americans because of their political ties. There's plenty of checks and balances to ensure your nightmare scenario never occurs.
Posted by unclesmrgol | August 23, 2007 6:28 PM
Note that the version of FISA just passed gave Bush far more powers than he requested; I can see why Bush signed the legislation, however. He requested just the ability to monitor foreign communications (having both endpoints on foreign soil) which travel through our country. and got the ability to monitor communications in which only one end terminates in a foreign country. He got what he wanted; he can ignore the rest (and force the Democrats to be furthermore silent on potential abuses of FISA, because they wrote the law he signed).
Now, the practical application of this will be as Bush originally requested. If Bush or his successors in the Executive want to eavesdrop on a foreign person located in the United States, they will seek a Court warrant, because that will permit what they discover to be used in a trial if necessary. Remember, there is a great possibility that a Court, presented with evesdropping evidence seized without a warrant, will rule that evidence inadmissible, and any prosecutor wants to avoid that situation.
And if this bothers Theresa, she just has to avoid conspiring with her peers over the phone.
Posted by Teresa | August 23, 2007 8:05 PM
Y'all may think the potential for abuse is not there, but I have been a government worker (state not federal) and I can tell you mischief will happen. Even if people are not eavesdropping on their political enemies, somebody will be listening in on their ex-wife or their cheating boyfriend. Believe me, I worked for the Department of Social Services and lots of people there used the database of names to check out whether potential babysitters had records or the new boyfriend was a child molester or the family next door was abusing their kids. All of this was strictly against the rules, but happened ALL THE TIME.
Posted by Otter | August 24, 2007 6:38 AM
Teresa~ Yes, we know. We remember all the Christians clinton was monitoring for NO good reason.
Posted by the fly-man | August 24, 2007 7:44 AM
Ray, do you think we even need FISA? The real question is do we retroactively want to excuse law breaking of Federal Statues? Why make laws at all if at the sole discretion of just the President, any law he chooses to ignore he can for what ever reason? Is "just trust us" enough, where do you draw the line?
Posted by starfleet_dude | August 24, 2007 8:36 AM
A comment from Bruce Schneier on Mike McConnell's recent interview that's worth reading:
http://www.schneier.com/blog/archives/2007/08/interview_with_6.html
Posted by TyCaptains | August 24, 2007 1:23 PM
Ray,
That quote you provided only damns your case further:
"The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted."
And if the court finds that the wiretap was improperly handled? Then what? What are the penalties?
Posted by Gwen | August 24, 2007 10:58 PM
I'm missing the piece that explains why McConnell is any more credible than anyone else out of D.C.