McConnell Misleads Congress

In testimony before the Senate Homeland Security and Governmental Affairs Committee today, Director of National Intelligence Mike McConnell testified that the recent high-profile arrests of terror suspects in Germany were made possible by the amendments to FISA passed by Congress last month. According to the New York Times:

When asked by the chairman, Joseph I. Lieberman, independent of Connecticut, whether the new law that Congress adopted last month facilitated the German arrests, Mr. McConnell said, “Yes, sir, it did.”

Mr. McConnell said the ability to listen in on the plotters “allowed us to see and understand all the connections” they had with a breakaway cell of a Central Asian terrorist group, the Islamic Jihad Union, operating in Germany. “Because we could understand it, we could help our partners through a long process of monitoring and observation, realizing that the perpetrators had actually obtained explosive liquids,” he said.

When Mr. Lieberman, noticeably impressed, later restated what Mr. McConnell had told him — that the eavesdropping ability allowed under the updated surveillance law helped foil the purported plot in Germany — Mr. McConnell did not object.

The original version of this story, which I read this afternoon, simply reported McConnell's claim--improbable as it is--without questioning it. But the current version of the story contains this graf:

But another government official said Mr. McConnell might have misspoken. Mr. McConnell said the information had been obtained under a newly updated and highly contentious wiretapping law, the Foreign Intelligence Surveillance Act. But the official, who has been briefed on the eavesdropping laws and the information given to the Germans, said that those intercepts were recovered last year under the old law. The official asked for anonymity because the information is classified.

That's kind of an important point, if true. McConnell, whose clear agenda is to convince Congress to renew the FISA amendments passed in August, made a bold claim about the new law, one that does not appear to be true. Members of Congress should press him immediately to clarify the record.

Moreover, it's important to note that the communications to which McConnell is referring--which took place between foreign nationals in Germany and foreign nationals in Asia--would have been exempted from FISA under all versions of the bill that were up for consideration last term, not just the FISA-gutting Republican version of the bill that eventually passed. For instance, here is the text of section 105A of the Democratic House version of the bill:

Sec. 105A. Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

The Democratic Senate version had identical language.

So even if McConnell was telling the truth about the interception of these communications, it is not a data point in favor of the Republican version of the bill. No one on either side of the aisle believes that FISA should apply to the interception of foreign-to-foreign communications, and to the extent McConnell and others point to such examples to justify renewing the law, they needed to be called out for it.

The more I study the amendments to FISA that were passed last month, the more convinced I am that much of the language the administration sought (and received) was prompted not by any adverse rulings by the FISA court, but by legal developments wholly unrelated to FISA. Section 105A of the new bill clearly is intended to exempt a broad category of communications from FISA's purview (not only foreign-to-foreign communications, but foreign-domestic communications as well).

But Section 105B seems intended to function--at least in part--as a substitute for the National Security Letter provisions of the Patriot Act, which have been the subject of intense legal scrutiny and were declared unconstitutional just last week. As commenter JaO observed in response to a previous post:

It seems to me that 105B can be used in lieu of NSLs. The new FISA provision allows the NSA to use a single "directive," which does not even identify the ultimate targets, to vacuum in everything that multiple, targeted NSLs might otherwise provide, and more. The principal requirement is that the information sought is deemed to "concern" someone believed to be outside the country -- not terrorists, but anyone at all. If that foreign nexus is present, it would appear to make NSLs unnecessary.

So the NSA could give a single directive to, say, Yahoo or the University of Michigan or your employer, requiring the email host to provide a copy of all its stored email traffic. The NSA then would be at pains to follow its own procedure to filter only anything that "concerns" a foreigner. Once the NSA can get all that with a single directive, there is much less need for NSLs.

The New York Times story last week on the controversy surrounding the use of National Security Letters reported that "[e]arlier this year, the bureau banned the use of the exigent [national security] letters because they had never been authorized by law."

I think it is entirely possible that the administration used the pretext of amending FISA to create a back-door route around various legal obstacles that had impeded its use of National Security Letters to obtain information. With all of the attention focused on the NSA's need to intercept foreign communications passing through U.S. switches, Congress was talked into passing a law that not only freed the NSA of important legal constraints, but may well have provided the FBI with a legal mechanism for bypassing the entire National Security Letter process, which had increasingly become the subject of congressional, judicial, and media scrutiny.

I'm worried that with all the attention the Patraeus Show is receiving, Congress is paying too little attention to the FISA bill. I'm not at all convinced that most members of Congress who voted for the bill (or even those who didn't) understand just how broad its language is. The administration is going to work very hard to make the debate be about whether we should be listening to the foreign communications of terrorists. But that's not at all what the debate is about. Democrats in Congress need to start asking hard questions and coming up with language that will limit the scope of this bill.