The Reaction: Warrantless surveillance and national security

By Carol Gee

Congress is beginning to take a fresh look at what they did in a big hurry in early August to amend the Foreign Intelligence Surveillance Act (FISA). Due to Richard Nixon's Executive Branch abuses, FISA originated in 1978 to bring court oversight to warrant less unreasonable searches and invasions of privacy against American citizens. Ironically titled, the "Protect America Act," the recent amendment to FISA does not go far enough to protect our constitutionally guaranteed Fourth Amendment rights.

Soon after passage of the Protect America Act, its controversial aspects raised red flags around the country. The Washington Post's Ellen Nakashima reported (on 9/15/07) that the "Bush Administration [is] Aiming to Ease Surveillance Concerns." To quote:

The Bush administration, facing withering criticism over its temporary foreign intelligence wiretap law, has launched a campaign to assure Democratic lawmakers that the law will not result in domestic surveillance without a court order, and at the same time it has indicated that it is willing to consider changes.

The effort comes as Congress prepares to tackle a broad overhaul of the government's foreign intelligence wiretap authority.

In a letter sent to Capitol Hill yesterday, Assistant Attorney General Kenneth L. Wainstein said the Protect America Act, passed in August under intense White House pressure, does not authorize physical searches of homes, domestic mail or people's personal effects and computers, and that Justice Department lawyers "do not think" it authorizes the collection of medical or library records.

Concerned about the new Act's possible erosion of Americans' civil liberties, the House Judiciary Committee held a House of Representatives Oversight Hearing on 9/18/07 . It was chaired by Rep. John Conyers (D-Michigan). The Ranking Member was Dan Lungren (R-California). Witnesses (full statements in pdf are linked to their names) included: Adm. Mike McConnell -- Director of National Intelligence (DNI), Kenneth Wainstein -- Assistant Attorney General for National Security, and Ben Powell -- Counsel to the DNI.

Additional fears raised by DNI in his opening Judiciary Committee statement -- Pointing out a recent National Intelligence Estimate's expectations of increased danger to the United States from al Qaeda, it is the position of the administration that the new law does not go far enough. They want a new definition of "electronic surveillance." And they are still demanding that retroactive immunization from law suit* be granted to the telecommunications companies who have been required to cooperate in facilitating the intelligence surveillance programs. A New York Times article (9/18/07) headlined "Spy Chief: China, Russia Spying on U.S." To quote:

China and Russia are spying on the United States nearly as much as they did during the Cold War, according to the top U.S. intelligence official.

Mike McConnell, the director of national intelligence, says in testimony prepared for a Tuesday congressional hearing that a law passed last month expanding the U.S. government's eavesdropping power is needed to protect not just against terrorists but also against more traditional potential adversaries, such as those two Cold War foes.

''China and Russia's foreign intelligence services are among the most aggressive in collecting against sensitive and protected U.S. systems, facilities and development projects, and their efforts are approaching Cold War levels,'' McConnell says in his testimony. ''Foreign intelligence information concerning the plans, activities and intentions of foreign powers and their agents is critical to protect the nation and preserve our security.''

The new law will also enable the intelligence agencies to identify ''sleeper cells'' of terrorists in the United States, according to McConnell's statement to the House Judiciary Committee.

The Judiciary Committee hearing was carried on C-SPAN. Watching and listening twice and taking notes, I clarified for myself a great deal about what concerns remain with members of Congress. For a good summation read Jesse Lee's The Gavel: (blogging for Nancy Pelosi) "Judiciary Hearing on Warrant less Surveillance and FISA." The post includes several videos and some excellent quotes. Several key areas of concern emerged from the committee member's questions.

The Hearing's "Bones of contention" from its members --

History of the Bush administration's broken trust with Congress - Several members of the committee discussed the failure of Congress to exercise proper oversight in past years. They also reminded the witnesses that the administration began the surveillance operations in secret without appropriately informing key members of Congress. Ranking Member Lamar Smith, (R-Texas) asked for a full explanation of what the program does to protect civil liberties. Representative Tammy Baldwin (D-Wis.), asked a series of questions regarding whether the scope of congressional oversight was covering all of what began as mere "presidential authorizations." Representative Zoe Lofgren (D-Cal.), pointed out that the amendment is "either poorly drafted or intentionally drafted to be overly broad." Rep. Delahunt (D-Mass.),

reminded the witnesses that the mistrust is not personal but institutional. . . FISA came about because of executive abuses. We are not working around the margins here. We can give you what you need and assure fundamental freedoms at the same time.

Sheila Jackson Lee (D-Texas), asserted that

Congress has not been able to rely on the administration's information provided to Congress. . . The Protect America Act can be a stark intrusion on innocent Americans. Why not get a warrant?. . . Now we are contending with spy satellites. Americans are up in arms. You take away the bar [courts], there could be miscues. The spiralling sown of civil liberties is the real danger."

Amount of work needed to get a FISA warrant -- Rep. Jerry Nadler (D-NY) explored the claims of DNI McConnell that a FISA warrant takes 200 man hours of work to prepare, as asserted in the El Paso interview.* Representative Delahunt assured the witnesses that

Congress would provide the intel community "all the resources you need" to do the work and "assure fundamental freedoms at the same time." He noted that the FISA court warrants are "perfunctory. Over 10,000 have been issued and only a small number (15-17) have been denied."

DNI McConnell's declassification of information in an interview- After the issue had been raised by Chairman Conyers and Rep. Bobby Scott (D-Va), Representative Betty Sutton (D-Ohio) got McConnell to admit that he declassified intelligence information on his own authority for an El Paso Times interview. He revealed the summary number ( less than 100) of cases with FISA warrants authorizing targeted domestic surveillance*.

Nature of intelligence failures before 9/11 -- . . Sheila Jackson Lee reminded the witnesses that "9/11 had nothing to do with the FISA court. The information was out there. It could have been avoided. It was the intelligence culture, not the American people at fault here." Adm. McConnell agreed about where the failures 'to connect the dots' were located, and that 9/11 could have been avoided with good intelligence sharing. Rep. Artur Davis (D-Alabama) closed the questioning by confronting Adm. McConnell's inference that not missing a call from someone in a San Diego "sleeper cell," could have prevented 9/11. Davis said, "It was a number of critical events, not just his one." McConnell conceded, "We could have done a better job as a community."