Intel: checks and balances -- Rep. Reyes hearings, Part 2

By Carol Gee

The U.S. constitution sets up a system of checks and balances within the entire national government. During the "reign" of our current president (OCP), however, the executive branch has gained at the expense of the legislative and judicial branches. The loss of citizen civil liberties protections under the Fourth Amendment has been particularly serious. And it will be much more difficult to now regain these protections, than it would have been to assure protections along the way.

Increased surveillance of suspected terrorists began shortly after 9/11/01. United States citizens did not know what was going on for years because the spying on Americans was done in secret. It was not revealed until the New York Times broke the story at the end of 2005, after sitting on the story for months. To quote,

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

In a previous post I included important information about what is happening with House of Representatives oversight of the collection of domestic intelligence by the executive branch. Today's post focuses on views of the Committee Chairman versus the testimony of the man accountable in the administration, the Director of National Intelligence, Admiral Mike McConnell. (Hearing information is black font, my own thoughts are in blue font).

After the opening salvos of the House Select Committee on Intelligence Hearing regarding the Protect America Act (PAA), Thursday - 9/20/07, Chairman Sylvestre Reyes (D-TX) got to the real business of the hearing, the question of what does need to do its job of constitutional oversight of civil liberties. Reyes began, "We still do not have the documents that will allow us to understanding the administration's thinking about their surveillance programs. The threats are real, but we must maintain the balance of protecting the nation and our citizens' civil liberties. "

OCP Bush has taken the position that he has inherent constitutional authority as commander in chief, as well as actual permission from within the Authorization for the Use of Force after 9/11, to spy on us without involving the courts. The programs would never have been revealed voluntarily, because they were probably operating illegally. And now that Congress and the courts are part of the process, the administration's earlier justifications would probably wither under any kind of scrutiny. Chairman Reyes holds a good hand, because the administration wants the PAA program to be changed even more and to become permanent before February of next year. And it needs Congress' help to make this happen.

Admiral McConnell, the Director of National Intelligence (DNI) testifying, explained that the PAA rests on "three pillars: No FISA warrants are needed for surveillance of targets in a foreign land, telecommunications company cooperation is compelled, and we are required to get a warrant to target a person in the United States. Only one end of a communication can be targeted. All foreign intelligence will be included. But we still need more; the definition of Electronic Surveillance needs to exclude foreigners in a foreign country. As for the White House documents request, they are still negotiating between the various Congressional committees and the various departments in the White House about furnishing the documentation."

The "Protect America Act" title of the new temporary law is an ironic misnomer. Civil liberties protections seem always to get second billing as administration officials attempt to keep the nature and extent of their programs secret from the people's legislative representatives under the guise of "National Security," or executive privilege. Every Member of the House and every Senator has built in security clearance. And they must know what is going on in order to write and pass the laws needed by the current administration.

DNI McConnell responded to the civil liberties protection question by reiterating what went on in the drafting negotiations leading to passage of the law in early August. "We 20 expert lawyers looking over everything in the 6 or 7 drafts going back and forth. My biggest worry was that we must not be required to have warrants to gather foreign intelligence. The new law does not address reverse targeting because it would have added ambiguity and uncertainty. It was not required because it is covered elsewhere. Minimization (of privacy invasions) is already in place. Such 'incidental' information is purged from the data base if we discover it, or reported with name protection if it is pertinent to intelligence consumers."

The Protect America Act does not spell out what kind of U.S. citizen information can be collected, from whom, how is it safeguarded or who can see it. The law as it is currently written is ambiguous and vague on these key matters. And Admiral McConnell has given apparently conflicting information on the extent of domestic surveillance.

Chairman Reyes asked whether, "no Americans or 100 Americans had been under surveillance without a warrant?" McConnell answered, "How many Americans targeted without a warrant - none under me. There are thousands of foreign targets. We get a warrant if an American is the matter of intelligence. We process out the collected info on billions of transactions. The minimization process that is used means that after a time, the data goes off the database. If we happen to gather incidental American information - we destroy it. If it is of security interest, it must be published, with limits on publication of identity details. Thousands of analysts are trained in this: no spying on Americans. The number 100 was a summary level to help people understand how many warrants issued to do surveillance with Americans as the target." Chairman Reyes requested that McConnell tell the committee how many warrants on Americans there had been issued since 9/11.

Ambassador McConnell was unable to provide the Committee with the number of Americans that have been incidentally heard or read (not targeted) since 9/11/01. As a result of having their end of a communication with a targeted foreign surveillance subject gathered without a warrant, the DNI was not sure whether such information is even available.

The questions must be asked again and again until we get our answers.

To be continued.

(Cross-posted at South by Southwest.)