Intel: the devil is in the details -- Rep. Reyes hearings, Part 3

By Carol Gee

National intelligence has been in the news for over two months, because in August the Foreign Intelligence Surveillance Act was amended to the Protect America Act - PAA. After Congress came back from recess, legislators began to look more carefully at the results of what they had done. Formal hearings ensued.

House Permanent Select Committee on Intelligence -- Previously I have written two posts on the House of Representatives Intel Committee hearings on the PAA. Here are the links: 1) Sept. 22, 2007 -- Rep. Reyes House Intel Hearing - opening salvos; and 2) Sept. 24, 2007 -- Intel: checks and balances. Rep. Reyes hearings, part 2.

Today's post, Part 3, explores that hearing as members questioned the witnesses. (I am paraphrasing from my real-time notes). You can draw your own conclusions.

Rep. Peter Hoekstra -- (R-Mich) was questioning DNI McConnell, who said -- (my summary):

It is unlawful to collect intelligence against an American without a warrant. Too much emphasis has been put on that. . . Yes, the (Intel) community could have done better on preventing 9/11. . . "Incidentals" (conversations at the other end from the target) are minimized. They will be purged from the database if we find it, and it have no foreign intelligence value. They must be reported if it has intel value (though we may protect the identity of the incidental). . . . We asked that the law be changed because the FISA court orders were such that we had to get a warrant to surveil the terrorists who kidnapped the soldiers in Iraq. Could we have used the (72-hour) Emergency Provisions? That is not the point - we would have been required to show probable cause, a lot of work and trouble. The whole process slowed us down. The point is that there should be no 4th amendment right at all for foreigners. The reason a warrant was required before it was just changed, was the mode of communication, and where the signal picked up - in the U.S. The law did not keep pace with technology.

Chairman Sylvestre Reyes (D-Texas) interjected, reiterating that the FISA law's emergency provision is immediate and to be confirmed 72 hours later. Adm. McConnell again stated that, "No, this is a foreigner in a foreign country. We object to meeting court standard that we must find probable cause in getting a warrant. Foreign signal intelligence requires no warrant. The main thing is to get people to recognize that and deal with it."

Rep. Anna Eshoo (D-Cal.) said:

People are really worried about this. . . Regarding your interview with an El Paso newspaper, we House Members were told the number 100 ( warrants against U.S. people) was highly classified. You decided to declassify it. How is that possible? You also confirmed in that interview, for the first time, that private companies had helped with government surveillance, thereby undermining the Justice Department in the court cases. . . And you claimed that Americans are going to die because there is this debate about this. . . You have done damage to what you bring forward, put a dent in your own credibility.

Admiral McConnell explained that it was a judgment call to declassify that number, and that the President had given him the authority to declassify, using his own judgment. Regarding claims that"somehow Americans are going to die," the DNI reiterated that "they will die if we debate this and it compromise intelligence sources and methods."

Rep. Heather Wilson (R-N. Mex) To the DNI: "You can target U.S persons overseas, including soldiers. right?" Admiral McConnell replied that "The DNI or Attorney General have to certify that it is for a foreign intelligence purpose regarding an agent of a foreign power. Reverse targeting is against the law. . . Because of the problems with FISA requirements before the PAA, it took 12 hours to turn on the wiretap in the American soldier kidnap case." LATER in the hearing, Rep. Wilson told people that she regularly makes on sight visits to where the surveillance work is going on to see for herself how it is working. She also questioned Asst. AG Kenneth Wainstein who reiterated, to paraphrase,

It is wrongful to not meet probable cause standard if a surveillance warrant is to be issued. And later, under the law, we would have to notify U.S target that we had surveilled them. . . The AG must, every 6 months, report to Congress on AG warrants and FISA."

Discussing the kidnap case* in Iraq of American soldiers (see links below), and how long it took to get a wiretap to listen to the terrorists, Admiral McConnell emphasized, "We've gotta get this right." AG Wainstein joined the DNI, saying "We need to be agile, to be able to jump. Anything that slows down the process is cumbersome." Chairman Reyes disagreed on the cause and effect logic. "The delay was a failure of leadership. Jim Baker testified yesterday all it takes is a phone call." Adm. McConnell shot back, "But you still have to get approval with probable cause." Rep. Reyes said, "It is imperitive to understand that there is the ability to make that call." Mike Thompson, the DNI's Counsel said that - regarding the 12 hours - "The Attorney General was out of town." Reyes announced that the Intel Committee "has the event time line." AG Wainstein talked about "how hard 'probable cause' was with Massawi. There are felony penalties if we violate the law. Common sense approach would not work because the FISA court said we would not be in compliance." Chairman Reyes reminded everyone, "We are not in a time crunch now, as before the Protect America Act was passed. . . We want to give the tools necessary to keep us safe, despite the differing opinions."

Thoughtful columnists are beginning to speak out in droves, Joseph Galloway of McClatchy Newspapers, for example, who talked today about the "fine mess we're in." To quote:

Although Congress passed a temporary extension of the FISA law in August that carries it through to February, the administration is already back demanding the immediate passage of a permanent law that permits the government to snoop on all private communications.

They've also requested a few "improvements," including a retroactive waiver of liability for the big telecommunications companies that gave the government unfettered warrantless access to phone calls and e-mail communications in violation of existing law.

This, even as one member of Congress revealed last week that the temporary extension of the snooping law was jammed through in August when administration officials stampeded legislators by revealing secret information about an alleged terrorist plot to bomb the Capitol -- which (surprise!) never materialized.

The member was Rep. Jane Harman (D-CA), Think Progress reported: "Rep. Jane Harman (D-CA), speaking at a FISA event yesterday organized by the Center for American Progress Action Fund, stated that the terror claims were “part of a well-orchestrated campaign” by the administration to politicize the FISA debate."

Background reading:

1. Chariman Reyes' Opening Statement -- 4 pages-pdf
2. *McConnell Tells More About Iraqi-Insurgent Wiretapping Episode, by Spencer Ackerman -- September 20, 2007, 7:08 PM
3. *Source: McConnell's Account of Insurgent Wiretap Controversy 'Terrible', by Spencer Ackerman -- September 20, 2007, 8:07 PM
4. Prairie Weather: "Looks like we've got a serial liar here." 9/21/07

(Cross-posted at South by Southwest.)