Thursday, October 11, 2007

Intel: and then they adjourned -- Rep. Reyes hearings, Part 4

By Carol Gee

The Foreign Intelligence Surveillance Act (FISA) was drastically amended by Congress in August. The resulting temporary law is a major assault on the civil liberties of our citizens. The amendment is, sadly, titled "The Protect America Act" (PAA). J. Thomas Duffy at The Reaction linked to an interesting post about what is now going on in Congress with the PAA: "New Train Wreck Coming on FISA" by Matt Stoller (Sep 25, 2007). Stoller discusses what might soon happen to this temporary measure in Congress unless there is strong citizen protest. To quote:

Nancy Pelosi and Harry Reid are disorganized and giving no signals to members on the FISA wiretapping expansion and retroactive immunity to telecommunications companies, which is going to result in horrific legislation. In the Senate, Jay Rockefeller is once again inviting Mike McConnell into closed hearings on how to fix the FISA law, and the markup is next week. There are no drafts of legislation around, which is a bad sign. The Senate Judiciary Committee is hamstrung by Dianne Feinstein, who prevents a majority, and by the instincts of Democrat leaders who, in a conflicts between Judiciary and Intelligence, will go with Intelligence because of a perceived fear of national security weakness.

Rockefeller, in order to get something 'bipartisan' that can pass the Senate, is working with Kit Bond to draft something that can get to 60 votes. Bond of course is close to McConnell, and so it's likely that the bill coming out of the Senate Judiciary is going to contain retroactive immunity for telecom companies (thank you lobbyist Jamie Gorelick) and a permanent fix to FISA that expands executive power. Reid and Pelosi, ironically, by ordering Democrats to move quickly so as to fix the problem they caused in July, are just accelerating the process of crafting this horrendous bill. This is complicated of course by the millions that telecomunications companies give to members on the Hill to prevent things like net neutrality from passing, though of course here too there's no logic since much of that money goes to Republicans.

In the House, the Intelligence Committee is slightly better, but we have no drafts of legislation and it's going to be marked up next week.

Which brings up House Intel Committee Oversight -- This post is the final in a series detailing (from my real-time notes paraphrased) what individual members of the House Select Committee on Intelligence said during a recent (9/20/07) hearing.

(See "Fifty Ways to Understand the "Protect America Act" for help with the definitions and/or jargon). The posts "Opening Salvos," "Checks & Balances," and "The Devil is in the Details" bring us today to the hearing's midway point, where Rep. Holt, a Democrat, was questioning Director of National Intelligence Adm. Mike McConnell.

Rep. Rush Holt (D-N.J.) asked about the terms of the new law regarding foreign intelligence:

Does it allow searches of homes, mail, and personal records - such as medical or library records? Would you object to changing the language to prohibit certain practices? Later he asked about the law's Emergency Standards now under the new law. Who determines that? And who provides oversight in the agency? . . . Did lawyers from the V.P.'s office office work on this legislation? Independence --the ability to speak truth to power -- is so important for the DNI. Do you have that?

DNI McConnell answered by giving information on the following issues:

  • Regarding bulk collection of communication data, metadata amounts to the communications roadmap...
  • "I would not object to statutory language prohibiting practices, but I would have to see it first." The DNI admitted that he had not fully read the 6 page law (during those final rushed negotiations between Congress and the Whitehouse). There was extensive consultation between the team of 20 lawyers about it. However, McConnell strongly reiterated his willingness to keep his distance from those to whom he is supposed to speak the truth...
  • McConnell brought up again his view that "Before we changed the law we were losing 50% or 2/3 of the intelligence capability." (?!)
  • Rep. Holt asked about McConnell's claim that U.S. help along with German surveillance recently caught a group of terrorists. Holt revealed that efforts to catch the German terrorist cell began before the new law. Adm. McConnell replied that his quotes were "taken out of context."
  • An"emergency" is determined by the analyst, according to the DNI. Decisions would be made the same way under the old FISA law and the new PAA law.
  • There is no judicial oversight with foreign intelligence through warrants. The oversight is at three levels: 1) civil liberties protection is reviewed by the professionals internally at the agency level; 2) the procedures are reviewed by the DOJ and also reviewed by the FISA court; and 3) finally by Congress.
  • As for the information on how many U.S. citizens are overheard at the incidental end of wiretapped conversations, the DNI said that "it might not be knowable."

Rep. Darrell Issa (R- Cal.) -- Asked if the Assistant A.G. testifying (Kenneth Wainstein) would be willing to go to jail over the issue of whether a warrant was required. The AG said he was not willing to break the law. Rep. Issa then discussed the "reported 12 hours wait (another 2 1/2 pages of paperwork)" in the kidnapped soldier case (see previous posts). The member, contrasting General Petraeus's war power of killing terrorists vs. the intelligence process, questioned people's objections to listening or looking in on troops in theater. Rep. Issa gave a warning that the troops "will be monitored in theater, and they expect to be." He also proposed that th"e 4th amendment follows citizens overseas." Saying to the Democratic majority, "please don't let us hurt ourselves again," regarding passage of the new law, he wants support for the change. Congressman Issa expressed anger because the committees were "selectively given information (regarding Israel's bombing in Syria)." Adm. McConnell stated that "sunshine is good," referring to keeping Congress informed on as much intelligence as possible.

Rep. John Tierney (D-Mass.) -- Tierney read the [105-a of PAA] language in Congress' proposed Bill #3356. "What was the objection?" he asked DNI McConnell. The DNI explained: "A surveillance Target can only be one sided; whether you intercept incidental conversation is not the issue." Rep. Tierney suggested that, "Technology may not have been issue. The real issue was probably who decided who is to be targeted." Adm. McConnell reiterated that he objects to the FISA court having anything to do with foreign to foreign surveillance. Tierney asked:

"Could the court rule on the 'reasonableness' of methods and filters or privacy mitigation used by the system. 'Clearly Erroneous' is now the new standard that pertains to the surveillance review that would prohibit further such agency actions.Would you object to an Inspector General review?"

McConnell implied that foud levels of review is plenty. Later in the hearing, Tierney returned to the number of communications in the database: "The subset could still be a substantial number." The DNI does "not believe the new law required minimization, but it is still being used anyway." Tierney asked whether there would be objection to FISA court review of the minimization procedures? McConnell did not want to be "forced under a time constraint." Tierney replied that a "political timetable was what was going on just before the last minute law was rushed through. We should require inspector general reviews and audits in the new law. We need to understand this very large data base to, from, or about transactions. Can you look at a sampling?" Adm. McConnell said he would "see what is doable."

Rep. C. A. Dutch Ruppersberger (D-MD) -- quote:

There is no question that you will get your tools. The real question is oversight, checks and balances. We need to clarify these laws... The National Security Agency is in my district... I believe we're close to resolution, but our issue is oversight. There is no need to have probable cause in an emergency. But no judicial oversight; it is not the constitution. I agree that telecoms need immunity. We want to know what we are giving immunity for. But we must have the documents. Nothing blanket will be authorized.

DNI McConnell said that he recommended that Congress gets what it needs of the documents from the administration. Later in the hearing, Rep. Ruppersberger said:

We're looking for clarity. And we're getting very close here. We must have judicial oversight. Right now there is not independent judical review. We are a county of laws. Minimization cannot take the place of court oversight. We'll give you the resources if you need it to handle the workload. Right now there is search and seizure without a court order; it says so in the law. We don't have clarity. The real question is the constitution. That is our job to protect the Constitution.

Rep. Jan Shankowsky (D-Ill.) -- Would the Director please provide (in classified session if necessary) classified specific instances of when the agency was prevented altogether from collecting foreign intelligence. Rep. Shankowsky asked if the congressional proposal, "3356," fixed the prob. AG Kenneth Wainstein -- "It might have required us to make the legal showing that the target was an agent of a foreign power." Asking about Minimization and the collection of Incidental information - the Member asked how often it is used. How often personal info gets collected under the new act? How is it disseminated? How can we do oversight if you can't know what is in the database? DNI McConnell said that "finding out might require significant extra effort on our part. There are billions of transactions. Queries of the database is the only way how we can know about Incidentals. Shankowsky asked about civil liberty protections, saying that protections must become a priority regardless of the effort required. Chairman Reyes reiterated that "the Committee will do that."

Rep. Jim Langevin (D-RI) -- The intelligence gathering process is both legal and technical. The PAA did nothing to change the technical requirements that take a lot of time, also. Rep. Langevin felt that Adm. McConnell had "made inconsistent statements - saying that House bill #3356 was unacceptable, that you had never read the bill because it was so complex. It was only 6 pages long." McConnell retold the story of...

...the 4+3 versions of bills exchanged between Congress and the Whitehouse. Senior people asking me if I agreed philosophically. And I did. But there turned out to be the possibility of unintended consequences as the lawyers got to looking at 3356. Now there is time for us all to agree on some language.

Todd Tiahrt (R- Kansas) -- asked, "Is it working, the new law?" Adm. McConnell restated that:

  • We had lost half to two thirds of our capability. In a few days we were back up in business.
  • Minimization has worked adequately for 30 years. Incidental conversation are a tiny tiny percentage of billions of transactions. When someone in the U.S is targeted a warrant would be required.
  • Agents get training and oversight and recertification is required.
  • Almost all intelligence is foreign to foreign contacts.
  • With incidental conversations, if there is no harm to the nation -- it is minimized. Otherwise it could be absolutely the most important call, perhaps an attack could be averted. A call made in the U.S. before the 9/11 situation was not captured. But now it would go to the FBI for surveillance.

Later, Tiardt continued: He does not see search and seizure without using minimization. He asked about the rights of foreigners. McConnell stated that "now the FISA court reviews all the procedures," adding that:

What we have now works well, and I'm hesitant to change any of it. I want Congress to get confidence in the process. Come visit us; meet the people -- the professionals. But because of leaks to the press we now can't do a lot of things.

The Committee was then adjourned by the Chairman.

My thought at the end was this: "Again, just trust us."

(Cross-posted at South by Southwest.)

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