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August 30, 2007

The DNI speaks

Christopher Alleva
Chris Roberts at the El Paso Times has an excellent interview with National Intelligence Director Mike McConnell. In this Q&A, McConnell clearly explains the debate on the extension of the foreign intelligence surveillance act earlier this month. The administration's bill extending the authority to monitor electronic communication from overseas without a warrant passed 227 to 183 with 41 Democrats joining the majority.

This has caused a lot of consternation among the Democrats. The leadership has been desperately trying to frame the issue as a threat to civil liberties and personal privacy. Framed this way, the issue really gets their reflexive anti-war base excited. Less excitable Democrats, although a distinct minority, are more concerned with the national security than pandering to the base.

Coordinating with the media, the Democrats have tried to cast the terror surveillance programs as "controversial."  Clamoring to close Guantanamo and arguing to extend the same rights and privileges to terror suspects that citizens enjoy, the Democrats know they are vulnerable on this issue, even with cover from the media. From the subtle bias at the Washington Post to the incoherent unfairness from the likes of MSNBC and Bill Moyers, it has been hard for the public to get an accurate reading on this matter. McConnell goes a long way to clearing the fog.

McConnell's previous assignment was director of the NSA, and as such he is intimately familiar with the issues surrounding these programs. When he was nominated in of January 2007, against some people's better judgment, the administration had already made a decision to put the terrorist surveillance program into the FISA court. This informed McConnell's preparation for his confirmation hearings. McConnell recounts the severe limitations and arcane technicalities of the program he was confronted with: 
"...the first thing I want to know is what's this program and what's the background....  I was surprised at what I learned. First off, the technology had changed and we had worked ourselves into a position that we were focusing on foreign terrorist communications, and this was a terrorist foreigner in a foreign country. The issue was international communications are on a wire so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that. So the most important thing to capture is that it's a foreigner in a foreign country, required to get a warrant. Now if it were wireless, we would not be required to get a warrant."  
To McConnell's dismay, he found out he was not only limited by the wire-line warrant requirement he was limited to terrorism only. He quipped wryly:
"... the last time I checked we had a mission called foreign intelligence, which should be construed to mean anything of a foreign intelligence interest, North Korea, China, Russia, Syria, weapons of mass destruction proliferation, military development and it goes on and on and on."
Talk about having your hands tied behind your back! So when McConnell took over he was only permitted to monitor wireless communications of terror suspects at the whim of eleven judges at the FISA court. All other intelligence gathering was against the law!

Is this right?  

McConnell worked to remedy this unworkable situation as he was faced with conflicting opinions from the various FISA judges,
"I said we've gotten ourselves into a position here where we need to clarify, so the FISA issue had been debated and legislation had been passed in the house in 2006, did not pass the Senate. Two bills were introduced in the Senate, I don't know if it was co-sponsorship or two different bills, but Sen. (Dianne Feinstein, D-Calif.) had a bill and Sen. Specter had a bill... So, it was submitted to the FISA court and the first ruling in the FISA court was what we needed to do we could do with an approval process that was at a summary level and that was OK, we stayed in business and we're doing our mission. The FISA court ruled presented the program to them and they said the program is what you say it is and it's appropriate and it's legitimate, it's not an issue and was had approval. But the FISA process has a renewal. It comes up every so many days and there are 11 FISA judges. So the second judge looked at the same data and said well wait a minute I interpret the law, which is the FISA law, differently.... we found ourselves in a position of actually losing ground because it was the first review was less capability, we got a stay and that took us to the 31st of May. After the 31st of May we were in extremis because now we have significantly less capability."
What a run around. Don't the FISA judges have any judgment? The intelligene oprations had to contend with this bureaucratic and judicial stranglehold. McConnell says it takes about 200 man hours to do one telephone number. And the FISA judges can raise hypothetical questions ad nauseum. Is this foreign intelligence? How do you know it's foreign intelligence? What does Abdul calling Mohammed mean?  

McConnell  says that this process makes him pull agents off the line to go through the FISA process. They have to justify what it is they know and why. Then it has to be formally written up and go through the (NSA) signature process. Then it has to be taken through the Justice Department, signed off there. Then it can be taken down to the FISA court. An exasperated McConnell said it was like going backwards; they couldn't keep up. 

This is really eye-opening. The incredible thing to me is that 183 Democrats voted against this commonsensical revision to the law. The only way you could vote against this was if you wanted to pander to the base or if you are hoping that by blinding our intelligence we get hit and they can blame President Bush.

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