Parsing McConnell's FISA Comments

In case you missed it on the National ACLU blog, check out this post by Michael German, Policy Counsel on national security, immigration and privacy. He explains how some of the Director of National Intelligence's public statements in support of warrantless wiretaps distort reality, the issues, and the law.

There's been a lot of confusion of late about just how vital the Protect America Act has been in actually protecting Americans and preventing terrorism. First there were unrealistic claims of each FISA warrant taking 200 man hours to process. Wrong. Then we heard that the new spy law was used to foil a terrorist plot in Germany. Two days later we learned that, uh, actually, no – it wasn't. We've also heard that Americans will die because of this public debate. Whether that's true or not, we can at least say for sure that it's anti-democratic.

The latest go-round in this campaign of misinformation is the new story DNI Mike McConnell was trying to sell on the Hill. He claims that the loophole in FISA was responsible for a delay in surveilling Iraqi insurgents that had kidnapped American soldiers. Which loophole? Why the very same one that the Protect America Act "fixed." Turns out, this "emergency"didn't even arise until three days after the soldiers were kidnapped and it was internal deliberations at the Department of Justice – not anything lacking in FISA – that caused the delay. The press has caught wind and it's not looking good for McConnell's latest tall tale.

Regardless, we thought we'd take this opportunity to give you a brush-up and some basic pointers on FISA. Enjoy:

• FISA does not and has not ever limited the ability of the government to intercept foreign communications overseas. The NSA can listen to Iraqi insurgents all day every day without ever needing a warrant.
• FISA (as it existed before the Protect America Act) only limited the interception of communications inside the United States (the NSA is a component of the Department of Defense, so it was the military spying on Americans that FISA was intended to regulate).
• With the U.S. military fully engaged in Iraq the NSA should have no difficulty intercepting every communication in Iraq, as well as any communication coming in or out of Iraq. There was no need to ever implicate FISA.
• Changes in technology may have made it possible to seize foreign-to-foreign communications in the United States, but that doesn't mean such conversations can only be seized in the U.S. The NSA could have seized them elsewhere.
• The timeline published by the Associated Press shows the soldiers were kidnapped on May 12. The FISA Court approved related wiretaps on the 14th. This so-called "emergency" did not even come up until the 15th. Any delays in determining how to proceed were internal to the executive branch – they were not caused by the FISA Court. Even after all executive branch discussions were completed it took two hours to find the Attorney General – obviously it was not being treated as an emergency if they didn't bother to find the AG. Once his signature was obtained, and the FBI was notified, they were up on the surveillance within ten minutes.
• The FISA court does not turn down many requests, so any concern that they might not have enough probable cause means the targets of the surveillance were probably far removed from Iraqi insurgents.

Hopefully this clears things up for the record. It also raises an important question: if these changes were really necessary why does the government have to make up fake stories to support their argument (especially ones that are so easily debunked)?

In the coming weeks, Congress will take another look at the Protect America Act. We hope it will take the time to evaluate just what this law did to civil liberties and the Fourth Amendment. We also hope that it will not let the administration or Mr. McConnell attempt to make anything resembling a silk purse out of this sow's ear.