Re: Reported Decline in Surveillance Spurred Quick Law
- From: Jack Linthicum <jacklinthicum@xxxxxxxxxxxxx>
- Date: Sun, 12 Aug 2007 03:21:14 -0700
On Aug 11, 5:50 am, Jack Linthicum <jacklinthi...@xxxxxxxxxxxxx>
wrote:
Terror threat worked on Congress too, why? The administration keeps
nibbling away, six months here, September, maybe in April 2008,
whenever, just don't make us live without our toys.
"All foreign intelligence" targets in touch with Americans on any
topic of interest should be fair game for U.S. spying, Mike McConnell,
the director of national intelligence said, according to two
participants in the Aug. 2 conversation.
"The real train wreck happens in September," said a senior
administration official involved in the negotiations with Congress. He
was referring to House Speaker Nancy Pelosi's declaration hours after
the bill's passage that portions are "unacceptable" and that the
public will not want to wait six months "before corrective action is
taken."
How the Fight for Vast New Spying Powers Was Won
By Joby Warrick and Walter Pincus
Washington Post Staff Writers
Sunday, August 12, 2007; A01
For three days, Mike McConnell, the director of national intelligence,
had haggled with congressional leaders over amendments to a federal
surveillance law, but now he was putting his foot down. "This is the
issue," said the plain-spoken retired vice admiral and Vietnam
veteran, "that makes my blood pressure rise."
McConnell viscerally objected to a Democratic proposal to limit
warrantless surveillance of foreigners' communications with Americans
to instances in which one party was a terrorism suspect. McConnell
wanted no such limits. "All foreign intelligence" targets in touch
with Americans on any topic of interest should be fair game for U.S.
spying, he said, according to two participants in the Aug. 2
conversation.
McConnell won the fight, extracting a key concession despite the
misgivings of Democratic negotiators. Shortly after that exchange, the
Bush administration leveraged Democratic acquiescence into a broader
victory: congressional approval of a Republican bill that would expand
surveillance powers far beyond what Democratic leaders had initially
been willing to accept.
Yet both sides acknowledge that the administration's resurrection of
virtually unchecked Cold War-era power to surveil foreign targets
without warrants may be only temporary. The law expires in 180 days,
and Democrats, smarting from their political defeat, have promised to
alter it with new legislation to be prepared next month, when Congress
returns from its recess.
"The real train wreck happens in September," said a senior
administration official involved in the negotiations with Congress. He
was referring to House Speaker Nancy Pelosi's declaration hours after
the bill's passage that portions are "unacceptable" and that the
public will not want to wait six months "before corrective action is
taken."
Until September -- and possibly for much longer -- the new law will
enable the high-tech collection of foreign communications without
judicial scrutiny on a vastly larger scale than previously possible,
allowing billions of phone calls and e-mails inside as well as outside
the United States to be routinely screened for possible links to
terrorism and other security threats.
Congressional, administration and intelligence officials last week
described the events leading up to the approval of this surveillance,
including a remarkable series of confrontations that ended with
McConnell and the White House outmaneuvering the Democratic-controlled
Congress, partly by capitalizing on fresh reports of a growing
terrorism threat.
"We had a forcing function," a senior administration official said,
referring to the intelligence community's public report last month
that said al-Qaeda poses a growing threat to the United States and to
lawmakers' desire to leave town in August. "The situation was key to
making it work," the official said, adding that the report's
conclusions were "fortuitous" rather than engineered.
The encounters left mistrust on both sides that will complicate the
next round of debate. "They said, 'Trust us, we'll fix it,' " the
senior administration source said of the Democrats' proposals. "But
every time the bill came back, it had language [the administration]
couldn't live with."
What McConnell wanted most from Congress was to be able to intercept,
without a warrant, purely foreign-to-foreign communications that pass
through fiber-optic cables and switching stations on U.S. soil. That
provision was meant to restore a U.S. capability that existed three
decades ago, when a 1978 law allowed warrantless surveillance of
foreign calls that were overwhelmingly relayed wirelessly.
Since then, advances in technology have caused 90 percent of global
communications to pass through wires -- mostly optic fibers capable of
carrying 6,000 calls in a strand. That development has been a boon to
the National Security Agency, which has worked hard to monitor the
traffic with U.S.-based taps and concluded it was doing so legally.
But in a secret ruling in March, a judge on a special court empowered
to review the government's electronic snooping challenged for the
first time the government's ability to collect data from such wires
even when they came from foreign terrorist targets. In May, a judge on
the same court went further, telling the administration flatly that
the law's wording required the government to get a warrant whenever a
fixed wire is involved.
"All of a sudden, the world flipped upside down," said a senior
administration official familiar with the rulings. The official
declined to be identified by name, citing the confidentiality of court
decisions involving the Foreign Intelligence Surveillance Act.
The decisions had the immediate practical effect of forcing the NSA to
laboriously ask judges on the Foreign Intelligence Surveillance Court
each time it wanted to capture such foreign communications from a wire
or fiber on U.S. soil, a task so time-consuming that a backlog
developed. "We shoved a lot of warrants at the court" but still could
not keep up, the official said. "We needed thousands of warrants, but
the most we could do was hundreds." The official depicted it as an
especially "big problem" by the end of May, in which the NSA was
"losing capability."
McConnell even appealed directly to the FISA court, meeting with
judges to describe the impact the decisions were having. The judges
were sympathetic but said they believed that the law was clear. "They
said, 'We don't make legislation -- we interpret the law,' " the
senior administration official said.
The rulings -- which were not disclosed publicly until the
congressional debate this month -- represented an unusual rift between
the court and the U.S. intelligence community. They led top
intelligence officials to conclude, a senior official said, that "you
can't tell what this court is going to do" and helped provoke the
White House to insist that Congress essentially strip the court of any
jurisdiction over U.S. surveillance of communications between
foreigners.
The opening shot in the administration's campaign was a bill sent to
Capitol Hill on April 27; officials said it had been in the works
since a public controversy erupted in late 2005 over the
administration's "Terrorist Surveillance Program" involving
warrantless surveillance of communications between Americans and
terrorism suspects overseas.
The administration's 66-page measure was put together by an
interagency group of lawyers headed by Benjamin A. Powell, the general
counsel for the director of national intelligence (DNI). Powell, who
had once worked in electronic surveillance programs for the FBI and
the Air Force, joined the office of the DNI last year after helping
shape the administration's intelligence policy as a White House
associate counsel and special adviser to the president.
On May 1, McConnell appeared before the Senate Select Committee on
Intelligence to press for action on amendments to the Foreign
Intelligence Surveillance Act. The 30-year-old statute was badly
behind the times, failing to take into account modern communication
methods, he said. "We are actually missing a significant portion of
what we should be getting," McConnell told the senators.
McConnell and other officials ultimately briefed about 250 lawmakers
on the issue and encountered little resistance to their proposed
repair for surveillance involving purely foreign communications. Sen.
John D. Rockefeller IV (D-W.Va.), the intelligence committee chairman,
who had received some of the first detailed briefings on the
surveillance program, called Vice President Cheney in late June to
explore options.
"I want to move forward," he said. But Democratic leaders wanted
something in return: the release of long-sought administration
documents describing the controversial warrantless wiretapping program
Bush had authorized in the weeks after the Sept. 11, 2001, terrorist
attacks.
The administration declined to release the documents, which include
Bush's presidential order allowing the wiretaps, as well as the
administration's legal opinions justifying the action. Administration
officials described a particular showdown with key Democratic leaders
-- including Rockefeller and Carl M. Levin (Mich.), chairman of the
Senate Armed Services Committee, in which Democrats proposed a trade
of sorts.
While the exchange was not a quid pro quo, the senators essentially
said, "You give us the documents we want, and we'll give you the
legislation," according to an administration official present, who
said the response was "no." McConnell argued that the Democrats were
"looking backwards" and that he was the "forward-looking guy," a
witness said.
A critical moment for the Democrats came on July 24, when McConnell
met in a closed session with senators from both parties to ask for
urgent approval of a slimmed-down version of his bill. Armed with new
details about terrorist activity and an alarming decline in U.S.
eavesdropping capabilities, he argued that Congress had days, not
weeks, to act.
"Everybody who heard him speak recognized the absolute, compelling
necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the
intelligence panel, said later of the closed session.
Democrats agreed. "At that time, the discussion changed to 'What can
we do to close the gap during the August recess?' " said a senior
Democratic aide who declined to be identified because the meetings
were classified. As delivered by McConnell, the warnings were seen as
fully credible. "He's pushing this because he thinks we're in a high-
threat environment," the senior aide said.
Throughout this period, Republican lawmakers promoted the
administration's version of the bill as a powerful response to the
terrorism threat. Rep. Peter Hoekstra (R-Mich.), a former chairman of
the House intelligence panel, told colleagues, for example, that "this
is about protecting the homeland, and it is about protecting our
troops in Iraq, Afghanistan and Pakistan."
But McConnell consistently sought authority for warrantless
surveillance not only of terrorist suspects outside the country, but
of all foreign intelligence targets. In a letter to Senate leaders on
Aug. 2, he said no such limitation existed when the FISA law was
passed in 1978, "nor is one appropriate today. . . . The Intelligence
Community must be able to gather needed intelligence information on
the array of threats to our national security." A senior
administration official mentioned the North Korean nuclear program as
an example of a threat.
Where the matter became sticky -- and ultimately developed into tense
exchanges between the Democrats and McConnell, with each side later
accusing the other of misrepresenting their conversations -- was on
the question of how to deal with surveillance of communications
between persons outside the country and persons inside the country,
including both U.S. citizens and foreigners.
Democrats were reluctant to give the NSA blanket permission to capture
such data without a warrant unless independent oversight was provided,
either by the court or by the Justice Department's inspector general.
They also worried that providing warrantless authority to spy on
targets other than foreign terrorism suspects would lead to
potentially abusive monitoring of Americans innocently in contact with
foreign targets.
Other provisions in the White House-backed bill added to the
Democrats' discomfort. For instance, a Democratic bill would have
authorized warrantless surveillance "directed" at individuals
reasonably believed to be outside the United States. But the
administration's draft -- and the one passed into law -- permitted
collecting data "concerning" people reasonably believed to be outside
the country. Democrats said the difference between collection efforts
"concerning" foreigners and "directed" at foreigners could be
enormous, allowing intelligence officials far greater leeway.
Partly, it was a matter of Democratic mistrust of the administration,
due to what Senate Majority Leader Harry M. Reid (D-Nev.) called "the
administration's repeated past mismanagement of key tools in the war
on terror."
On July 31, McConnell met with Democratic leaders in an unusual night
session to hash over their concerns. In McConnell's bill, the attorney
general's office would certify that U.S. collection methods were in
line with the law, a procedure Democrats told him they did not trust.
In a series of conference calls, McConnell continued to complain about
a Democratic-backed provision limiting warrantless surveillance to
foreign suspects tied to terrorist groups. Democrats noted that an
earlier, administration-backed measure had included similar language.
"There was a lot of back-and-forth," said a congressional official
familiar with the discussion. Pelosi suggested as a compromise
limiting the authority to "threats to national security." But
McConnell -- whose office was getting e-mails throughout the
negotiations from officials at the Justice Department, the vice
president's office and elsewhere in the intelligence community --
remained firm, and eventually the Democrats relented and presented a
bill that they believed had met McConnell's requirements.
McConnell deemed its fine print unacceptable, however, and in the end,
it was the Republican bill, a near-copy of his proposal, that passed
both chambers of Congress. It drew support not only from most
Republicans but also from 16 Senate Democrats and 41 House Democrats.
Hours after its passage, Pelosi declared portions of the bill
"unacceptable" and forecast changes in the coming months.
.
- References:
- Reported Decline in Surveillance Spurred Quick Law
- From: Jack Linthicum
- Reported Decline in Surveillance Spurred Quick Law
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