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jabarnut
Light Years Away
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| reply to spy1
Re: FISA 'modernization" bill - head's up!
said by spy1  :But don't trouble yourself - I''m totally sick and tired to death of the whole thing and have decided to devote the rest of my life to watching paint dry. Pete That's good to hear Pete....I think you'll be a lot better off in the long run, and much less apt to develop a nagging ulcer. (Just be aware that some paint takes a lot longer to dry than others, and even that can be a bit frustrating at times).
Try not to worry, be happy. 
--
I had a life once.....now I have a Computer and a Modem. | |
jvmorris
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| reply to Just Bob
said by Just Bob :. . . There are some who say the Director went too far in his statements, so this may not be available for long. Get it while it's hot. Well, yes, he did, . . . but probably not quite in the way they intended.
When I finished reading that transcript, the first thing that flashed through my mind was a thought attributed to the Continental Op in Dashiel Hammett's The Golden Horseshoe.
I was reading a sign high on the wall behind the bar:
Only Genuine Pre-War American
and British Whiskeys Served Here
I was trying to count how many lies could be found in those nine words, and had reached four, with promise of more when .... I see they're still on the misdirection kick. Guess I'll have to deconstruct it later today and point out the inconsistencies.
--
Regards,
Joseph V. Morris | |
Just Bob
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Spring Hill, FL | reply to jvmorris
Re: FISA 'modernization" bill - head's up!
I'm looking forward to it. | |
jvmorris
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| reply to jvmorris
Deconstruction #1
Let's start from the transcript published by the El Paso Times at »www.elpasotimes.com/news/ci_6685679 . In response to the first question posed by Chris Roberts, the reporter for the El Paso Times, DNI Mike McConnell says:
... I was pretty surprised at what I learned. First off, the issue was the technology had changed . . . First, I'm perplexed as to what 'technology' had changed since McConnell left the NSA as its Director in 1996. I was on the public internet in 1996 and was, indeed, doing international communications (websites, IRC chat, file transfers, e-mail) at that time. (And I was a relative late-comer.) And, by March 1998, I was routinely doing videoconferencing on public internet facilities -- that includes both voice and video. As a matter of fact, I didn't quit doing a lot of this stuff until late 1999 or early 2000, when I became more concerned with my personal security on the 'net. What revolutionary change in technology supporting the 'net or VoIP or voice communications occurred since that time? I don't know; perhaps some of our telecomms experts would care to chime in here. And, if anyone can, who can tell me how many of these occurred after the last time the FISA Act was modified in 2005(?), prior to the Protect America Act of 2007? I don't think there were any of merit here, since the Administration's program apparently dates back to the end of 2001 and FISA had been modified two or three times already by 2007 when McConnell became DNI.
Could he, perchance, be referring to surveillance technology rather than communications technology? Well, both Echelon and Carnivore far predate 2005, never mind 2007. So, what would be new about surveillance technology? I think this is where the problem lies, as I will discuss later.
... 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. So, ... what's the problem? As of 19 Jan 2004, 50 USC 1801 explicitly says:
As used in this subchapter:
(a) "Foreign power" means -
(1) a foreign government or any component thereof, whether or
not recognized by the United States;
(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such
foreign government or governments;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not substantially
composed of United States persons; or
(6) an entity that is directed and controlled by a foreign
government or governments.
(b) "Agent of a foreign power" means -
(1) any person other than a United States person, who -
(A) acts in the United States as an officer or employee of
a foreign power, or as a member of a foreign power as defined
in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages
in clandestine intelligence activities in the United States
contrary to the interests of the United States, when the
circumstances of such person's presence in the United States
indicate that such person may engage in such activities in
the United States, or when such person knowingly aids or
abets any person in the conduct of such activities or
knowingly conspires with any person to engage in such
activities; or
(2) any person who -
(A) knowingly engages in clandestine intelligence gathering
activities for or on behalf of a foreign power, which
activities involve or may involve a violation of the criminal
statutes of the United States;
(B) pursuant to the direction of an intelligence service or
network of a foreign power, knowingly engages in any other
clandestine intelligence activities for or on behalf of such
foreign power, which activities involve or are about to
involve a violation of the criminal statutes of the United
States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or
fraudulent identity for or on behalf of a foreign power or,
while in the United States, knowingly assumes a false or
fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of
activities described in subparagraph (A), (B), or (C) or
knowingly conspires with any person to engage in activities
described in subparagraph (A), (B), or (C).
(c) "International terrorism" means activities that -
(1) involve violent acts or acts dangerous to human life that
are a violation of the criminal laws of the United States or of
any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or any State;
(2) appear to be intended -
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation
or coercion; or
(C) to affect the conduct of a government by assassination
or kidnapping; and
(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum. (emphasis above added) I don't know about you, but to me, 1801 (a)(4) pretty well defines (and incorporates) groups involved in international terrorism in the scope of the FISA law. Furthermore 1801 (b) (2) pretty much includes everyone (including "US Persons") who may act as the agent of a terrorist organization. (Note the use of or at the end of 1801 (b) (1), not and. And, finally, 1801 (c) does a damn good job of defining what they intended in terms of international terrorism.
(McConnell) ... 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. Again, I don't know about you, but I can't find anything in 50 USC 1801 et seq. that substantiates this assertion by McConnell. I see no distinction between wire and wireless communications, certainly not in the context of USC 50 1802, the current subsection defining the purview of warrantless wiretapping.
In all honesty, McConnell seems to either
a) not have known what was in the existing statute or
b) he was simply misrepresenting it in the course of this interview.
What we will eventually learn is that it was the method that was being used to monitor these communications that the FISA Court ultimately held required a warrant to implement. It's only peripherally connected to the issue of 'wire' versus 'wireless' and McConnell is deliberately obfuscating this in his statements.
Now, I'm deliberately breaking up my analysis of McConnell's statement to the El Paso Times so that we can discuss each part of it separately. I would encourage anyone who wants to respond to what I say above to use the 'reply' button on this post, rather than the 'reply to OP' button at the bottom of the thread. This helps others keep track of exactly what any subsequent respondents are discussing.
--
Regards,
Joseph V. Morris | |
jvmorris
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| reply to jvmorris
Deconstruction #2
Moving on to McConnell's discussion of just what the FISA courts did in the first half of 2007, as he describes it in the interview at »www.elpasotimes.com/news/ci_6685679
(McConnell) 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. We don't know what 'it' was, of course. We have to be careful about referring to 'it' as the "Terrorist Surveillance Program", since AG Gonzales is now maintaining that that was simply 'part' of the intelligence collection activities authorized by President Bush in late 2001, so pardon me if I don't give 'it' a name that it apparently doesn't have.
This 'approval' was apparently granted by the FISC on or about 7 Jan 2007. Based on the Administration's prior briefings to the appropriate members of Congress, I think we can assume it was just about as glib as what MCs received. But, by the time this came up for review and approval in early May, the FISC judge(s) had apparently some doubts about what they'd initially been told to get the program approved.
(McConnell) 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. You're kidding yourself if you don't believe this second judge didn't ask some penetrating questions about the initial presentation and got some answers he didn't like. Sort of like Ashcroft and Comey, I suspect. You all remember Ashcroft and Comey, don't you? Those 'lefty liberals' appointed to DoJ by none other than George W. Bush.
(McConnell) And it came down to, if it's on a wire and it's foreign in a foreign country, you have to have a warrant and so 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. The first part of this statement is total bullshit; McConnell must know it and be hoping that no one will research the statutory law. You don't need a warrant in these circumstances (presuming McConnell's representation of the judge's decision is anywhere near accurate).
But, the really telling part is what he doesn't say next. Note the 'stay' until 31 May. What, exactly, was that? McConnell is extremely vague on this point, but, by 31 May, the Administration either should have appealed the most recent decision by a single FISC judge to either the entire FISC or to the FISC Court of Review. Either they did it (and lost) or they didn't do it, because they knew the second judge's opinion was unassailable and highly unlikely to be overturned.
So, what did the Administration decide to do? They decided to remove this 'program' (whatever you care to call it) from any real supervision under the FISA -- and that's exactly what Sections 105A, 105B, and 105C of S.1927 (the Protect America Act of 2007) do.
Again, I would encourage anyone who wants to respond to what I say above to use the 'reply' button on this post, rather than the 'reply to OP' button at the bottom of the thread. This helps others keep track of exactly what any subsequent respondents are discussing.
--
Regards,
Joseph V. Morris | |
jvmorris
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| Re: Deconstruction #2 -- add 1) FISC Court Decision
One advantage in going through McConnell's transcript slowly is that you consequently note little subtleties in his statements. I'd call these 'dissembling', but that's just me.
Critics of my position can point out, quite rightly, that I'm not privy to the FISC Decisions relevant to the subsequent passage of S.1927. Of course, as I pointed out in my earlier post, »Re: FISA 'modernization" bill - head's up! , neither are the members of Congress who were imposed upon to pass S.1927:
Now, why do I maintain the Court's actual decision is being misrepresented? Well, if it really was as portrayed, it's nonsensical -- there's no such restriction (grounds) even remotely justifiable under the terms of the FISA Act and the FISA Court has never taken it upon itself to make 'new' law. As such, the Administration only needed to appeal to the Court of Review which would have promptly overturned such a hare-brained ruling. To date, I've seen no indication that the Administration even bothered to appeal the decision to the Court of Review. Consequently, I deduce that the grounds for the decision were very well founded and the Administration recognized that the Court of Review would likely uphold the decision of the FISA Court; i.e., the original ruling was apparently far from hare-brained, regardless of how it's since been portrayed. Apparently, persons on the relevant Congressional Committees had similar questions; they asked for a description of the program and for a copy of the Court's ruling in order to better address the problem while revising the FISA Act. (And the FISA Act has already been at least twice amended since 9/11.) "You give us the documents we want, and we'll give you the legislation," the senators said, according to an administration official present, who said the response was "no."
And this, in turn, is why Senator Leahy, Chairman of the Senate Judiciary Committee, is now threatening a Contempt of Congress citation against the Administration, see »jurist.law.pitt.edu/paperchase/2···-for.php .
And, in a completely independent action, the ACLU has now petitioned the FISC to provide records of its own deliberations relevant to S.1927 (as portrayed by the Administration) so that both the Congress and members of the public can evaluate their integrity and validity for themselves: »jurist.law.pitt.edu/paperchase/2···ings.php .
To put it bluntly, no one is taking the Administration's characterization of the FISC rulings as being, in any sense, correct.
--
Regards,
Joseph V. Morris | |
Just Bob
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| said by jvmorris :To put it bluntly, no one is taking the Administration's characterization of the FISC rulings as being, in any sense, correct. And yet Congress passed the bill so they could go on vacation.
It troubles me that the process has become so corrupted, but it troubles me more that Congress is corrupted so cheaply. | |
jvmorris
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| reply to jvmorris
Re: Deconstruction #2 add2) warrants for wire comms?
McConnell's insistence that, for some reason, the Administration suddenly had to get warrants for monitoring communications 'on a wire' of persons outside the US really bothered me, especially his insistence that the rules were different for wire and wireless communications. From Deconstruction #2,
said by jvmorris : ... (McConnell) And it came down to, if it's on a wire and it's foreign in a foreign country, you have to have a warrant and so 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. The first part of this statement is total bullshit; McConnell must know it and be hoping that no one will research the statutory law. You don't need a warrant in these circumstances (presuming McConnell's representation of the judge's decision is anywhere near accurate). In fact, the only reference to wire communications in Title 50, Chapter 36, Subchapter 1, "Electronic Surveillance" can be found in 50 USC 1801 (f): (f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a
particular, known United States person who is in the United
States, if the contents are acquired by intentionally targeting
that United States person, under circumstances in which a
person has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communication
to or from a person in the United States, without the consent
of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those
communications of computer trespassers that would be
permissible under section 2511(2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical,
or other surveillance device of the contents of any radio
communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender
and all intended recipients are located within the United
States; or
(4) the installation or use of an electronic, mechanical, or
other surveillance device in the United States for monitoring
to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes. which makes it quite clear that for purposes of electronic surveillance there is no distinction with regards to electronic surveillance between wire and wireless (radio) communications and in 1801 (l) (l) "Wire communication" means any communication while it is
being carried by a wire, cable, or other like connection
furnished or operated by any person engaged as a common carrier
in providing or operating such facilities for the transmission of
interstate or foreign communications. which simply defines the term 'wire communication'.
There is no distinction whatsoever between wire and wireless communication in 50 USC Chapter 36 Subchapter 1.
Was McConnell simply and blatantly lying when he made this statement? Or was he trying to be a bit devious and referring to another section of 50 USC Chapter 36, without being explicit about it?
You see, there is another reference to wire communications in 50 USC Chapter 36, Subchapter III "PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES" and this does require a warrant. It's in 50 USC 1842 "Pen Registers And Trap And Trace Devices For Foreign Intelligence And International Terrorism Investigations":
(a) Application for authorization or approval
(1) Notwithstanding any other provision of law, the Attorney
General or a designated attorney for the Government may make an
application for an order or an extension of an order authorizing or
approving the installation and use of a pen register or trap and
trace device for any investigation to obtain foreign intelligence
information not concerning a United States person or to protect
against international terrorism or clandestine intelligence
activities, provided that such investigation of a United States
person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution which is being
conducted by the Federal Bureau of Investigation under such
guidelines as the Attorney General approves pursuant to Executive
Order No. 12333, or a successor order.
(2) The authority under paragraph (1) is in addition to the
authority under subchapter I of this chapter to conduct the
electronic surveillance referred to in that paragraph.
(b) Form of application; recipient
Each application under this section shall be in writing under
oath or affirmation to -
(1) a judge of the court established by section 1803(a) of this
title; or
(2) a United States Magistrate Judge under chapter 43 of title
28 who is publicly designated by the Chief Justice of the United
States to have the power to hear applications for and grant
orders approving the installation and use of a pen register or
trap and trace device on behalf of a judge of that court.
(c) Executive approval; contents of application
Each application under this section shall require the approval of
the Attorney General, or a designated attorney for the Government,
and shall include -
(1) the identity of the Federal officer seeking to use the pen
register or trap and trace device covered by the application; and
(2) a certification by the applicant that the information
likely to be obtained is foreign intelligence information not
concerning a United States person or is relevant to an ongoing
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to
the Constitution.
(d) Ex parte judicial order of approval
(1) Upon an application made pursuant to this section, the judge
shall enter an ex parte order as requested, or as modified,
approving the installation and use of a pen register or trap and
trace device if the judge finds that the application satisfies the
requirements of this section.
(2) An order issued under this section -
(A) shall specify -
(i) the identity, if known, of the person who is the subject
of the investigation;
(ii) the identity, if known, of the person to whom is leased
or in whose name is listed the telephone line or other facility
to which the pen register or trap and trace device is to be
attached or applied;
(iii) the attributes of the communications to which the order
applies, such as the number or other identifier, and, if known,
the location of the telephone line or other facility to which
the pen register or trap and trace device is to be attached or
applied and, in the case of a trap and trace device, the
geographic limits of the trap and trace order.(!1)
(B) shall direct that -
(i) upon request of the applicant, the provider of a wire or
electronic communication service, landlord, custodian, or other
person shall furnish any information, facilities, or technical
assistance necessary to accomplish the installation and
operation of the pen register or trap and trace device in such
a manner as will protect its secrecy and produce a minimum
amount of interference with the services that such provider,
landlord, custodian, or other person is providing the person
concerned;
(ii) such provider, landlord, custodian, or other person -
(I) shall not disclose the existence of the investigation
or of the pen register or trap and trace device to any person
unless or until ordered by the court; and
(II) shall maintain, under security procedures approved by
the Attorney General and the Director of Central Intelligence
pursuant to section 1805(b)(2)(C) (!2) of this title, any
records concerning the pen register or trap and trace device
or the aid furnished; and
(iii) the applicant shall compensate such provider, landlord,
custodian, or other person for reasonable expenses incurred by
such provider, landlord, custodian, or other person in
providing such information, facilities, or technical
assistance.
(e) Time limitation
An order issued under this section shall authorize the
installation and use of a pen register or trap and trace device for
a period not to exceed 90 days. Extensions of such an order may be
granted, but only upon an application for an order under this
section and upon the judicial finding required by subsection (d) of
this section. The period of extension shall be for a period not to
exceed 90 days.
(f) Cause of action barred
No cause of action shall lie in any court against any provider of
a wire or electronic communication service, landlord, custodian, or
other person (including any officer, employee, agent, or other
specified person thereof) that furnishes any information,
facilities, or technical assistance under subsection (d) of this
section in accordance with the terms of an order issued under this
section.
(g) Furnishing of results
Unless otherwise ordered by the judge, the results of a pen
register or trap and trace device shall be furnished at reasonable
intervals during regular business hours for the duration of the
order to the authorized Government official or officials. Such actions do require a Court order. I submit that this is the likely basis for the FISC Decision(s) And it is precisely the lack of such Court Order that could have led a FISC Judge to rule the practices involved in this unnamed program to be prohibited. And it's precisely this issue that is being contested in Federal Court in San Francisco at the moment.
--
Regards,
Joseph V. Morris | |
jvmorris
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| reply to Just Bob
Re: Deconstruction #2 -- add 1) FISC Court Decision
said by Just Bob :said by jvmorris :To put it bluntly, no one is taking the Administration's characterization of the FISC rulings as being, in any sense, correct. And yet Congress passed the bill so they could go on vacation. It troubles me that the process has become so corrupted, but it troubles me more that Congress is corrupted so cheaply. In all honesty, Bob, I suspect that is is very difficult, even today and after Iraq, for most Representatives and Senators to even consider the possibility that the Bush Administration is deliberately misrepresenting a situation in order to get legislation. But that's what's happening.
--
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Joseph V. Morris | |
jvmorris
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1 edit | reply to jvmorris
Deconstruction #3
Going back to »www.elpasotimes.com/news/ci_6685679,
Q: (Roberts) Can't you get the warrant after the fact?
A: (McConnell) The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven't done that in wireless for years. As noted above, this is total nonsense; there never was, nor is there now a statutory requirement for a warrant for this sort of surveillance under 50 USC Chapter 36 Subchapter 1. The only thing that McConnell could conceivably be referring to is 50 USC 1842 (unless he is deliberately lying), something that he is, rather obviously, reluctant to admit.
--
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Joseph V. Morris | |
jvmorris
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Deconstruction #4
And, again, from »www.elpasotimes.com/news/ci_6685679 ,
Q: So you end up with people tied up doing paperwork?
A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you've got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We're going backwards, we couldn't keep up. So the issue was ... Wait a minute; just wait a minute. . . What the hell is this? It's reminiscent of John Aschcroft's statement back when he was Attorney General that applying for a FISA Court Order took too much time. And that got challenged by his predecessors who (somehow) had never had this problem. As the situation evolved, it turned out that Ashcroft (as AG) had instituted procedures internal to the DoJ that precipitated the requirement for an unnecessarily long time to prepare a request for a FISA warrant. And, apparently, this was done expressly to create a situation in which applying for a FISA Court order took too long. So, Ashcroft wanted to work in a manner in which he didn't need to apply for a FISA order. Nice try, but it didn't work.
But, is that what McConnell is referring to? Maybe yes, maybe no ... but 200 person-hours? That's five person weeks! What in hell has now happened?
If this is not a complete misrepresentation of the effort required to apply for a FISA Court Order, something very drastic must have happened. Could it, just possibly, be that -- once again -- the Court got upset with shabby or misrepresented justifications for it to issue Orders and tightened up its requirements? If so, the problem lies with the Administration, not the Court.
--
Regards,
Joseph V. Morris | |
spy1
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| reply to jabarnut
Re: FISA 'modernization" bill - head's up!
And, of course, McConnell (you know, the guy who's going to keep the Attorney General straight) lies through his teeth, too:
»www.msnbc.msn.com/id/20749773/site/newsweek/
"Spy Master Admits Error
Intel czar Mike McConnell told Congress a new law helped bring down a terror plot. The facts say otherwise.
Sept. 12, 2007 - In a new embarrassment for the Bush administration's top spymaster, Director of National Intelligence Mike McConnell is withdrawing an assertion he made to Congress this week that a recently passed electronic-surveillance law helped U.S. authorities foil a major terror plot in Germany.
The temporary measure, signed into law by President Bush on Aug. 5, gave the U.S. intelligence community broad new powers to eavesdrop on telephone and e-mail communications overseas without seeking warrants from the surveillance court. The law expires in six months and is expected to be the subject of intense debate in the months ahead. On Monday, McConnell—questioned by Sen. Joe Lieberman—claimed the law, intended to remedy what the White House said was an intelligence gap, had helped to “facilitate” the arrest of three suspects believed to be planning massive car bombings against American targets in Germany. Other U.S. intelligence-community officials questioned the accuracy of McConnell's testimony and urged his office to correct it. Four intelligence-community officials, who asked for anonymity discussing sensitive material, said the new law, dubbed the "Protect America Act,” played little if any role in the unraveling of the German plot. The U.S. military initially provided information that helped the Germans uncover the plot. But that exchange of information took place months before the new “Protect America” law was passed.
After questions about his testimony were raised, McConnell called Lieberman to clarify his statements to the Senate Committee on Homeland Security and Governmental Affairs, an official said. (A spokeswoman for Lieberman confirmed that McConnell called the senator Tuesday but could not immediately confirm what they spoke about.) Late Wednesday afternoon, McConnell issued a statement acknowledging that "information contributing to the recent arrests [in Germany] was not collected under authorities provided by the 'Protect America Act'."
The developments were cited by Democratic critics on Capitol Hill as the latest example of the Bush administration's exaggerated claims—and contradictory statements—about ultrasecret surveillance activities. In the face of such complaints, the administration has consistently resisted any public disclosure about the details of the surveillance activities—even though McConnell himself has openly talked about some aspects of them.
The Justice Department, for example, just two weeks ago filed a brief opposing the public release of secret legal opinions about the program—even in redacted form—on the grounds that any disclosure beyond a one-sentence comment earlier this year by Attorney General Alberto Gonzales would “cause serious damage to the national security of the United States.” (The existence of one of those rulings was first disclosed by NEWSWEEK this summer and publicly confirmed by McConnell in an interview with the El Paso Times in August. The ACLU last month filed an unprecedented motion with the Foreign Intelligence Surveillance Court seeking public release of its rulings about the surveillance program.)
The flap over McConnell’s latest statements is especially sensitive because many Democrats have said they felt the White House and the director of national intelligence stampeded them into passing the new surveillance law—claiming it was needed on an “emergency” basis to protect the country against a future terror attack. Speaking Wednesday at a meeting of the Council on Foreign Relations in Washington, Rep. Jane Harman, who was ranking Democrat on the House Intelligence Committee until she was bumped from the committee earlier this year, charged that McConnell had politicized negotiations over the bill. He "appeared to be taking orders from the White House, negotiating for the White House," said Harman. The role he played, "whether he intended it or not, appeared to be political," she said. "Hey—Jane to Mike," she said, "don't become a political actor."
McConnell's testimony that the new law helped in the German case was especially striking—since it seemed to contradict public statements by American and German officials about how the plot was exposed. About 10 months ago—long before the new law was put into effect—guards at a U.S. military base near Frankfurt noted a suspicious individual conducting surveillance outside the facility. U.S. military officials tipped off German authorities, who quickly identified the individual and several accomplices as militants affiliated with the Islamic Jihad Union, a violent Al Qaeda-linked group. The Germans kept the group under surveillance for months and discovered evidence that the militants—some of whom had been to an Islamic Jihad Union training camp in Pakistan—were assembling chemicals for bombing attacks on American military installations in Germany. (The U.S. Embassy in Berlin issued a public warning last April that it had received intelligence reporting about threats against U.S. personnel in that country.) One U.S. intelligence official described the law-enforcement operation as a case of "good old-fashioned police work."
Yet when McConnell testified before the Senate Governmental Affairs Committee, he cited the German case as an example of how the new Protect America Act was working. The law, he started to say, "allowed us to see and understand all the connections with ..." At that point, Lieberman, the committee chair, interrupted McConnell. Lieberman expressed surprise that the law might have contributed to the German counterterror operation. "The newly adopted law facilitated that during August?" he asked.
"Yes, sir, it did," McConnell responded. “The connections to Al Qaeda, the connections specifically to what's referred to as IJU, the Islamic Jihad Union, an affiliate of Al Qaeda. Because we could understand it, we could help our partners through a long process of monitoring and observation. And so at the right time, when Americans and German facilities were being targeted, the German authorities decided to move."
Counterterrorism officials familiar with the background of McConnell's testimony said they did not believe the intel czar made inaccurate statements intentionally as part of any strategy by the administration to goad Congress into making the new eavesdropping law permanent. Officials said they believed McConnell gave the wrong answer because he was overwhelmed with information and merely mixed up his facts. Nonetheless, some officials said, as news of McConnell's misstatements spread, it would be in the intelligence director's best interests to correct his testimony—advice he is now heeding."
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You'd really think we would wise up (not to mention our legislators', who approved this latest abortion). Pete | |
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