Get the day’s best political analysis, news and reporting from the TPM team delivered to your inbox every day. In 30-60 seconds, you’ll be first to see TPM’s best stories of the morning and caught up on what to expect for the day ahead.
FISA Court Required Warrants For Spying on Iraqi Insurgents?
Spencer Ackerman –
Here's something unexpected. During the hearing, Rep. Zoe Lofgren (D-CA) asked to see the FISA Court rulings from earlier this year, in closed session, that McConnell and Wainstein and others have said required a probable-cause based warrant for purely foreign-to-foreign communications, prompting the August revision to FISA. McConnell's lawyer, Benjamin Powell, said that as the rulings compounded this year, the intelligence community found itself "in a place" where more and more foreign communications became covered by FISA, contrary to the original language and intent of the act.
Then McConnell dropped a bombshell: the rulings required the NSA to get a warrant before listening in on the communications of Iraqi insurgents who kidnapped U.S. soldiers.
The ACLU has filed motions with the FISA Court to obtain those rulings. If the court ultimately rules in the ACLU's favor, we'll be able to see whether this extreme claim -- it's safe to say no one thinks the NSA needs warrants to conduct surveillance on Iraqi insurgent communications -- is based on an explicit order of the Court or on a lawyer's interpretation of a FISA Court ruling. Or, for that matter, whether McConnell has, again, said something about surveillance that just isn't true.
Update: Responding to our request to elaborate on McConnell's comments, his spokesman Ross Feinstein replies:
I am not going to expand on what [McConnell] said in the HJC hearing. However, I will add, that before the Protect America Act, the [intelligence community] was missing vital intelligence - intelligence gaps. That was the reason we proposed legislation to modernize FISA - in April '07.