Much Still Unknown About Surveillance Efforts

The bill (pdf) introduced by House Democrats yesterday to scale back the Protect America Act represents an effort to reconcile the surveillance powers that Director of National Intelligence Michael McConnell has told Democrats he needs with civil liberties protections for U.S. citizens and residents. But to some degree, the bill is also an attempt to legislate in the dark. That’s because a lot still remains unknown about the extent of surveillance between people inside the U.S. and people overseas.

Most obviously, the administration has refused to turn over documentation of what eavesdropping within the U.S. has occurred outside of the boundaries of the Foreign Intelligence Surveillance Act, and based on what legal reasoning. Before August’s overhaul of FISA, critics contended that understanding the need for a revision was the only responsible basis for new legislation. That clearly failed. As a result, the Protect America Act changed the definition of electronic surveillance, allowing for largely warrant-free interception of communications simply where intelligence officials had reason to believe that one party to the conversation was outside the U.S. and possessed foreign-intelligence information.

Director of National Intelligence Michael McConnell defended the PAA by saying that recent FISA Court rulings — he’s been careful not to specify precisely which one, but it’s believed to be one from roughly March — placed unreasonable restrictions on collecting foreign-to-foreign communications, which have never enjoyed civil-liberties protection, resulting in the loss of needed terrorism-related intelligence. While McConnell’s credibility has come into question, both Democrats and Republicans on the Congressional intelligence and judiciary committees have largely credited the claim, and recent hearings on the PAA haven’t shed much light on precisely what sort of restrictions FISA entails. McConnell’s recent misstatements have not significantly harmed his efforts as an advocate for FISA revision.

Here’s one area of confusion to keep an eye on. During testimony before the House intelligence committee and the Senate and House judiciary committees last month, McConnell repeatedly said that it was impossible to know ahead of time whether the targets of surveillance would call someone within the United States. Therefore, if Congress didn’t want to inadvertently grant Constitutional protections to foreign terrorists, it needed to allow blanket surveillance for “targets” reasonably believed to be overseas, and if information on U.S. citizens was inadvertently collected, NSA would either delete it or get a warrant to follow up on suspicious people here.

But the new bill… “clarifies” to the FISA Court that warrantless foreign-to-foreign intelligence is authorized. How would the intelligence community, or the court, know that ahead of time? The bill doesn’t really explain. We’ll see if the administration accepts the move, challenges it — or, true to form in this debate so far, doesn’t explain.