Yesterday, the director of national intelligence, Admiral Michael McConnell, casually informed
the House Judiciary Committee that the FISA Court had gotten so restrictive that its rulings required the NSA to obtain warrants before spying on Iraqi insurgents that had kidnapped U.S. troops.
That sounded dubious to us. Would the FISA Court have really issued such a patently absurd ruling? And it turns out we're not the only ones. FISA expert Kate Martin of the Center for National Security Studies also finds McConnell's statement dubious.
"It's totally implausible, like the claim about the arrests in Germany.
Doesn't NSA have collection capabilities in Iraq? If so, they are totally outside FISA," Martin says. "Even if they're taking the Iraqi insurgent calls off the wire in the U.S. talking to each other, they don't need a court order and no court is going to bar them. Or is it that the NSA is so incompetent that it doesn't know they are Iraqi insurgents talking to each other and they were just blindly searching all traffic, which the court said they weren't allowed to do?"
We asked Ross Feinstein, McConnell's spokesman, to elaborate on his testimony. Feinstein declined, but indicated that McConnell stands by it.
Martin finds another problem with McConnell's testimony: it represents "selective disclosure of classified information to make a political point, in a way that can only be calculated to mislead, rather than inform."
Yesterday, McConnell asserted that President Bush had delegated him the authority to declassify information as he sees fit, thereby protecting himself from charges that he improperly disclosed information to the El Paso Times last month about the Bush administration's surveillance programs. Martin thinks that McConnell has disclosed that the NSA was surveilling the Iraqi insurgency, something she thinks should have remained classified. But now that the cat's out of the bag, she says, "they need to release the court opinions and legal arguments by DOJ" about the court's alleged rulings compelling the warrant on the insurgents.