McConnell Tells More About Iraqi-Insurgent Wiretapping Episode

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On Tuesday, Admiral McConnell, director of national intelligence, told the House Judiciary Committee that a FISA Court ruling earlier this year prevented the NSA from eavesdropping on Iraqi insurgents who had captured U.S. soldiers. At least one FISA expert we spoke with found the claim “totally implausible.” Today, McConnell offered some details about the incident to the House Permanent Select Committee on Intelligence in response to a question from ranking Republican Peter Hoekstra.

Well, sir, I have to be a little careful because of sources and method issues. But the situation was, as you know, because global communications move on wire, you can have a situation where information would pass on a wire through this country. So for us to specifically target the individuals that were involved in that kidnap, we had to go through a court order process.

Now, when we’ve talked about this before, people frequently say, “Well, wait a minute. Why don’t you just do emergency FISA?” Well, that is the point. We are extending Fourth Amendment rights to a terrorist foreigner foreign country who’s captured U.S. soldiers. And we’re now going through a process to produce probable cause that we would have authority to go after these terrorists.

And then people say, “Well, why don’t you just go? You got emergency authorization.” Well, emergency authorization doesn’t mean you don’t go through the process, which is probable cause. So some analyst has got to do it and some official’s got to sign it out. And it has to come to either me or some other official. Then it goes to the attorney general. Then it goes to FISA court.

Chairman Silvestre Reyes (D-TX) wasn’t buying it.

REYES: I thank the ranking member.

Just to be clear, on this particular case that you mentioned, the emergency provisions — and we’ve had testimony to this effect — kick in, so you can start monitoring immediately.

MCCONNELL: Yes, sir…

REYES: And then you evaluate whether or not, within those 72 hours you’re going to need to take it to FISA.

MCCONNELL: I didn’t make myself clear. I’m sorry, I’m failing here.

Here’s my point. Emergency provisions still have to meet a probably cause standard. So I can have an emergency provision. I still have to go through the process of probable cause, get people to certify and take it to a court.

My argument is it’s a foreigner, foreign country, shouldn’t be worried about emergency process or probable cause. It’s a foreigner in a foreign country, that’s our mission. We should be doing that without involving the court. That’s the point I’m trying to highlight.

REYES: OK. I understood your point, but I just wanted to make sure we were clear, so that the American people don’t misunderstand that everything wasn’t done as quickly as possible.

MCCONNELL: Sir, could we have gone faster? No question. I’m sure we’ve gone faster on the edges. But now, on this, I want to make sure the American people clearly understand this: going fast does not take away the fact it still has to meet a court standard. So the issue is, we’re meeting a probable cause standard that still has to be reviewed by a court.

And my argument is, that’s the wrong way to do this. We shouldn’t be even going down that path.

Ultimately, McConnell told Rep. Heather Wilson (R-NM) that the procedures in place as the result of the FISA Court ruling kept the insurgents from being surveilled for 12 hours. Yet on Tuesday, the panel heard testimony from former Justice Department FISA chief James A. Baker that obtaining a FISA warrant — let alone exercising FISA’s 72-hour emergency provision for after-the-fact approval — is a rapid process. Reyes called the 12-hour lag in surveillance a “failure” of bureaucracy. McConnell attempted to underscore the point that he shouldn’t have had to go to the FISA Court under any circumstance — before the fact or after.

More on this tomorrow.

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