How about post-facto FISA review, guys? Interested?
That’s the message from Admiral Michael McConnell, the director of national intelligence. After a week of grueling briefings on Capitol Hill lobbying for an overhaul of the Foreign Intelligence Surveillance Act, McConnell last night released a statement reluctantly endorsing putting terrorist surveillance back under FISA Court supervision — with certain restrictions. The key passage:
However, to acknowledge the interests of all, I could agree to a procedure that provides for court reviewâafter needed collection has begunâof our procedures for gathering foreign intelligence through classified methods directed at foreigners located overseas. While I would strongly prefer not to engage in such a process, I am prepared to take these additional steps to keep the confidence of Members of Congress and the American people that our processes have been subject to court review and approval.
The additional steps he doesn’t list. But this is the first time that McConnell has endorsed putting surveillance “directed at” foreign targets under FISA. Notice those two words: “directed at.” Currently, only technology, not law, limits the National Security Agency from collecting intelligence on foreigners, who don’t have rights under the Constitution. But the agency gets into legal trouble when the foreigners under surveillance communicate with persons in the U.S. — precisely how the President Bush acknowledged the Terrorist Surveillance Program operates. McConnell and the Bush administration have emphasized throughout the entire debate this summer that since foreigners don’t enjoy any privileges under FISA, the FISA Court shouldn’t play a role in surveillance “directed at” foreigners, even if U.S.-based communications are ensnared.
Up until now, McConnell wanted a carve-out under FISA for all such foreign-domestic communications deemed (by the administration) terrorism-related. Now, in a limited fashion, he’s acknowledging that nothing will get passed outside the scope of the FISA Court. Under a temporary fix put forward by Sen. Jay Rockefeller (D-WV), the Bush administration would go to the FISA Court for broad surveillance authority for primarily-foreign targets and have to return after 60 days for probable-cause-based approval to monitor communications from any U.S.-based individual the initial surveillance turned up. McConnell’s statement doesn’t specify at all what kind of court review he’d accept — whether it would be a post-facto blessing, or not (the NSA would have to submit to a FISA warrant to monitor U.S. communications highlighted in primarily-foreign intelligence collection). Resolving that open question is going to be key to whether a FISA compromise gets enacted.