McConnell’s Office Responds to TPMmuckrakerRoss Feinstein, spokesman for Director of National Intelligence Mike McConnell, e-mails this response to TPMmuckraker’s reporting on McConnell’s account of the emergency-warrant controversy for Iraqi insurgents who kidnapped U.S. troops in May.
The point you are missing is that a delay occurred. The Intelligence Community works in a real time environment; seconds do count here. Prior to August 5th, 2007 (the day when the Protect America Act was enacted), using this case, we had to go out and prove probable cause [72 Hour Provision]. We should not have to prove probable cause, and/or obtain a court order for foreign to foreign communications overseas.
In reference to the 72 Hour Provision, one still needs to have probable cause before getting the emergency authorization. Felony penalties can be imposed on those who do not prove probable cause.
The Protect America Act has alleviated this issue. As of August 5th, the Intelligence Community now does not need to go through such a process to conduct surveillance of Iraqi Insurgents, and other foreign to foreign communication overseas that may pass through the United States.
Many individuals have said this is a “common sense case,” – that U.S. soldiers have been taken hostage, and we need to start conducting surveillance on these Iraqi Insurgents, in order to find our soldiers. We agree, it sounds like a “common sense case,” but the law is the law.
But the “point” isn’t that the delay occurred, since the delay isn’t in dispute. The point is why — whether it was because the FISA Court’s ruling demanded it, or whether an elective Bush administration set of protocols forced it. To get at that issue, I posed a few further questions to Feinstein.
Here are my questions, with Feinstein’s answers in blockquotes.
1) Why doesn’t the surveillance occur contemporaneously with the preparation of probable cause? If the NSA’s counsel thought there was sufficient probable cause here to justify an emergency warrant, why didn’t you send the case immediately to [the Justice Department’s Office of Intelligence and Policy Review] for the signature of the Attorney or his proxy, and then write up the [probable cause] justification during the 72 hour grace period? According to everyone I’ve talked to who’s been involved in these situations, that’s exactly how an emergency FISA warrant is supposed to work.
2) Why did it take 4 hours on 5/15 (per the timeline) for administration & IC officials to send the case to OIPR? When the NSA counsel says at 12:53 that the requirements for an emergency warrant have been met for the “remaining collection” that passes through the US, what’s left to debate?
[For the first two questions,] you would need to speak to DoJ about that, but ultimately it is up to the Department of Justice to prove that probable cause exists. Again, the authorization of the emergency FISA is the responsibility of the Department of Justice. The Intelligence Community does its part, but the final determination is left up to DoJ.
Lt. Gen. Burgess stated in the letter “As the Committee is aware, the circumstances of this case presented novel and complicated issues. These issues, which needed to be evaluated before the emergency authorization could be requested, distinguished this situation from a typical case of targeting non-U.S. persons abroad.” This resulted in a delay.
Probable cause had to be proven before the full resources of the Intelligence Community was able to initiate coverage, “…expected to reveal the communications of Iraqi insurgents who had kidnapped U.S. soldiers.”
3) What’s your reaction to those who say, including my sources, that McConnell has mischaracterized this episode as being hamstrung by FISA Court rulings as opposed to the [intelligence community] and the administration’s interpretation that those rulings required the bureaucratic process laid out in the timeline?
Should we be spending time having to go through such a process to intercept foreign to foreign communications?. Even a few seconds is too long of a delay. Why are we giving 4th Amendment protections to Iraqi Insurgents, located overseas, who have taken U.S. soldiers hostage? I wholeheartedly disagree that this was a bureaucratic process that delayed the Intelligence Community. The law was outdated, and led to this delay. The Protect America Act has alleviated those issues.
