Today’s Must Read

As we reported yesterday, Admiral Michael McConnell, the head of the U.S. intelligence community, goes before the House Judiciary Committee today to defend the August revision of the Foreign Intelligence Surveillance Act. But he’s also seeking to salvage his reputation as a straight shooter following a recent fusillade of inflammatory and false comments about the new law, known as the Protect America Act. Since the law, which Democrats mistrust, largely allows domestic-to-international surveillance to proceed on McConnell’s say-so, restoring trust is imperative for him — lest Congressional Democrats, as they’ve promised, scale the law back.

Unsurprisingly, then, here’s how he begins his opening statement to the committee:

I have not appeared before this Committee previously as a witness, and so I would like to take a moment to introduce myself to you. I am a career intelligence professional. I spent the majority of my career as a Naval Intelligence Officer. During the periods of Desert Shield and Desert Storm, as well as during the dissolution of the Soviet Union, I served as the primary Intelligence Officer for the Chairman of the Joint Chiefs of Staff and the Secretary of Defense. I then had the privilege of serving as the Director of the National Security Agency (NSA) from 1992 to 1996, under President Clinton. In 1996, I retired from the U.S. Navy after 29 years of service – 26 of those years spent as a career Intelligence Officer. I then turned to the private sector as a consultant, where for ten years I worked to help the government achieve better results on a number of matters, including those concerning intelligence and national security. I have been in my current capacity as the nation’s second Director of National Intelligence (DNI) since February 2007.

See, fellas? I’m not a hack! In fact, if anything, I’m a Clintonista! Can I keep my new surveillance powers now?

Maybe not. It might have helped if McConnell addressed any of the questions posed by Chairman John Conyers in a letter last week about his recent gaffes, but he punts on those in his prepared testimony.

Nor does McConnell do himself any favors when he actually discusses the act. His chief rhetorical move is to conflate FISA with the Protect America Act (PAA), which significantly weakened FISA’s oversight and civil-liberties requirements. All of a sudden, the PAA is commensurate with FISA’s “important legacy of protecting the rights of Americans.”

However, before the Protect America Act, surveillance of communications between foreigners and people within the U.S. required a judicial warrant that met a probable-cause standard. Now, as long as such surveillance is “reasonably believed” — by McConnell and the attorney general — to be “directed at” persons outside the country who possess “foreign intelligence information,” the FISA Court is legally obliged to approve the surveillance. If a U.S. citizen is caught up in that surveillance, so be it. So long, probable cause! And so long, judicial review. McConnell repeatedly praises FISA’s probable-cause standard — its balance between liberty and security is “elegant,” for instance — only to fall completely silent on probable cause when discussing the Protect America Act’s revisions.

McConnell also digs in his heels on changing the PAA. While he correctly says there’s “substantial, bipartisan support” for amending FISA to ensure that no foreign-to-foreign communications require court approval — the narrow fix that the Bush administration cited without Democratic objection as the need to amend FISA — he laments that many of the proposed alternatives “would not be viable.” McConnell claims two primary reasons:

First, it would not unburden us from obtaining Court approval for communications obtained from foreign intelligence targets abroad. This is because an analyst cannot know, in many cases, prior to requesting legal authority to target a particular foreign intelligence target abroad, with whom that person will communicate. This is not a matter of legality, or even solely of technology, but merely of common sense. If the statute were amended to carve out communications between foreigners from requiring Court approval, the IC would still, in many cases and in an abundance of caution, have to seek a Court order anyway, because an analyst would not be able to demonstrate, with certainty, that the communications that would be collected would be exclusively between persons located outside the United States.

Second, one of the most important and useful pieces of intelligence we could obtain is a communication from a foreign terrorist outside the United States to a previously unknown “sleeper” or coconspirator inside the United States. Therefore, we need to have agility, speed and focus in collecting the communications of foreign intelligence targets outside the
United States who may communicate with a “sleeper” or coconspirator who is inside the United States.

Watch these two reasons become the heart of McConnell’s testimony — and his negotiating position on rolling back the PAA. If Congress can’t come up with something that can satisfy the need to uncover terrorist sleeper cells in the U.S., then the PAA stays until the end of the Bush administration at least.

There’s one other major point McConnell makes in his opening statement. Targeting a U.S. person through the PAA’s relaxed provisions for directing surveillance on someone reasonably believed to be overseas — say, the U.S. person on the other end of the phone call or e-mail — is “unlawful.” But he doesn’t cite any need to change the PAA to ensure it can’t happen, effectively asking Congress to trust him. Whether the House Judiciary Committee has any trust left in McConnell should be clearer by this afternoon.