Or More Accurately, the Bush Administration Outran the Law

Perusing the morning news, I see this op-ed by Mike McConnell, Director of National Intelligence, wherein he calls for changes in FISA to bring it up to date and make it more effective at preventing terrorist attacks:

FISA was created to guard against domestic government abuse and to protect privacy while allowing for appropriate foreign intelligence collection. Technology and threats have changed, but the law remains essentially the same. If we are to improve our ability to protect the country by gathering foreign intelligence, this law must be updated to reflect changes in technology and the ways our adversaries communicate with one another.

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries. We are in this situation because the law simply has not kept pace with technology.

Having just spent a semester becoming intimately familiar with the law of national security, and FISA in particular, I realized that there's something a little fishy about this claim. For one, the law has been updated. Several times since 1978 in fact, and most recently as part of the PATRIOT Act, which included revisions designed specifically to address the threat of terrorism. So what exactly is he asking for? As is often the case, I turn to Glenn Greenwald to parse through McConnell's claims:

In the wake of the 9/11 attacks, the Bush administration demanded a whole slew of changes to FISA which expanded the President's eavesdropping powers and which the administration claimed were necessary in order to bring FISA into the 21st Century by allowing surveillance of modern communication methods.

Yet now, his own Director of National Intelligence, when seeking still further expansions of the government's surveillance powers, goes to the Washington Post and flat-out says that FISA has not been changed since 1978 and has not been updated to reflect technological changes such as cell phones and email. And he uses almost identical language to describe the deficiencies allegedly now burdening FISA that Bush used back in 2001 to identify all the deficiencies which the FISA changes resolved.

In light of McConnell's Op-Ed today, it is also critical to recall that the administration had multiple opportunities since those post-9/11 changes to expand the scope of FISA, and it was the administration which refused those changes on the ground that they were unnecessary.

The administration is not, and never has been, interested in expanding the scope of FISA in order to enable them to obtain warrants more easily or accommodate "new technology." Their overriding goal has been, and plainly continues to be, the total elimination of meaningful oversight with regard to how the government eavesdrops on Americans. That goal of theirs was accomplished for many years by simply breaking the law which requires oversight, and now -- having been caught -- they seek to accomplish the same goal under the guise of wanting "updates" to the "rotary phone era" law.

This interpretation is supported by McConnell's own statement. Parse the language of his example carefully. Armed with some knowledge of what FISA requires, you'll realize that the only reason that FISA requires a warrant in the situation he describes is because the "communications" he references are with American citizens. Most Americans would be highly surprised to learn that a warrant is required to listen to the communications of foreigners overseas, because that's not exactly true. FISA, and the Bill of Rights in general, do not apply to communications between foreigners outside of U.S. territory. We can listen to terrorists and insurgents all day long without a warrant, and we do. Only when they are trying to communicate with American citizens must federal agents observe the warrant requirement of the U.S. Constitution, which cannot be legislated away. So in other words, what McConnell and his superiors want to do is be able to listen to the communications of American citizens without a warrant, or merely on the certification of some conditions that are essentially pro forma and are almost never disputed by the FISA court before it issues a warrant.

Why are they asking for this now? Because, as Greenwald states, it's what they've been doing all along in one fashion or another (details of the NSA surveillance program remain classified, of course.) But they now realize with Democrats in power, and especially with the testimony of Deputy AG James Comey's testimony about the lengths the Bush administration was willing to go to get some "official" stamp of approval of their program (that they didn't get from Ashcroft), they need some sort of legal cover, in the form of an "updated" FISA. Having not carefully thought out what they were doing back in 2001, or anytime since, they now find that they are in the position of having to retroactively cover their asses, so to speak.