Earlier this week, National Intelligence Director Mike McConnell gave a lengthy and somewhat duplicitous interview with the El Paso Times. Mr. McConnell made available a number of interesting assertions and revelations. For instance, this is the first time a government official acknowledged that private firms (such as AT&T and Verizon) had been aiding the intelligence establishment. The involvement of these firms had remained a secret until now. This confirmation will surely allow the EFF lawsuit against AT&T to continue. But McConnell also made some pretty odd assertions. In order to justify the government’s need to exempt eavesdropping from court reviews and the warrant process, the NID asserts that the 4th amendment just generates too much paperwork:
And now you’ve got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number.
As Ryan Singel has pointed out, based upon available figures from 2006 in which 2176 FISA warrants were approved, this means the NSA spent 436,200 hours on FISA warrants last year — an incredible number — around 53,275 workdays. This means the NSA employs one of the largest army of lawyers in country or Mr. McConnell is simply exaggerating to make his case more plausible. As it would be unthinkable to believe that our government would ever ever make up facts to justify its actions, I recommend all law students begin to flood the NSA with their resumes.
Throughout the interview McConnell stresses that foreign intelligence gathering should be unfettered by laws. Here, he’s essentially stating what both policy and law have reflected for nearly 50 years. FISA was never meant to apply to foreign surveillance – the original laws specifically exempts gathering on foreign soil. We are led to believe that a recent court ruling stated that a warrant was required if a called passed through American facilities, but not terminated in this country, and the law needed ‘updating’ due to this ruling. But McConnell’s duplicity seems to know no bounds. The law passed allows surveillance on American soil, against Americans, for any reason as long as he and the Mr. Gonzoles believe one of the parties is outside the country. By reiterating the need for foreign intelligence gathering, McConnell tries to give the impression that somehow American’s are exempt from warrantless surveillance. He even suggests that he insisted upon it:
[in the FISA update] I was after three points, no warrant for a foreigner overseas, a foreign intelligence target located overseas, liability protection for the private sector and the third point was we must be required to have a warrant for surveillance against a U.S. person. And when I say U.S. person I want to make sure you capture what that means. That does not mean citizen. That means a foreigner, who is here, we still have to have a warrant because he’s here . . .
McConnell tries to spin himself and the intelligence community as simply professional and law abiding. But given what we know about the previous year’s Terrorists Surveillance Program, we know this is not the case. What we know of the program strongly indicates that it was carried out in violation of FISA and several other federal laws. During that time little effort was made to modify FISA or share information about the program. It would appear that FISA didn’t need ‘updating’ until TSP became public. In other words, McConnell is saying now that you know about our illegal activities, we need to make them legal so those pesky courts can’t annoy us.
McConnell then goes on to employ the greatest trope used used by the security state:
The fact we’re doing it [discussing surveillance] this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.
Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?
A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing.
Yes, for some reason, it’s a democratic process – damm founding fathers, and their checks and balances.
This is without a doubt the most absurd argument put forth by this administration in the entire surveillance state debate. The “I could tell you, but then I’d have to kill you” message is designed to stop all critical inquiry into our government’s actions. It is intimidation through hyperbole. The argument suggests that our intelligence community is either 1) greatly under estimating their adversaries, 2) engaging in acts which would be abhorrent to the people they are serving, or 3) both.
Around the world, America is viewed as a technological powerhouse. We have the largest and most sophisticated intelligence gathering operations in the world. Anyone who has ever reviewed the basics of American surveillance during the Cold War would come away inspired by American ingenuity and technology. Yet, this administration suggests that the same terrorists which they claim have a vast global well organized network would not think that America was eavesdropping on their phone calls? Do they really believe that these terrorists networks are unfamiliar with the basics of guerrilla warfare? The premise of which states that a weaker force should always use their opponents strengths against them — for instance, an opponent with vast electronic eavesdropping capabilities may be overwhelmed by false intelligence planted electronically. If we are to believe the ‘wiretapping is too secret to talk about’ argument, then we are to believe that our own intelligence community is comprised of unimaginative dunces spending all their time filling out warrant requests and scrutinizing every utterance as a real threat against America. If this is the case no amount of secrecy will prevent attacks against this country. It is far more likely that the intelligence community requires such secrecy because it is engaged in acts which violate the law and founding principles of this country. It is more likely that this administration is more interested in surveilling political opponents at home then they are eavesdropping on threats abroad. It it more likely that the intelligence community is building a national surveillance state rather then protecting the laws they were sworn to enforce.
Mr. McConnell was absolutely correct about about one thing, “sunshine is a good thing”, but dawn remains far off for the moment.
