The administration's FISA falsehoods continue unabated

The Washington Post Op-Ed by the national intelligence director rests on a patently false claim.

Published May 21, 2007 11:40AM (EDT)

Mike McConnell, the Bush administration's Director of National Intelligence, has a remarkably dishonest Op-Ed in The Washington Post this morning, in which he argues for completely unspecified "updates" and "changes" to FISA in order to expand -- yet again -- the Government's powers of eavesdropping on Americans. McConnell's entire argument for expansion of surveillance powers rests on a patent falsehood.

In paragraph after paragraph, McConnell claims that FISA -- which was first enacted in 1978 but amended multiple times since then -- is an obsolete law because it was from an era where "the first cellular mobile phone system was still being tested" and "a personal computer's memory had just been expanded to 16 kilobytes." He then affirmatively (and falsely) states, several times, that FISA is unchanged since 1978 and thus does not recognize new communications technology such as e-mail and cell phones:

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. . . .

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.

The failure to update this law comes at an increasingly steep price. . . .Because the law has not been changed to reflect technological advancements, we are missing potentially valuable intelligence needed to protect America. . . .Bringing FISA into the 21st century is one such improvement that can and should be made now.

Many of these statements are highly misleading, as they strongly imply that FISA has not been amended since it was first enacted 30 years ago. But several of the statements -- such as: "the law has not been changed to reflect technological advancements" -- are just flat-out lies.

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. Congress, needless to say, complied in full, and in October of 2001 -- contrary to McConnell's misleading Op-Ed -- it enacted, and the President signed, sweeping "modernizing" changes to FISA. Compare what the President said at the signing ceremony back in October 2001 to McConnell's Op-Ed:

The changes, effective today, will help counter a threat like no other our Nation has ever faced. . . .

We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. . .

In his radio address the following week, this is what the President said about the changes to FISA:

The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.

When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations -- and also to detect them before they strike. . . .

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

George Bush justified the sweeping expansion of FISA back in October of 2001 by insisting that the changes allowed full-scale surveillance of all modern means of communications -- including email and cell phones.

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.

The idea that FISA is some sort of obsolete relic from the rotary phone era that has never been updated has become pervasive even among well-informed commentators (Kevin Drum, for instance, yesterday said, incorrectly: "George Bush can recommend legislation to modify FISA anytime he wants. In the six years since 9/11 he hasn't done so . . .I'm willing to consider changes to FISA. McConnell is right that it's three decades old and could use an update to address changes in technology").

That FISA was substantially expanded in October of 2001 -- at the administration's request -- is one of the central (and often overlooked) facts illustrating how severe is the corruption and dishonesty which lies (still) at the heart of the NSA lawbreaking scandal.

The same President who demanded changes to FISA in light of the terrorist threat, who received all the changes he demanded, and who then assured the nation he had all the surveillance tools he needed under the law, then proceeded -- the very same month -- to eavesdrop on Americans in violation of that law. Then, once caught, he sought to excuse his lawbreaking by claiming that the law (which his own administration re-wrote and heralded as sufficient) was somehow inadequate.

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. In 2002, multiple Senators sought to make it easier to obtain FISA warrants, and the Bush administration opposed those changes, insisting that it already had sufficient eavesdropping powers. And all throughout last year, Senators such as Diane Feinstein and Arlen Specter proposed endless FISA amendments to expand the scope of government eavesdropping (in response to claims that FISA was too narrow), and the Bush administration was completely uninterested in all of them.

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 is why their statements are so contradictory and their actions on this issue make no sense. The allegedly obsolete nature of FISA is merely the pretext for gutting its core oversight requirements. That is what McConnell means when he says: "Technology and threats have changed, but the law remains essentially the same."

The "essence" of FISA is that we do not trust our government to eavesdrop on us without judicial oversight, due to the decades of abuse of that power by every administration which -- prior to FISA -- wielded it in secret. The only changes to FISA in which the administration has any interest are changes to the "essence" of FISA -- not changes to accommodate updated technology, but changes to eliminate any real limits on what they can do.

Alarmingly, McConnell writes: "I am encouraged that in my discussions with members of Congress, and in congressional hearings on this subject over the past year, there is recognition of the need to improve our intelligence efforts and close critical gaps created by changes in technology." And there have been rumblings that Congressional Democrats are receptive to expanding FISA to accommodate the administration.

But any such changes at this point would be unconscionable. The administration still claims that it has the right to violate FISA any time it wishes. And the scope and extent of its past (and possibly current) violations are still completely unknown.

And beyond McConnell's plainly false Op-Ed, the lies told by the Bush administration on the issue of eavesdropping have no equal. In light of the revelations from James Comey, just re-visit the statements from Alberto Gonzales in December 2005 -- five days before the New York Times revealed the warrantless eavesdropping program -- in which he assured his audience: "All wiretaps must be authorized by a federal judge." That is the same Alberto Gonzales who barged into John Ashcroft's hospital room to coerce his consent to their ongoing warrantless eavesdropping activities.

Worse, the President himself -- literally one month after the dispute with Comey and Ashcroft over warrantless eavesdropping -- one month -- ran around the country as part of his re-election campaign insisting that the only eavesdropping done by the government was one done with warrants:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

The same President who ordered warrantless eavesdropping -- and who almost had the entire top level of the DOJ resign as a result -- told Americans weeks later that the Government only eavesdrops with warrants. To call that "lying" is to understate the case. It really is to our great discredit that we have acquiesced to this level of presidential deceit.

McConnell's Op-Ed demonstrates that this level of deceit with regard to eavesdropping continues unabated. The notion that the administration would demand, and that Congress would entertain, further expansions of FISA under these circumstances is just staggering.

It is theoretically possible that there are modifications to the FISA warrant process that are justifiable, but the administration has left no doubt that this is not their true objective. And the very last thing that ought to be considered is vesting further eavesdropping power in an administration that still insists there are no valid limits on its eavesdropping powers, particularly until we have learned how they exercised those surveillance powers when they were used, for years, in secret and in violation of the law.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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