Mike McConnell's clear explanation of FISA

Bush's DNI inadvertently highlights how clear and undeniable the administration's lawbreaking has always been.

Published August 23, 2007 1:08PM (EDT)

(updated below - updated again)

Director of National Intelligence Mike McConnell yesterday gave a strange and rambling interview concerning the new FISA amendments, and several commentators -- including Spencer Ackerman, Digby and Jeralyn Merritt -- have discussed various oddities in what he said. I want to focus on a different, and I think highly revealing, aspect of his remarks.

Unintentionally, McConnell articulated what is an unusually clear and straightforward explanation as to the state of federal law regarding eavesdropping on Americans by our government -- unusually clear particularly for a Bush official, but even in general. McConnell explained:

The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required.

That is exactly what happened, and the NSA scandal has always been, and always will be, this simple and crystal clear. In 1978, the American people responded to the discovery of decades-long abuses of secret eavesdropping powers by making it a felony for any government official to eavesdrop on Americans without a warrant. What McConnell describes an "arrangement worked out between the Congress and the administration" is what most people call a "federal law," but McConnell's basic point -- that "we did not want to allow th[e intelligence] community to conduct surveillance . . . of Americans . . . unless you had a warrant, so that was required" -- is exactly correct.

But in 2001, George Bush ordered the NSA to eavesdrop on Americans in violation of that very law, and continued to do so for the next five years at least. Bush ordered the NSA to commit felonies; we know that he did so; and nothing has happened. It is and always has been as clear as it is extraordinary.

Equally extraordinary is McConnell's admission -- which marks, I believe, the first time this has been acknowledged -- that private telecommunications companies enabled this lawbreaking by giving the administration access to the conversations of Americans with no warrants:

Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued.

McConnell went on to explain that the number one priority for the administration regarding FISA now is to demand that Congress make further FISA revisions by providing retroactive immunity to the telecom companies to ensure that there are no consequences from their breaking of the law:

Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . .

The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We've got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was alright, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past. So what I recommended to the administration is, 'Let's take that off the table for now and take it up when Congress reconvenes in September.' . . . No, the retroactive liability protection has got to be addressed.

Think about how amazing this is. McConnell clearly described that in 1978, we enacted a law prohibiting warrantless eavesdropping; the Bush administration broke that law repeatedly; and the telecommunications companies actively participated in that lawbreaking. And now -- as a matter of national security -- the Bush administration is demanding that Congress pass a new law declaring that telecom companies are immune from any and all consequences -- both civil and criminal -- in the event they are found to have violated the law. It is hard to imagine open contempt for the rule of law being expressed more explicitly than this.

What possible reason is there to protect anyone -- including telecom companies -- with a special law enacted to declare that they are relieved of all accountability for illegal behavior? And the premise of this argument is even more dangerous than the conclusion: it is all premised on the claim that these companies were only acting at the behest of George Bush, and therefore were entitled, even obligated, to do what they did. In other words, the President has the power to order private actors to break the law and when those orders are obeyed, the private actors are immune from the consequences of their lawbreaking, because they acted at the Leader's behest.

That government officials like McConnell feel so comfortable openly admitting that the government broke the law, obtaining amendments to legalize that behavior after the fact, and then demanding immunity for the lawbreakers, demonstrates how severely the rule of law has been eroded over the last six years. It is not hyperbole to say that government lawbreaking has become formally legitimized.

So much of this is due to the profound failure of the media and our various "experts" simply to state the basic facts here -- that it is a felony to eavesdrop on Americans without warrants and yet that is what the Bush administration did. Instead, we have self-proclaimed "experts" like the Brookings Institutions' Benjamin Wittes trying to show how smart and thoughtful and knowledgeable he is (and explicitly describing himself this way) by writing in The New Republic articles claiming that these matters are far too complicated for even the most thoughtful experts (like him) to understand, let alone the hordes of simpletons acting as though they know Bush did anything wrong here by breaking the law.

Bush-defending Beltway elites have continuously clouded what is a clear issue of lawbreaking by engaging in all sorts of ill-informed "hand-wringing" and obfuscation masquerading as angst-ridden, Serious deliberation. Hence, as always, we have had two types of opinions dominating our mainstream discourse on the issue of patently illegal eavesdropping: (1) hard-core absolute Bush apologists, and (2) those whose overriding goal is to demonstrate how reasonable and thoughtful and Serious they are by stressing how important it is to fight The Terrorists and how complex and serious and terribly difficult and therefore murky these issues are. Mike McConnell therefore knows that he can expressly admit lawbreaking and demand immunity for it because there will never be any clear voices condemning it.

In the wake of the debacle of the Democrats' FISA capitulation, many angry Bush critics have focused on the 6-month sunset provision in order to hope that Democrats will allow this law to lapse. That will never happen. Why would it? The administration will simply use the same Terrorist fear-mongering rhetoric and Democrats will respond in exactly the same way. Why would anyone think it will be any different in six months?

The real open issue is not whether the Democratic Congress will un-do the damage they have done. The issue, as McConnell makes clear, is whether the Congress will submit to still further administration demands by granting retroactive immunity to all lawbreakers (governmental and private lawbreakers alike). That is plainly what the administration is after, and it is hard to have much hope that they will be denied what they seek.

McConnell's comments yesterday suggested strongly that Democrats were prepared this last round to include immunity, but only requested more time to determine how best that should be done and to obtain some information they have sought about past eavesdropping ("the issue was alright, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past").

Basically, then, the administration's posture towards Congress is now this: "we have been refusing to provide you any information about what we did over the last six years, and we will provide you some of that information only on the condition that you agree to provide full immunity for the consequences of any lawbreaking." Between (a) the Democratic Congress completing its capitulation to the administration's demands by granting full immunity and (b) reversing themselves on FISA after the 6-month period elapses, it hardly requires much consideration to know which is the far more likely outcome.

UPDATE: Brookings and TNR's Benjamin Wittes received much (well-deserved) unfavorable attention for the recent TNR article he wrote defending the new FISA amendments, but the FISA article he wrote in TNR back in February of this year was actually one of the most pompous and ignorant articles I have ever read. For that reason, it is worth excerpting at length again (I wrote about it at the time, here). It is so illustrative of so many things:

Unlike many of these oh-so-confident commentators, I actually know something about the Foreign Intelligence Surveillance Act. I am one of the very few journalists--to my knowledge, in fact, the only one--who ever physically set foot inside the super-secret Foreign Intelligence Surveillance Act (FISA) Court. FISA has been a particular interest of mine since the mid-'90s, when I was a young reporter at a legal trade paper and the court it created was the most obscure corner of the federal judiciary. Precisely because nobody knew anything about it, I studied it obsessively. I talked to the judges who heard the government's surveillance requests and to the Justice Department lawyers who advanced these applications. I learned, in some detail, the contours, value, and the limitations of FISA at a time when very few people cared about it.

So what is my assessment of the Terrorist Surveillance Program, informed by my decade of watching the court and the law that underlies it?

I don't know . . . .

I don't know what the program is. I don't know whether it was lawful before the recent change. Truth be told, I don't even understand what the change announced in Gonzales's letter really means. I can arrange the facts in the public record so as to describe a program that would, in my view, offend the Constitution. And I can arrange the facts in the public record so as to describe a program that would not, in my view, offend the Constitution. I can imagine a program outside of FISA that the law should be amended to accommodate. And I can imagine a program that violates the FISA precisely because it involves the kind of warrantless surveillance the law was passed to prevent. What's more, the more I learn about this program, the less I understand it. . . .

For whatever it's worth, here's my best guess--and, I stress, it's only a guess--about what this NSA program was all about: I suspect it was an earnest attempt to address problems that the drafters of the FISA would have been mortified to learn they had created for the intelligence community. . . .

This hypothesis could be totally wrong. The point is that, without knowing the precise contours of the program, it is simply impossible to evaluate it against a complicated and subtle law written at a time when the computer age was still in its infancy. Some day, we will finally learn what the program really was and why it couldn't, and then could, be approved through the FISA Court. Details will leak, or the technology will become too obsolete to warrant continued protection. When that day comes, those who insist that no possible combination of technology, law, and national emergency could excuse bypassing the court may find themselves embarrassed. . . . .

The whole thing is so suffuse with what TNR thinks is noble "equivocation and hand-wringing" as to be painful to read. And this oh-so-thoughtful Brookings expert could not have been more factually wrong in what he wrote.

FISA criminalizes the eavesdropping on Americans without a warrant. The Bush administration has long acknowledged it engaged in precisely the eavesdropping barred by FISA (they have advanced two legal theories for why Bush was "authorized" to eavesdrop in violation of FISA, but never contested that the eavesdropping they engaged in was barred by FISA). No further information is required to know that one way or the other.

All of Wittes' intellectual fantasies -- notwithstanding how impressed he is by them -- are actually grounded in complete ignorance, literally, of the basic issues governing this controversy. But there have been no consequences for this lawbreaking precisely because people like Wittes care more about showing how Smart and Serious they are than in enforcing the rule of law (only shrill partisan hysterics say things as unequivocal and uncivil as "the President broke the law").

UPDATE II: In comments, sysprog points to this amazing article by Tim Shorrock in Salon from earlier this year, which details McConnell's extensive private sector connections with the very telecommunication companies for which he is now demanding immunity:

McConnell, a retired vice admiral and former director of the National Security Agency, is the current director of defense programs at Booz Allen Hamilton.

With revenues of $3.7 billion in 2005, Booz Allen is one of the nation's biggest defense and intelligence contractors. Under McConnell's watch, Booz Allen has been deeply involved in some of the most controversial counterterrorism programs the Bush administration has run, including the infamous Total Information Awareness data-mining scheme. As a key contractor and advisor to the NSA, Booz Allen is almost certainly participating in the agency's warrantless surveillance of the telephone calls and e-mails of American citizens.. . . .

Booz Allen, along with Science Applications International Corp., General Dynamics, Lockheed Martin, Northrop Grumman, CACI International and a few other corporations, is one of the dominant players in intelligence contracting. Among its largest customers are the NSA, which monitors foreign and domestic communications, and the National Geospatial-Intelligence Agency, an amalgamation of the imagery divisions of the CIA and the Pentagon that was established in 2003. . . .

Buried deep on the company's Web site, however, I recently found an explanation of a Booz Allen I.T. contract with the Defense Intelligence Agency, which carries out intelligence for the Joint Chiefs of Staff and the secretary of defense. It states that the Booz Allen team "employs more than 10,000 TS/SCI cleared personnel." TS/SCI stands for top secret-sensitive compartmentalized intelligence, the highest possible security ratings. This would make Booz Allen one of the largest employers of cleared personnel in the United States.

Among the many former spooks on Booz Allen's payroll are R. James Woolsey, the well-known neoconservative and former CIA director; Joan Dempsey, the former chief of staff to CIA Director George Tenet and recently executive director of the President's Foreign Intelligence Advisory Board; and Keith Hall, the former director of the National Reconnaissance Office, the super-secret organization that oversees the nation's spy satellites. . . . .

And in a relationship that has been completely missed in media coverage of his appointment, McConnell is the chairman of the Intelligence and National Security Alliance, the primary business association of NSA and CIA contractors. As INSA chairman, I've been told, McConnell is presiding over an initiative to enhance ties between the intelligence agencies and their contractors and domestic law enforcement agencies.

McConnell's ties to these companies are so deep and numerous that it really rises to the level of conflict of interest for him to demand -- on national security grounds, no less -- that they be granted full immunity from liability for past illegal acts. He is, in essence, demanding immunity for vast numbers of his former partners, clients, associates and scores of business interests in which he had, if not still has, a substantial stake. This conflict is glaring and extreme, but Democrats said nothing about it when granting prospective immunity to this industry at his insistence. Thus far, they have also said nothing in the face of McConnell's demands that this immunity now be made retroactive as well.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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