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FISA Court Required Warrants For Spying on Iraqi Insurgents?
Here's something unexpected. During the hearing, Rep. Zoe Lofgren (D-CA) asked to see the FISA Court rulings from earlier this year, in closed session, that McConnell and Wainstein and others have said required a probable-cause based warrant for purely foreign-to-foreign communications, prompting the August revision to FISA. McConnell's lawyer, Benjamin Powell, said that as the rulings compounded this year, the intelligence community found itself "in a place" where more and more foreign communications became covered by FISA, contrary to the original language and intent of the act.
Then McConnell dropped a bombshell: the rulings required the NSA to get a warrant before listening in on the communications of Iraqi insurgents who kidnapped U.S. soldiers.
The ACLU has filed motions with the FISA Court to obtain those rulings. If the court ultimately rules in the ACLU's favor, we'll be able to see whether this extreme claim -- it's safe to say no one thinks the NSA needs warrants to conduct surveillance on Iraqi insurgent communications -- is based on an explicit order of the Court or on a lawyer's interpretation of a FISA Court ruling. Or, for that matter, whether McConnell has, again, said something about surveillance that just isn't true.
Update: Responding to our request to elaborate on McConnell's comments, his spokesman Ross Feinstein replies:
I am not going to expand on what [McConnell] said in the HJC hearing. However, I will add, that before the Protect America Act, the [intelligence community] was missing vital intelligence - intelligence gaps. That was the reason we proposed legislation to modernize FISA - in April '07.The Protect America Act has solved these gaps.
Comments (17)
jdw wrote on September 18, 2007 3:03 PM:It's McConnell. Why would anyone take anything he says on the face of it?
And if the need was this extreme, why wouldn't the Admin have publically stated this earlier? You don't think something like this would have swayed the public back in July?
fuzz wrote on September 18, 2007 3:05 PM:Of course I have no way of knowing if this particular claim is true or not, but my understanding is that warrants were required if any point on the path of communication was on US soil. So if they were using email servers based in the US, MySpace messages, phone service that's routed through the US, etc, a warrant would have been required.
TomJ wrote on September 18, 2007 3:09 PM:But the FISA court can't require the admin to ask for a warrant, someone decided to ask for one...maybe so they can now claim how bad the FISA law is.
At any rate, in order to change the law, wouldn't it be necessary to point out why they needed a warrant, like because they may be tapping american citizens in Iraq, or monitoring the phones of the parents/family of those kidnapped? (They could have just asked the family if it was okay.)
timnlisa1 wrote on September 18, 2007 3:21 PM:I thought that the way the FISA court worked was that they could wiretap in urgent cases without a warrant as long as they applied for a warrant within 72 hours. Wouldn't that apply here? This seems like BS on many levels if you asked me.
Dave Adams wrote on September 18, 2007 3:26 PM:That makes no sense.
Both the CIA and the NSA have as part of their charters (i.e. the purpose they even exist) the job of gathering intelligence from foreign sources.
The only reason a FISA warrant is needed is that communications are either originating from or being sent to a US-based location.
OneCrankyDem wrote on September 18, 2007 3:29 PM:Not really new. This is the whole reason for the new law. When FISA stopped the program a few months ago , the ruling was that anything passing thru a "switch" in the USA required a warrant. While these are my own words, this is the whole deal in a nutshell and what put the admin. in such a panic. This is why they are so eager to see the ruling and what it says.
OneCrankyDem wrote on September 18, 2007 3:34 PM:Ok, not the whole reason. The other main reason is to give Immunity to the telcos. McConnell could not answer the question that if no laws were broken, why do the Telcos need Immunity ?
One other important point in the testimony was when McConnell admitted that his oath to the Constitution was less important than protecting the country from a attack. Something I believe should require his dismissal
smass wrote on September 18, 2007 3:39 PM:The proceedings of the court are secret, right? Does secret mean classified? And if so, does that mean that the DNI just declassified this information? I don't know any of this stuff, but I'm curious, considering the history of classified info.
dolooper wrote on September 18, 2007 3:43 PM:All this demonstrates is that the U.S. has annexed Iraq and Iraq in now U.S. territory, otherwise why would we need warrants to intercept purely Iraqi communications?
ThomThom wrote on September 18, 2007 4:09 PM:I'd have to get McConnell's exact quote, but the claim as paraphrased is wrong prima facie on two points. Foreign to foreign surveillance is explicitly permitted under FISA. Also, intelligence organizations were explicitly given three days leeway. That is, they don't need the warrant beforehand. They have three days of listening time before they must request a warrant.
I think McConnell has... ahem... misspoken once again.
Anonymous wrote on September 18, 2007 4:25 PM:Read the published rules of FISA and you'll know his statement is bullsh*t.
It's just too pat: "Our hands were tied by our own rules."
They can tap for some time without a warrant.
paul wrote on September 18, 2007 4:54 PM:I also have to wonder, considering that FISA judges have been willing to issue warrants by phone, just how hard it would be to fax something that says, "We have this information from informants and this data from traffic analysis saying that these are the communications of iraqi insurgents." If you look at the typical search-warrant request that gets released, it becomes clear that this stuff isn't rocket science.
(I also find this claim pretty risible -- I'm imagining iraqi insurgents rubbing their hands in glee, plotting that they can communicate safely not by using couriers or disposable cell phones or dead drops, but entirely US-controlled lines, which will be sacrosanct because the dishonorable infidel occupiers have laws that require a warrant before the lines can be tapped.)
Mary wrote on September 18, 2007 5:02 PM:What American soldiers were kidnapped during that time frame?
I also go back to Judge Lamberth's statements that he granted warrants from his car on 9/11. And there is the 3 day period - - so even if warrants were required (and I have to think he's smoking something on that) the monitoring could still begin right away. So the problem was - ?
Whatever - you can't believe any of these guys anymore. Pinocchio's nose grew; their souls shrink
illlich wrote on September 18, 2007 5:17 PM:I'm not sure I understand this report. Something about this seems like a "strawman" argument, like the kind Rush Limbaugh would create to defend unfettered spying. I suspect either McConnel is making it up, or someone is deliberately misinterpreting some part of the law in order to help emasculate the law at some point in the future.
asdf wrote on September 18, 2007 8:03 PM:Based on earlier McConnell testimony for the inteligence committee its quite clear that FISA was apparently broken by collecting stuff from wires on US soil. (My c-span video file dates 05-03-07)
At least, he keeps going on about the wired/wireless distinction. And from the Mark Klein evidence its looks quite plausible that the NSA didn`t bother with the many fibers on US soil until 9/11, plus some time to get the off the shelf gear. (Going of the shelf suggest a hurry for an agency that can spend years and billions without getting even the first steps of working systems, see "trailblazer")
Most outside experts speculated as much (See for example The glory is fleeting on sigint and terrorism by Matthew Aid)
The NSA used to do a lot of (and with the passing of FISA only?) radio communications from US soil. Specifically satellites and lower frequencies. Though maybe they did some things trough CALEA infrastructure. It would be the cheap way of going after say an embassy.
And even with distinctly foreign radio they get to do that unless there is a reason to believe US persons are involved, in which case minimization kicks in. (See Bolton, intercepts) IIRC targeting US persons without a warrant was prohibited.
Most collection may have happened away from US soil. Say from "shared" bases, planes, boats satellites, submarines and even... trucks!
According to one bit of Risen reporting I seem to remember, the DOJ was always concerned that collection from US based switches in a wired network would end up in trouble. Now it has, and blaming congress while Bush could have put anything he wanted in the many FISA changes that were passed is really really unfair. This simply isn`t a law from the 70`s anymore!
And if my speculation is correct, then this "but the Iraqis will get you in your sleep!!!" statement is misleading.
The only reason FISA would be a real significant issue would be if the CIA had spend all that time and money setting up and running an Iraqi inteligence organization... but forgot to include snooping gear on Iraqi soil. (oops ;-) During the cold war the CIA handed out gear to anyone and everyone who wanted to trade intel. (until the Israelis started beating the US at this game?)
Even if stuff gets stored on US servers its makes a trip trough copper, fiber or maybe some microwave radio links in the region. (The CIA world factbook lists the basics, a little googling gives you maps and press releases with details of most telecommunications infrastructure)
Intercepted communications are the main trading currency of the inteligence world.
Also, didn`t the Israelis help setting up the mobile phone system in the Kurdish region, you know those former unit 8200 guys?
OT
like most people I suspect the new definition of electronic surveillance excludes traffic data from the warrant requirements. Look at Haydens national press club remarks to see him admit that when he said "we are not sucking up comms" he wasn`t talking about traffic data. And still people were surprised by the USA today story.
What is it with Americans not trusting anything unless it comes from an anonymous government source? Seriously press statements, FOIA, court documents, public FISA court opinions, fisa application numbers, snooping gear manufacturers press releases... the list of information is endless, but people are to lazy to figure out what has political significance by themselfs. better leave that to the partisan political professionals.
The Oracle wrote on September 18, 2007 10:43 PM:There's really only one "vital intelligence gap"---between the ears of most culture of corruption and deceit Republicans.
fred wrote on September 19, 2007 9:02 AM:Don't we still have some MIA/kidnapped soldiers in Iraq? We haven't heard much about them since we were ordered out of the neighborhood in Bhagdad.