Despite concerns voiced by the U.S. head of intelligence operations that revealing details of wiretapping programs would result in American deaths, the White House's push for reform of the rules that govern the programs has opened the door for details to spill out during congressional hearings.
Such was the case Thursday in a hearing before the House Permanent Select Committee on Intelligence. Director of National Intelligence Michael McConnell discussed details about U.S. officials being required to get a court order to intercept communications of Iraqi insurgents who had captured four U.S. soldiers in Iraq May 12. The soldiers were part of the 10th Mountain Division.
"We have to abide by the law," McConnell told the committee.
According to officials briefed on the incident and McConnell's testimony, it took more than 12 hours for officials to approve the wiretap. A secret court order from the Foreign Intelligence Surveillance Court in February required that a FISA warrant be obtained for any communications on U.S.-based circuits or fiber optic cables.
The ruling now requires that a warrant be obtained for intercepting foreign-to-foreign communications outside the United States if the targets of surveillance are communicating via U.S.-based fiber cable or circuit such as the Internet.
Rep. Heather Wilson, R-N.M., asked McConnell, "So we had U.S. soldiers who were captured in Iraq by insurgents, and for the 12 hours immediately following their captures, you weren't able to listen to their communications."
McConnell said, "The reason I've tried to be as straightforward and open on this subject as I have [is] because it is so important that we get this right. Now, many are going to accuse me of declassifying information -- a warmonger, a fearmonger, whatever. We've got to get this right because sometimes those timelines are so tight."
Some committee members questioned McConnell's credibility, especially comments he made to the El Paso Times last month that Americans would die because of open testimony in Congress. In that interview, McConnell was asked by the reporter, "So you're saying that the reporting and the debate in Congress mean that some Americans are going to die?"
McConnell responded by saying, "That's what I mean -- because we have made it so public. We used to do these things very differently, but for whatever reason it's a democratic process and sunshine's a good thing."
Rep. Anna Eshoo, D-Calif., told McConnell, "You're saying and standing by that, your previous statement, that when we debate these issues in the Congress of the United States, which is our system, that Americans -- some Americans -- are going to die. And I really think that's a stretch. And I think because of some of these things, it has done damage to what you bring forward. It puts a dent in the credibility."
The order requiring court supervision of foreign communications that transit the United States came after the secret court authorized by FISA began oversight of the National Security Agency's Terrorist Surveillance Program, although officials say the two events are separate.
Rep. Peter Hoekstra, R-Mich., the ranking member of the House Intelligence Committee, said, "The situation was because global communications move on wire, you can have a situation where information would pass on a wire through this country. So for us to specifically target the individuals that were involved in that kidnap, we had to go through a court order process. ... We are extending Fourth Amendment rights to a terrorist foreigner ... who's captured U.S. soldiers."
According to U.S. officials, the government began intercepting the insurgent communications and had to obtain an emergency FISA warrant when it was discovered that the insurgents were communicating on a circuit connected to the United States.
The emergency FISA warrant allows immediate surveillance with a phone call to either the attorney general, the deputy attorney general or the assistant attorney general of the National Security Division. It is after receiving a request for emergency wiretapping that the government has 72 hours to establish probable cause required by the court.
At the hearing, Assistant Attorney General for National Security Ken Wainstein said, "We have to find that there is probable cause that the person we want to surveil overseas is an agent of a foreign power. And if we don't find that, we're not allowed, under the statute, to go ahead and authorize emergency authority. And within 72 hours, we have to make that showing to the satisfaction of the FISA court. So it's a very important responsibility, a weighty responsibility, and it's nothing that we take lightly."
The FISA legislation passed by Congress in August, the Protect America Act, provided a temporary modification to the government's ability to intercept communications between foreign parties. McConnell said that the current legislation "allows us to do our overseas foreign intelligence mission."
Testifying about the impediment before the August legislation, Wainstein said, "There are a number of instances where we cannot make that showing, and we could therefore not do that surveillance."
Passed into law in 1978, the Foreign Intelligence Surveillance Act provides protections of U.S. persons from unauthorized government surveillance, an issue that has come under scrutiny after the NSA's eavesdropping program was revealed.