Spy Chief Faces Skeptics on Capitol Hill

Sept. 25, 2007 — -- Michael McConnell, the director of National Intelligence, faced some skeptical Democrats as he testified before the Senate Judiciary Committee Tuesday morning about making permanent changes to the Foreign Intelligence Surveillance Act.

"We're asked to trust that the government will not misuse its authority. When the issue is giving significant new powers to government, 'just trust us' is not quite enough," Senate Judiciary Chairman Patrick Leahy, D-Vt., said in his opening statement.

McConnell and the administration have been pushing Congress to make recently passed changes in the surveillance law permanent, as the current provisions are set to expire in February.

The key element is exempting intelligence and counterterrorism officials from requiring a warrant to intercept foreign-to-foreign communications. A secret order from the FISA court, in February, required that any foreign-to-foreign communications carried on U.S. circuits, via the Internet or fiber optic cables, required a warrant.

While most members agree on fixing this measure, concerned members of Congress have debated a section of the law that exempts telecommunication firms from litigation, for complying with government requests in investigations.

"The Rockefeller-Levin measure, by contrast, would have allowed the basket surveillance orders that the administration says are needed and that McConnell says are needed with no individual probable cause determinations, but at least had the FISA court issuing those orders to communications carriers after reviewing the administration's procedures," Leahy told McConnell.

AT&T and other major telecommunications firms have become the subject of civil lawsuits for participating in the National Security Agency's warrantless wiretapping program — the Terrorist Surveillance Program.

In his prepared statement, McConnell continued to voice his concerns about having open public discussions about FISA. "I will be as open as possible, but much of … these discussions come with some degree of risk. This is because open discussion of specific foreign intelligence collection capabilities causes us to lose those very same capabilities."

McConnell has made numerous appearances before Congress in recent weeks, in both classified and open sessions, seeking to change FISA, which was originally passed in 1978 to protect Americans from unauthorized surveillance.

"It has been amended about 30 times since then; around eight times … at the request of the administration with which you serve," Leahy said. "And I think it's somewhat disingenuous to keep referring to the fact that we were dealing with a 1978 law."

Leahy sharply questioned McConnell about previous statements he's made on how much surveillance coverage was lost because of the FISA court order, and statements that the legislation passed in August allowed investigators to help disrupt a recent terror plot in Germany.

McConnell told Leahy about the volume of communications that had been intercepted, and its vital importance in counterterrorism efforts, saying, "about 50 percent of what we know comes from this process. About two-thirds of that had been degraded.

"So, my push and emphasis over the summer was, we have to get this wording changed so we can be more efficient and effective in targeting foreigners overseas."

Leahy scolded McConnell, saying, "If a well-intentioned person like you can make such mistakes, you can understand why we need to have some checks on this so that mistakes are not made."

Leahy also told McConnell, "It's interesting. I was in many of those meetings with you and the White House. We talked about how it was going and we talked about what we were going to do. None of the concerns that you're talking about now were raised at that time. They were raised — they were certainly raised when it was on the floor. And that's what creates the concern."

Questioned by the panel over the timing of this summer's National Intelligence Estimate on the al Qaeda threat, McConnell said, "What had happened is, we had observed al Qaeda, in the federally administered tribal area of Pakistan, be able to re-establish a safe haven that allowed them to have the senior leadership recruit middle-grade leadership, recruit operatives, and to train the operatives."

McConnell continued, "The operatives were being trained in things like commercially available components for explosives. And so, that level of activity had increased significantly. The intent of al Qaeda's leadership was to move those operatives from the training area into Europe, and into the United States."

When asked by the committee's ranking Republican, Pennsylvania Sen. Arlen Specter, about the recent Osama Bin Laden video tapes, McConnell said, "I would say it's a concern. It just causes us to be concerned and vigilant."