Stateside: Pig In A Poke From Piggy In The Middle

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Senators Leahy and Specter converse before the hearing begins, while photographers get their shots of the Director of National Intelligence, Mike McConnell.

Senate Judiciary Committee Chair, Sen. Patrick Leahy (D-VT) was mincing no words when he asked the Director of National Intelligence, Mike McConnell, if he was trying to sell the committee a “pig in a poke” at a hearing on Capitol Hill on Tuesday 25 September. The committee was looking into two pieces of legislation that are at the heart of US intelligence gathering: FISA and the Protect America Act.

Leahy’s question was in reference to the retroactive immunity (from being sued by their customers) that the DNI wants for telecommunications companies who allegedly cooperated with the National Security Agency’s warrantless wiretapping in the US for the past several years. The Protect America Act, passed during this year’s August stampede when legislators are trying to get out of Congress and go on vacation, provides just such liability protection for anyone compelled by provisions of that Act to cooperate with the intelligence community.

Referring to a non-legislative tool that has been available to the intelligence community since 1981, Senator Orrin Hatch (R-PA) asked how many times the IC had used the provisions in section 2.5 of Executive Order 12333 in the past year. It allows the Attorney General to make “an individualized finding that there is probable cause to believe that an American abroad is an agent of a foreign power” and the AG’s authorization allows the IC to conduct electronic surveillance and searches. Section 2.5 had been used 55 times in the past year, the Director said.

He then went on to say that, while the Executive Order allows the intelligence community to “target one end of a conversation—a foreign target in a foreign country—if they call in to the United States [we’re hindered], and that call could be a sleeper activation.” The hindrance he refers to is the requirement in the Foreign Intelligence Surveillance Act (FISA) for FISA Court approval for conducting electronic surveillance within the United States.

FISA was passed in 1978, post-Watergate. It was introduced at that time by Senator Edward Kennedy (D-MA), who said at Tuesday’s committee hearing, “A Democratic Congress worked with a Republican Administration to develop a wiretapping program we could all support, and it has served America well.” He contrasted that earlier bi-partisan approach to the current situation in which “the Bush Administration has consistently pursued a different path. They have insisted on going it alone.”

“Are you going to be working with us?” Kennedy asked Director McConnell. “Absolutely.” “Will OUR decision be the only one you’ll follow?” pressed Kennedy. “I’ll follow the law,” responded McConnell, foreshadowing a response he would later make to a question from Senator Dianne Feinstein (D-CA) about whether FISA is “the exclusive means to conduct foreign intelligence.”

McConnell responded, “I can’t commit one way or the other to the Executive Branch or the Legislative Branch… I can’t solve the constitutional debate that your question is addressing at a fundamental level.” Throughout the questioning, McConnell insisted that he is just trying to do the duty that has been given him: “to encourage changes to policies and procedures, and where needed, legislation, to improve our ability to provide warning of terrorist or other threats to this country.”

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