Government Would Consider Language Tweaks in FISA Update

The government would be “happy to consider” revisions suggested for a Foreign Intelligence Surveillance Act update, Wainstein said. Specifically, the U.S. is willing to revisit language questioned by Reps. Bobby Scott (D- Va.) and Zoe Lofgren (D-Calif.) declaring that the U.S. could target conversations “concerning” rather than “directed at” someone outside the U.S. But new language has to be checked to make sure it does not limit surveillance in unintended ways, he said.

Rep. John Conyers (D-Mich.) grilled McConnell on remarks he made to the El Paso Times to the effect that the National Security Agency has wiretapped 100 or fewer Americans. There is “confusion of what the word ’tapped’ means,” McConnell said, explaining that only one side of a conversation can be tapped. The number he gave the Times did not reflect how many Americans’ conversations were overheard while tapping foreign lines, he said. McConnell told Conyers he didn’t have numbers on overheard conversations, but could obtain that information for a later, closed hearing.

McConnell’s claim to the El Paso Times that it takes 200 man-hours to get a FISA warrant clashed with testimony to the earlier House Intelligence hearing, Rep. Jerrold Nadler (D-N.Y.) said. During that hearing, former Justice Department intelligence counsel Jim Baker said most of the work included in that 200 hours has to be done whether or not a warrant is needed. Getting a warrant involves minimal extra work, he said. McConnell said he stood by his estimate, explaining that his previous role as NSA director gave him more authority on the subject than Baker.

McConnell’s clarifications on his El Paso Times statements were not limited to the hearing. In a Tuesday letter to the Judiciary Committee, he denied telling the paper that a telco-government relationship existed. “In the course of that interview, while discussing the need for legislation that provides liability protection for private sector companies alleged to have assisted us following the events of September 11, 2001, I did not confirm any specific relationship between the Government and any particular company,” McConnell wrote.

Government officials reiterated the need for telco immunity. Congress should give telcos immunity for “alleged cooperation with intelligence community to conduct foreign intelligence,” McConnell said. The government has confirmed the merits of “40 to 50” cases related to the complaint, said Wainstein.

The House Intelligence hearing covered similar FISA issues. Phone companies should have retroactive but not “ruinous” liability, CDT policy director James Dempsey said in written testimony. According to FISA, illegal surveillance victims are entitled to at least $1,000 or $100 per day for each day of violation, he said. But Congress could cap damages to protect violators from ruin, he said.

“The notion that privacy exists in today’s globalized world is largely a myth,” said lawyer David Rivkin, a former White House counsel who also worked for the Justice Department. Americans know and are “untroubled” by the fact the government may listen to their international calls, he said. Anyone who really wants a private conversation with someone overseas should have it in person, he said. If Congress fears privacy abuses, it should amend minimization procedures and enlarge the “gang of eight” that includes congressional leaders regularly briefed on intelligence operations, he said.

Minimization isn’t enough, CDT Policy Director James Dempsey said in testimony. The court still needs to review government selection and filtering methods so they ensure citizens’ privacy, he said. “Minimization without a court order does not make a search constitutional,” he said.

Congress should seek more Intelligence disclosures, said privacy groups. Congress should get information about past illegal surveillance activities and publicly disclose them, said Kate Martin, director, Center for National Security Studies. Congress also should make the government publicly explain its interpretation of each Protect America Act provision, she said. To monitor activities, Congress should require the National Security Agency to report periodically to the FISA court, and assign inspectors general to make periodic audits of the surveillance program, with results reported to Intelligence and Judiciary committees in the House and Senate, Dempsey said.

The Judiciary Committee hearing was interrupted several times by grassroots group Code Pink. After some urging by Rep. Dan Lundgren (R-Calif.), Conyers ejected a woman who displayed a sign reading “Don’t tap me.” The group later staged a walkout. “I guess I don’t have to go to Disney World this year,” Lundgren said.