DNI Confirms Illegaltiy of Warrantless Wiretaps

Director of National Intelligence J. Michael McConnell, the nation's top intelligence official, has confirmed that a federal court did rule the Bush administration's warrantless wiretapping program was in violation of the law, prompting the mad rush in Congress this month to overhaul key espionage provisions.^[1]

In an interview with the El Paso Times,^[2] McConnell also disclosed that the number of people in the United States who are under surveillance by the nation's spy services is "100 or less," a figure he said showed that the government was not engaged in widespread spying on Americans.^[3]

His comments represent an exceedingly rare candid public description of one of the nation's most closely guarded and controversial espionage operations.^[4] Many of the details he described -- such as the deliberations of the special intelligence court and the scope of the surveillance operation -- are usually considered classified.^[5]

The Foreign Intelligence Surveillance Court's adverse ruling earlier this year delivered a major blow to U.S. spying operations, even as intelligence analysts were expressing growing alarm that the Al Qaeda terrorist network was regrouping, "[w]e found ourselves in a position of actually losing ground," McConnell asserted.^[6]

Initially, he said, one of the judges on the 11-member panel supported the government's position and ruled that individual warrants were not needed to intercept communication between two people overseas whose e-mails or calls happened to travel through data networks inside the United States.^[7] But in a subsequent review, a second judge took a different position which meant that the government had to get a court order to trace calls or e-mails that traveled on networks inside the United States, even if the parties at both ends were overseas.^[8] However the government managed to obtain a temporary stay allowing it to continue intercepting e-mails and phone calls without individual warrants through May 31.^[9]

McConnell then began banging the table at Capitol Hill alerting all who would listen that a key piece of the nation's counter-terrorism capabilities was about to be cut of at the knees. Those warnings fueled a frantic, end-of-summer push in Congress to rewrite the laws,^[10] the emergency legislation, which is set to expire in six months,[11] allowed the government to resume its eavesdropping operations without individual warrants.^[12]

But the changes, and the hurried atmosphere in which they were adopted, have prompted many Democrats to express misgivings about the revisions; they have pledged to revisit the issue next month after Congress returns from its August recess.^[13]

In defending the wiretapping program, McConnell did assert that, "[t]here's a sense that we're doing massive data mining, [i]n fact, what we're doing is surgical. A telephone number is surgical. So, if you know what number, you can select it out." he said, referring to the practice of searching for suspicious content by combing through calling data surrendered by telephone companies.^[14]

McConnell's statement suggests that the government, which has access to most major telecommunications networks inside the United States, pulls out for review only the contents connected to phone numbers that are already under suspicion for ties to terrorism or other foreign intelligence priorities.^[15]

McConnell said the nation's spy agencies obtained warrants any time they targeted someone inside U.S. borders. "It's a manageable thing, [o]n the U.S. persons side, it's 100 or less…….[o]n the "foreign side, it's in the thousands." McConnell said.^[16]

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^[1] Greg Miller, Spy chief reveals details of operations, Los Angeles Times, August 23, 2007, http://www.latimes.com/news/nationworld/nation/la-na-intel23aug23,1,2267586.story?coll=la-headlines-nation&ctrack=1&cset=true (last visited August 28, 2007).
^[2] McConnell was interviewed by the El Paso Times after addressing a border security conference in the city Aug. 14. On Wednesday, the newspaper posted a transcript of the interview on its website at www.elpasotimes.com/news/ci_6685679 (last visited August 28, 2007).
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Which were passed in the 1970’s as a response to problems caused when U.S. intelligence agencies had been caught spying on student groups and other domestic targets.
^[11] Ryan Singel, Analysis: New Law Gives Government Six Months to Turn Internet and Phone Systems into Permanent Spying Architecture – UPDATED, Wired.com, August 06, 2007, available at http://blog.wired.com/27bstroke6/2007/08/analysis-new-la.html (last visited August 28, 2007) (The bill, known as the Protect America Act, removes the prohibition on warrantless spying on Americans abroad and gives the government wide powers to order communication service providers such as cell phone companies and ISPs to make their networks available to government eavesdroppers.)
^[12] Id.
^[13] See, Comments made by Sen. Leahy in this blog, here.
^[14] Id.
^[15] Id.
^[16] Id.