Director of National Intelligence Asks to Extend Wiretapping Laws

Director of National Intelligence Mike McConnell will be seeking to extend the government's power to read e-mails, listen to telephone calls and carry out other surveillance within the USA in national security cases this week.^[1] Democrats are criticizing McConnell's proposals asserting that judges should oversee that type of surveillance.^[2]

Many Democrats also object to a second item on McConnell’s wish list: immunity from lawsuits for telecom companies that helped the federal government intercept calls between U.S. and foreign intelligence targets without warrants from late 2001 until last January.^[3]

A 1978 law requires the national intelligence services (CIA, FBI, NSA, etc.) to get a warrant from the Foreign Intelligence Surveillance Court before eavesdropping in a national security case on a target in the USA.^[4] Overseas targets, such as two al-Qaeda operatives speaking on cellphones in Pakistan, generally may be tapped without a warrant.^[5]

Recent changes in fiber-optic technology, though, cause many foreign-to-foreign phone calls, e-mails and other electronic messages to pass through American-based switching points.^[6] Earlier this year, a foreign intelligence court judge ruled that warrants were required to intercept those calls as they passed through American lines.^[7] McConnel complains that this is an undue burden because the warrant process takes 200 hours per phone number, is unnecessarily time consuming, and results in lost opportunities to collect intelligence.^[8]

This spring, with the backing of President Bush, McConnell and other intelligence officers lobbied hard for a bill that would eliminate the need for a warrant in such cases, and last month, Congress passed a temporary fix that currently allows intercepts without a warrant.^[9] It applies to wire communications involving foreign parties and to calls and e-mails in which one participant is U.S.-based, provided the overseas party is the object of a national security investigation; the law expires in February.^[10]

Democrats will offer their own legislation addressing what they called the "many deficiencies" in the law.^[11] Chief among them is the lack of "even limited court oversight" of the decision to tap a phone or read an e-mail.^[12] “[Under the new law the court's role has been marginalized……do we really want the attorney general and the director of national intelligence doing the oversight on their own decisions?" says American Civil Liberties Union attorney Tim Sparapani.^[13]

Federal criminal defense attorney Douglas McNabb has previously written about the Government’s warrantless wiretapping program in his national security crimes blog, these posts can be found here.

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^[1] Richard Willing, Intel chief pushes new spy law, USA Today, September 18, 2007, available at http://www.usatoday.com/news/washington/2007-09-16-intel_N.htm (last visited September 18, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.