Yesterday I received an email from Senator Dianne Feinstein responding to a message I had sent excoriating her for her vote for the Protect America Act. You can read her response, including the full text of a letter she received from Admiral Mike McConnell, and my counter-response below the fold. Warning: this is a long post but it's worth your time.
I encourage all of you to keep constant pressure on Congress on this issue. We cannot allow them to cave.
Senator Feinstein's email:
Dear Mr. [Truckystiv]:
Thank you for writing to me about domestic electronic surveillance and the Foreign Intelligence Surveillance Act of 1978 (FISA). I appreciate you taking the time to write and I welcome the opportunity to respond.
On August 5, 2007, President Bush signed into law the Protect America Act of 2007 (Public Law 110-55), which I voted for in the Senate. This law makes interim changes to FISA designed to close gaps in the nation's intelligence-gathering capability. It is a temporary change that expires in six months. However, it immediately addresses critical gaps in our intelligence-collection efforts, while preserving a role for FISA court review.
My support for these changes was mainly based on multiple conversations I had with Admiral Mike McConnell, the Director of National Intelligence, prior to the vote. He stressed to me that the intelligence community is deeply concerned that chatter among suspected terrorist networks is up, and that in this period of heightened vulnerability, we must move quickly to give the intelligence community the tools they need to protect America. While I agreed with his assessment, I asked for, and received, a written assurance that these temporary modifications would not infringe on the rights of Americans. I have included a copy of Admiral McConnell's letter with this correspondence.
The Senate Intelligence and Judiciary Committees, on which I serve, have begun discussing and drafting legislation to replace the law enacted in August. I will make every effort to ensure that new legislation will continue to protect the privacy rights of all Americans without restricting the intelligence community's ability to protect the nation. This requires allowing for flexible, agile surveillance to gather foreign intelligence information from non-Americans overseas while preventing domestic warrantless spying.
I have been briefed on the operational details of the electronic surveillance program known publicly as the Terrorist Surveillance Program and investigated its legality. From the beginning, I have argued that the program could and should be conducted under FISA Court supervision and full congressional oversight. It is my hope that this will be the final result of legislation.
Again, thank you for writing. I hope you will continue to write on matters of importance to you. If you have additional comments or question, please feel free to contact my Washington, D.C. office at (202) 224-3841. Best regards.
DIRECTOR OF NATIONAL INTELLIGENCE
Washington, DC 20511
August 6, 2007
The Honorable Harry Reid
Majority Leader
United States Senate
The Honorable Mitch McConnell
Minority Leader
United States Senate
Dear Majority Leader Reid and Minority Leader McConnell:
I write to the United States Senate after discussions with Members indicated a letter discussing the "Protect America Act of 2007," S.1927 (Act) would be helpful. I deeply appreciate the time spent by Members understanding the need for this legislation and acting before the August recess to close critical gaps in the Intelligence Community's ability to provide warning of threats to the country.
First, I note that this was not an issue discussed only in the last few weeks. In 2006, there were extensive hearings and meetings before the Senate and the House of Representatives, including an unusual open hearing before the Senate Judiciary Committee on "FISA for the 21st Century" on July 26, 2006 where the Director of the Central Intelligence Agency and the Director of the National Security Agency (NSA) testified. In addition, there were numerous bills introduced in both the House and Senate. Indeed, in 2006, the House of Representatives passed the "Electronic Surveillance Modernization Act" (H.R. 5825), but the Senate did not pass legislation on this issue. In April 2007, responding to a congressional request, I transmitted to Congress a proposal to modernize FISA and appeared at an open hearing before the Senate Select Committee on Intelligence on May 1, 2007.
In addition, there were numerous classified briefings provided to committees of Congress, individual Member briefings, and sessions open to all Members of Congress. The legislative record of consideration of this issue has been lengthy and deep in substance.
Second, there is understandable confusion in the public discussion of what is admittedly a complex - and frequently classified - issue. But I would note that in the interest of providing an extensive legislative record and allowing for public discussion of this issue, the Intelligence Community discussed in open settings extraordinary information dealing with our operations. This will come at a price to our ability to collect vital foreign intelligence. However, to ensure there was open legislative consideration of this matter, leaders of the Intelligence Community went far further in open discussions than in any other time I can recall in my forty-year intelligence career.
As I noted in my testimony on May 1, 2007, but lost in some recent discussion of this issue, the fundamental fact is that the Act is aimed at restoring the effect of the Foreign Intelligence Surveillance Act (FISA) drafted in 1978. FISA, based on the technology of 1978, specifically excluded from its scope certain types of international communications carried by radio and satellite. Today, many of those same communications are now transmitted by different means. This change in technology resulted in requiring, in a significant number of cases, that the Government seek court orders to monitor the communications of foreign persons physically located in foreign countries. To be clear -- the Intelligence Community was diverting scarce counterterrorism analysts who speak the languages and understand the cultures of adversaries to compiling lengthy court submissions to support probable cause findings on an individualized basis by the FISA Court in order to gather foreign intelligence from foreign terrorists located overseas. This is an unacceptable and irresponsible use of Intelligence Community resources.
Related to the discussion of exclusions contained in FISA as enacted in 1978 is the proposal of limiting the gathering of foreign intelligence from targets located overseas to discrete categories such as "international terrorism." In 1978, generally no such limitation was placed on activities excluded from the definition of electronic surveillance in FISA and directed at persons overseas -- nor is one appropriate today. The Intelligence Community must be able to gather needed intelligence information on the array of threats to our national security as it was able to in 1978.
Third, while fixing the problems created by changes in technology, the Act creates new requirements not present in FISA as enacted in 1978. In addition to requiring certain determinations from the Attorney General and the Director of National Intelligence, the Act requires the Government to submit its procedures established under the Act for determining that acquisitions are not electronic surveillance to the FISA Court for judicial review.
Fourth, FISA - both before the enactment of this Act and after - generally requires a court order to target the communications of persons in the United States for electronic surveillance as defined by FISA. Again, that was the case before this enactment and will remain the case after. This is a requirement I strongly support.
Fifth, there has also been confusing discussion about the treatment of information concerning United States persons by NSA. These procedures governing how NSA treats information concerning United States persons are frequently referred to as "minimization" procedures. During the course of normal operations, NSA will sometimes encounter information to, from or about U.S. persons. That fact does not, in itself, cause FISA to apply to NSA's activities directed at persons located overseas.
Instead, as it has for decades, NSA applies procedures approved by the U.S. Attorney General to its activities that minimize the acquisition, retention, and dissemination of information concerning U.S. persons. These procedures have worked well for decades and eliminate from intelligence reports incidentally acquired information concerning U.S. persons that does not constitute foreign intelligence.
The Act makes clear in Section 105B(a)(5) that "the minimization procedures to be used with respect to [acquisitions must] meet the definition of minimization procedures under section 101(h)" of FISA, which defines in law the requirements of such procedures. The Act does not change the definition of minimization procedures contained in FISA.
Finally, there will be intense oversight of activities conducted under the Act. There are extensive training, compliance, and other procedures in place at agencies to ensure our activities are conducted according to law. The relevant agencies have Inspectors General staffs with the appropriate clearances, training, and technical background to ensure that activities are reviewed and audited.
I am committed to keeping the Congress fully and currently informed of how this Act has improved the ability of the Intelligence Community to protect the country and reporting - and remedying - any incidents of non-compliance.
Thank you for the time afforded to me and the consideration of proposals to fix critical gaps in our intelligence operations. I look forward to continuing our discussions and working with all Members to address any concerns about the Act. If you have any questions on this matter, please contact me.
Sincerely,
J.M. McConnell
cc: All Senate Members
Sincerely yours,
Dianne Feinstein
United States Senator
My response:
Dear Senator Feinstein:
Thank you for your reply to my email on the FISA question. I appreciate you and your staff taking the time to note and address my concerns over the FISA issue and your recent vote on the Protect America Act.
Unfortunately, the timing of your reply only highlights the concerns in my original email and the inadequacy of your response. You write about conversations with Admiral McConnell before the vote and mention his assertions that the "chatter" that was "up". Your colleague in the House, Representative Jane Harmon said of this chatter: ""that specific intelligence claim, it turned out, was bogus; the intelligence agencies knew that."[1] I find it distressing that you still refer to this as justification for your vote.
It is also distressing that you defend your vote with Admiral McConnell's written assurances that "these temporary modifications would not infringe on the rights of Americans" when the administration, to whom Admiral McConnell answers, has, referring to itself as "the Federal government" to the exclusion of Congress, forbid three telecom companies from testifying or providing data to Congress on the issue [2], is pushing retroactive immunity for these companies potential involvement in illegal, unconstitutional wiretaps [3], has both publicly admitted that it has defied the law [4] and actively blocked all attempts at oversight since this story has become public [5]. We have also learned that the Pentagon has improperly used the FBI to issue NSL's enforced by telecoms and that the telecoms have handed over material without court order [6].
Quite frankly, the response of Admiral McConnell is not worth the paper it is written on and for you to take it at face value and, indeed, to hold it up in defense of your vote is simply shocking.
Senator, we are facing a Constitutional crisis unprecedented in our history: the legitimacy of Congress as a coequal branch of government has been put at stake on this issue. The very rule of law in this country hangs in the balance. Are you so close to the beltway that you cannot see the simple truth that this isn't about some technicality in FISA but about the very Constitution by which this Republic exists? You should be taking all legislation off the table, investigating all aspects of the Terrorist Surveillance Program (and all the other programs that have been alluded to repeatedly in Congressional testimony) and working with the House to impeach immediately if those investigations are blocked or impeded in any way. America's security is important but your oath to the Constitution is paramount. Your actions at this moment will determine if we continue as a Republic with three coequal branches of government or move forever forward with a unitary executive commanding a surveillance state wherein our founding document is, to (allegedly) quote the President, nothing but "a goddamn piece of paper." [7]
I sincerely encourage you to fundamentally reevaluate your position on this matter and to aggressively move to "uphold and defend the Constitution".
Sincerely,
[Truckystiv]
[1]http://rawstory.com/news/2007/Republicans_pushed_bogus_terror_threat_to_0919.html
[2]http://www.chron.com/disp/story.mpl/nation/5216796.html
[3]http://www.usatoday.com/news/washington/2007-10-10-bush-eavesdropping_N.htm?csp=34
[4]http://writ.news.findlaw.com/dean/20060324.html
[5]http://www.slate.com/id/2135325/
[6]http://www.washingtonpost.com/wp-dyn/content/article/2007/10/15/AR2007101501857.html?hpid=topnews
[7]http://www.capitolhillblue.com/artman/publish/article_7779.shtml