In early 2006, when the scandal over the administration’s warrantless-search program was front-page news, one of the central questions of the debate was whether the president had violated FISA. During a press conference, a reporter asked Bush why he decided to “circumvent” the law.
“[T]he FISA law was written in 1978,” the president said. “We’re having this discussion in 2006. It’s a different world. And FISA is still an important tool. It’s an important tool. And we still use that tool. But also — and we — look — I said, ‘Look, is it possible to conduct this program under the old law?’ And people said, ‘It doesn’t work in order to be able to do the job we expect us to do.'”
It was a startling response. Bush asked “people” — it’s not entirely clear who — whether he could conduct this domestic surveillance under FISA. Bush acknowledged that these people said he could not, because “the old law…doesn’t work.” But here’s the thing: there is no new law, just “the old law” that the president decided he no longer wanted to follow.
Today, Mike McConnell, the Director of National Intelligence, wrote a WaPo op-ed arguing that the “old law” just isn’t good enough anymore.
FISA was created to guard against domestic government abuse and to protect privacy while allowing for appropriate foreign intelligence collection. Technology and threats have changed, but the law remains essentially the same. If we are to improve our ability to protect the country by gathering foreign intelligence, this law must be updated to reflect changes in technology and the ways our adversaries communicate with one another. […]
In seeking to update the law, in response to bipartisan congressional requests, the intelligence community is keeping faith with the foundation of credibility and legitimacy in which the law was grounded. Just as Congress in 1978 could not have anticipated today’s technology, we cannot know how technology will advance in the next 30 years. Our job is to make the country as safe as possible by providing the highest possible quality intelligence available. We should not tie the nation’s security to a snapshot of outdated technology.
At first blush, this doesn’t sound particularly troubling. Times change, enemies adapt, and technology advances, so it’s not unreasonable to think lawmakers might want to take a fresh look at FISA.
The problem, of course, is that McConnell left out a few details. In fact, he left out all details.
First, as Glenn Greenwald noted, McConnell argued, “The failure to update this law comes at an increasingly steep price.” But therein lies the rub: the law has been updated. Many, many times. FISA may have been passed nearly three decades ago, but it’s been amended repeatedly to adapt to evolving threats and circumstances. McConnell overlooks this altogether. How convenient.
Second, as Kevin Drum noted, McConnell insists FISA needs to be changed, without telling us what kind of changes he’d like to see. “McConnell’s op-ed is a masterpiece of vagueness, distinguished more by what it doesn’t say than by what it does,” Kevin explained. “Most notably, in the course of 600 words he never says what kinds of changes he’d like to see in the law. In fact, he never so much as hints at it.”
Third, McConnell argued, “In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.” This is wildly misleading — FISA applies if one of the participants in, say, a suspicious phone call, is in the United States. If we’re dealing with communications between “foreigners suspected of terrorist activity,” and none of them are on U.S. soil, FISA doesn’t apply anyway.
And fourth, the real issue here, which McConnell sidesteps entirely, is that the president has ignored the FISA law because he believes he should. If McConnell and the administration have some additional recommendations on amendments to FISA they’d like to see, they can go back to Congress, which can hold hearings and consider proposals.
But the White House is apparently under the impression that the law is inconvenient, and therefore irrelevant. As Sen. Chuck Hagel (R-Neb.) noted way back in January 2006, “If [Bush] needs more authority, he just can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law. He needs to come back, work with us, work with the courts if he has to, and we will do what we need to do to protect the civil liberties of this country and the national security of this country.”
If McConnell disagrees, maybe he can write another op-ed on the subject.