Director of National Intelligence Mike McConnell appeared on Fox News Sunday today to address the expiration of the Protect America Act this weekend. He also discusses the assassination of Imad Mugniyah and whether there are known al Qaeda cells in the US.
WALLACE: I want to get into all of those in a moment, but let me ask you a specific question, because as you know, there’s kind of a general issue here.
The president, in a clip we played at the top, said that the country is now more in danger of attack. Here’s what leading Democrats are saying, and let’s put it up.
House Majority Leader Steny Hoyer says, “The president’s comments are wrong, divisive and nothing but fear-mongering.” Senator Ted Kennedy says, “The DNI’s,” that’s you, “The DNI’s latest comments show yet again the shamelessness of the administration’s tactics.”
Question: Is the White House making the situation sound worse than it really is?
MCCONNELL: Chris, President Bush is repeating advice that I’m giving him. As you know, I am not a political figure. I am a professional. I’ve been doing this for 40 years.
And our situation now, when the terrorist threat is increasing because they’ve achieved — Al Qaeda’s achieved de facto safe haven in the border area of Pakistan and Afghanistan — the threat is going up.
And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture their communications to thwart their planning.
WALLACE: Well, let me ask you about that. We’ll get to the telecoms in a moment. Let me ask you first, though, as you pointed out at the beginning, under the law that was passed in August, you had the ability, and you exercised that, to issue orders that allowed you to monitor terrorism suspects — communications involving alleged terrorist groups.
The law has expired as of midnight. But those orders to monitor are valid for a year, so they stay on the books and allow you to monitor them till at least August.
And the argument the Democrats make is that if there’s somebody new that springs up, some new group that you haven’t already covered, that you can go after them over old existing law. So they argue you haven’t lost any operational capability.
MCCONNELL: Chris, last summer we were in extremis, because we had lost under the old law about two-thirds of our capability.
The issue is it’s very dynamic, and the FISA court had ruled…
WALLACE: When you say dynamic, you mean that new groups are springing up, new possible targets?
MCCONNELL: New information, new personalities, new methods of communicating.
So when the program was returned to the FISA court in January of ’07, initially we had coverage that we had asked for, but over time, because technology had changed and the law of ’78 — it had not been changed, because technology had gone from a wireless world to a wired world.
Foreigners communicating in a foreign country — more than likely the communications would pass through the United States. Therefore, the court said if it touches a wire, consistent with the law, you have to have a warrant.
Now, a warrant means probable cause, which is a very time- consuming process to go through. So we were in that situation last summer. We passed the new act to make it — improve our situation. That act has now expired.
WALLACE: Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity?
Again, the Democrats would say, “Look, if the cooperation is legal, they don’t need legal immunity.”
MCCONNELL: Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel — compel — support from a private carrier. That’s now expired.
So we can make an argument to a court but, you see, that makes my point. If I’m in court arguing for an authorization, then I’m missing a dynamic situation.
McConnell is, as he says at the top of this clip, not a partisan hack as the Democrats often portray him. He’s an intelligence pro who has 40 years of experience, working for both Republican and Democrat administrations. The Democrats characterizing him as a partisan are aware of his history and yet they’re misstating it. What else, then, are they misstating? Pretty much everything.
As of midnight this morning, intelligence gathering powers are now back to where they were before the Protect America Act was passed in August 2007. At that time, according to McConnell, we had lost about two-thirds of our overseas collection capacity because of the FISA court ruling which, for the first time in history, required court authorization for monitoring foreigners outside the U.S. who contact other foreigners outside the U.S.
The Protect America Act reversed that ruling for six months. It is now expired. We cannot collect on new targets overseas without going to the FISA court and showing probable cause that the target is an agent of a foreign power. As foreigners outside the U.S. have no U.S. legal protection (or at least didn’t until the FISA court ruling), and as the federal courts have no jurisdiction outside the U.S., we are not supposed to have to make any showing whatsoever to collect intelligence overseas.
When you go from no restrictions to no collection absent probable cause, that represents an enormous drop off in capacity. It’s that simple. Democrats who claim that people like McConnell are engaged in partisan fear-mongering are talking nonsense. And as McConnell noted this morning, every day we don’t fix this problem, the problem — the investigative leads you don’t get, the connections you don’t make, the things you don’t learn but which you should know — metastasizes.
To listen to the Democrats on this is to hear tales of the US government spying on US citizens without warrants for no good reason, but the truth is much more complex: The government has used the technological position that the US is in to listen in on terrorists overseas communicating with each other and with possible contacts and operatives within the US. The expiration of the Protect America Act puts us back to a 9-10 world. We all know how that turned out.