I’ve been saying this for some time: The FISA laws from the 1970s is obsolete. The technology it regulated is now antiquated and no longer used. FISA did not even cover non-state actors which we face today. The end result is an absurdity where the NSA requires warrants from FISA courts to spy on Pakistani Taliban members in Pakistan. This has nothing to do with protecting Americans.
El Paso Times interviewed National Intelligence Director Mike McConnell about the difficulties FISA poses for counterterrorism.
FISA was written back when electronic surveillance involved placing physical listening bugs in telephone lines and such. Internet and new telecom technology changed everything. The NSA can listen in on cell-phone conversations and emails from Pakistan. The problem is a lot of the communications pass through American servers. The NSA has to collect information, request a FISA warrant, then access the American servers to listen in on foreign communications. This is just weird and FISA was not intended to stop or slow down spying on foreigners.
There are only a few FISA Courts and there’s a log jam of intelligence that needs immediate warrants. Signals intelligence is more widespread than ever and FISA cannot handle the workload. Some wonder if it even should, since no one is spying on American citizens.
Q: Can’t you get the warrant after the fact?
A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven’t done that in wireless for years.
Q: So you end up with people tied up doing paperwork?
A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it’s foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it’s a very complex process, so now, I’ve got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you’ve got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We’re going backwards, we couldn’t keep up. So the issue was …
Q: How many calls? Thousands?
A: Don’t want to go there. Just think, lots. Too many.
Q: And this is still all foreign to foreign communication?
A: All foreign to foreign. So, in the final analysis, I was after three points, no warrant for a foreigner overseas, a foreign intelligence target located overseas, liability protection for the private sector and the third point was we must be required to have a warrant for surveillance against a U.S. person.
Simply, NSA cannot follow up on al-Qaeda leads without warrants, as if Al-Qaeda members are US citizens. It’s strange. This would be rectified immediately if we had a Democratic President, but the current Congress prefers to play partisan games by attacking Bush rather than updating the law. I wish partisanship played no role in the FISA debate, but it does, and it damages security interests.