Monday, May 21, 2007
comes as no surprise we're destabilized:
Even directors of national intelligence need to fear the passive voice. Mike McConnell on adapting FISA to the post-9/11 world:
Because the law has not been changed to reflect technological advancements, we are missing potentially valuable intelligence needed to protect America.
To review: after September 11, the intelligence community and the Bush administration considered FISA too cumbersome for surveillance purposes. The administration enjoyed a political moment in which it could have passed through congress nearly any change in law it wished, no matter how dramatic a departure they represented, as evidenced by the administrative subpoena and national-security-letter provisions of the Patriot Act. Instead, it resisted efforts in 2002 to make FISA warrants easier to acquire, preferring to bypass FISA entirely, and to bypass those -- the FISA Court, James Comey, John Ashcroft -- who would have or who would eventually see that as... problematic. When the New York Times exposed the warrantless surveillance program, the administration spent a year contending that it was impossible to fit the program within FISA, only to reverse itself completely in January. That's what's cost us, in McConnell's words, "potentially valuable intelligence needed to protect America."

What's most interesting in McConnell's op-ed is that he may have found a way to square the circle. Explicitly, he's calling for congress to update FISA -- which mandates court orders for domestic surveillance -- but what he appears to have in mind is for the law to include opt-out clauses for acquiring warrants. For instance:
We simply cannot predict how communications technology will change in the coming years, but these changes may widen the gap between the law and technology. We need to adopt that understanding into FISA -- a law that does not address today's global systems in today's terms.
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 We should not tie the nation's security to a snapshot of outdated technology.
Prudential warning or invitation to further abuse? McConnell never specifies what he means here, so it's difficult to evaluate the merits of his case. Perhaps he means expanding the 72-hour grace period for after-the-fact court orders in the most crucial surveillance cases. Or he may mean something else entirely. Few would argue that FISA shouldn't keep pace with technological advances. But the solution there is to update FISA as the need arises, which doesn't exactly jibe with McConnell's subtext of creating a law broad enough to cover unanticipated technological progress. We'll see what this means as the FISA debate advances.

UPDATE: Correction appended. Thanks to Glenn Greenwald and Kevin.
--Spencer Ackerman