McConnell's "Fewer Than 100 Americans" Wiretap Comment

Marty Lederman points out the problem with this statement of National Intelligence Director Mike McConnell to the El Paso Times:

There's a claim of reverse targeting. Now what that means is we would target somebody in a foreign country who is calling into the United States and our intent is to not go after the bad guy, but to listen to somebody in the United States. That's not legal, it's, it would be a breach of the Fourth Amendment. You can go to jail for that sort of thing. And If a foreign bad guy is calling into the United States, if there's a need to have a warrant, for the person in the United States, you just get a warrant. And so if a terrorist calls in and it's another terrorist, I think the American public would want us to do surveillance of that U.S. person in this case. So we would just get a warrant and do that. It's a manageable thing. On the U.S. persons side it's 100 or less. And then the foreign side, it's in the thousands. Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical. A telephone number is surgical. So, if you know what number, you can select it out. So that's, we've got a lot of territory to make up with people believing that we're doing things we're not doing. (my emphasis)

Marty correctly, in my view, points out: More...

The most important point is that McConnell's "fewer than 100" comment did not include all of the communications of U.S. persons that are intercepted when the surveillance is "directed at" someone overseas. Under the new law, the NSA would have the authority to intercept virtually all communications made by anyone overseas (not only suspected terrorists), as long as it could in some sense say that its surveillance was "directed at" that overseas person. This means, of course, that even if the NSA does not directly tap into every phone and computer in the U.S., the NSA could still intercept and maintain all international communications of U.S. persons, because each of those communications is, of course, with someone overseas -- and the NSA can freely intercept the latter's communications, based on no standard at all.

I would explain it this way: While there may be fewer than 100 Americans whose phones are wiretapped for intelligence purposes with a FISA court warrant, that doesn't mean there aren't thousands more whose conversations are being listened to because they happen to be talking to someone in a foreign country whose phone is tapped without a warrant. The FISA Amendment allows that and increases the likelihood it is happening.

As Marty says, it could be his conversation with a foreign scholar.

Even assuming arguendo that the new statute would not allow the NSA to tap my phone and computer without court order in order to glean information about my foreign correspondents, it remains the case that under the Act the NSA could intercept all of the communications of that foreign scholar, based on no showing at all -- indeed, could make such interceptions of the foreign scholar because it is interested in the activities of Americans with whom she deals -- and could thereafter read, maintain and use all of the communications she makes with persons here in the U.S. And this is true with respect to the communications of every single person in the world who is "reasonably believed" to be overseas.

As LNILR and I pointed out, it could be a criminal defense lawyer interviewing an overseas witness in one of our cases.

That's where minimization comes in and why it's so important. If after a short period of time, the conversation is not pertinent to the matter under investigation they must cease listening. In a Title III criminal wiretap, if the conversation is between the person being investigated and his lawyer, it's privileged and they can't listen.

More questions from Marty:

The key question is what happens when the NSA surveillance of foreigners -- possibly even vast surveillance of huge numbers of overseas communications -- invariably picks up communications that have a U.S. person at one end. Can the NSA listen to (or read) the U.S. person's communications? Can it maintain those? Can it share them with other government agencies? Make particular uses of them (i.e., for criminal investigations)? Does it have to satisfy any standards in order to do any of those things? Does it have to make any showing to a court with respect to any of those uses of U.S.-person communications? Is there congressional oversight? Does the Fourth Amendment impose any limits on such uses? Does the new statute supersede, and render inapposite, the existing internal Executive branch orders (e.g., USSID-18), which at least imposed minimal "minimization" requirements with respect to such foreign-to-domestic communications?

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    What A Load (5.00 / 2) (#1)
    by squeaky on Thu Aug 23, 2007 at 12:34:36 PM EST
    In other words just trust me.... remember this:
    A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act.

    "Everybody who heard him speak recognized the absolute, compelling necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the intelligence panel, said later of the closed session.

    Democrats agreed. "At that time, the discussion changed to 'What can we do to close the gap during the August recess?' " said a senior Democratic aide who declined to be identified because the meetings were classified. As delivered by McConnell, the warnings were seen as fully credible. "He's pushing this because he thinks we're in a high-threat environment," the senior aide said.....

    ....McConnell deemed its [democratic proposal] fine print unacceptable, however, and in the end, it was the Republican bill, a near-copy of his proposal, that passed both chambers of Congress.


    Still no oversight. These guys are not about to stop lying.

    100 or less? Really? (5.00 / 1) (#2)
    by TomStewart on Thu Aug 23, 2007 at 05:33:50 PM EST
    Prove it.

    And this is the enhanced FISA Amendment? (none / 0) (#3)
    by Edger on Thu Aug 23, 2007 at 05:49:51 PM EST
    Enhanced over what? Over this?
    [John Bolton] told Congress that since 2001 he had asked the NSA on 10 different occasions to reveal to him the identities of American citizens who were caught in the NSA's raw intelligence reports in what appears to be a routine circumventing of the rules governing eavesdropping on the American public.

    The State Department asked the NSA to unmask the identities of American citizens 500 times since May 2001.

    Newsweek revealed earlier this year that the NSA disclosed to senior White House officials and other policymakers at federal agencies the names of as many as 10,000 American citizens the agency obtained while eavesdropping on foreigners. The Americans weren't involved in any sort of terrorist activity, nor did they pose any sort of threat to national security, but had simply been named while the NSA was conducting wiretaps.

    If they gave me access to that much data I would (5.00 / 1) (#5)
    by JSN on Thu Aug 23, 2007 at 07:42:56 PM EST
    probably mine it just out of curiosity. If I thought I might find a terrorist and save some lives I would be very strongly motivated to mine the data. But I would be very lucky indeed if I found a hundred terrorists on the first try.

    answering one of Marty's questions (none / 0) (#4)
    by scribe on Thu Aug 23, 2007 at 06:09:43 PM EST
    He asks:  
    Does the new statute supersede, and render inapposite, the existing internal Executive branch orders (e.g., USSID-18), which at least imposed minimal "minimization" requirements with respect to such foreign-to-domestic communications?

    The plain text of the statute begins with the language:  

    "Notwithstanding any other law...."

    That language sweeps everything that was there before (or after, so long as this act exists), to the side.  In other words, this New FISA is the King of all laws on the subject and will be until repealed or sunsetted.  

    Note that they did not use the other, more common statutory language:  "notwithstanding any law to the contrary..."  This is quite a deliberate choice;  I'm sure those 20 lawyers working for two years had a number of meetings on this choice of language alone, and an extended discussion and memo-writing on it.  The language they did not choose recognized the validity of other laws, and left them in place.  The language they chose, does not.

    Arguably, it's even an implied repealer of a whole plethora of statutes, like the criminal wiretap statutes, for example.  

    Since, I suppose, Executive branch orders are treated as administrative rules/regulations and therefore as laws, the short answer to Marty's question quoted above is:  "yes".