Last week Mike McConnell, director of national intelligence, recanted an assertion he made before Congress that a recently strengthened surveillance law helped foil a jihadist plot to attack American targets in Germany.
Yesterday, he was back on Capitol Hill before the House Judiciary Committee, defending the need for Congress to make permanent the amendments of the Protect America Act to the Foreign Intelligence Surveillance Act (FISA), which makes it easier to eavesdrop on foreign enemies of the United States.
The intelligence communities expanded surveillance powers are set to expire in February 2008.
The original intent of FISA was to set up procedures requesting judicial authorization to conduct electronic surveillance on persons engaged in espionage or international terrorism against the United States for a foreign power while inside the country. The law excluded surveillance operations against targets outside the United States, even when the target was communicating with an American.
But technology change has brought new problems.
When FISA was originally passed in 1978, McConnell argued, almost all local calls were transmitted on a wire, whereas international communications were in the air or "wireless." Therefore the law defined "in-wire" communications as electronic surveillance and stipulated that intelligence agents get judicial approval before conducting surveillance because the communications were inside the United States.
Today, that situation has reversed itself: most local communications are wireless and most international communications are sent by fiber optic cables. This means the intelligence community has access to local communications the original law barred them from while making it unnecessarily hard to get at communications necessary to conduct the foreign surveillance the law allows.
"We were not collecting...important foreign intelligence information because, due solely to changes in technology, FISA would have required that we obtain court orders to conduct electronic surveillance of foreign intelligence targets located outside the United States," he said.
According to McConnell, the Protect America Act, which amended FISA, modernized the law and restored its original intent: to spy on foreign enemies of the United States while protecting Americans' privacy rights.
The new law now allows the intelligence community to conduct surveillance, without a court order, if the foreign person targeted is reasonably believed to be outside the United States.
Some members of Congress are still skeptical.
House Judiciary Committee chairman John Conyers calls the administration-crafted measure too broad, asserting it gives the government too much power. "It permits the government to intercept any and all electronic communications from U.S. citizens to anyone even thought to be abroad at the time. This would include reporters, elected officials and political enemies of the administration, for example," he said.
McConnel also ensured committee members that the intelligence community would not engage in "reverse targeting" —targeting an American by saying they were targeting a foreigner outside the United States.
"Let me be clear on how I view reverse targeting: it is unlawful."
McConnell bristled at the accusations he had exaggerated threats to the United States to justify modernizing FISA.
"Allow me to dispel that notion," he said. "The threats are real, and they are serious."
McConnell then summarized the key findings of July's National Intelligence Estimate on the terrorist threat to the United States and reminded the hearing that FISA isn't only meant for terrorists, but also includes secret intelligence activities of foreign nations and their agents.