The nation’s top intelligence official has confirmed that a federal court did rule the Bush administration’s warrantless wiretapping program was in violation of the law, prompting the mad rush in Congress this month to overhaul key espionage provisions.
In an interview with a Texas newspaper, Director of National Intelligence J. Michael McConnell also disclosed that the number of people in the United States who are under surveillance by the nation’s spy services is “100 or less,” a figure he said showed that the government was not engaged in widespread spying on Americans.
His comments represent an exceedingly rare public description of one of the nation’s most closely guarded and controversial espionage operations. Many of the details he described -- such as the deliberations of the special intelligence court and the scope of the surveillance operation -- are usually considered classified.
McConnell was interviewed by the El Paso Times after addressing a border security conference in the city Aug. 14. On Wednesday, the newspaper posted a transcript of the interview on its website at www.elpasotimes.com/news/ci_6685679.
The Foreign Intelligence Surveillance Court’s adverse ruling earlier this year delivered a major blow to U.S. spying operations, McConnell said, even as intelligence analysts were expressing growing alarm that the Al Qaeda terrorist network was regrouping.
“We found ourselves in a position of actually losing ground,” he said.
McConnell said the ruling came during a routine review of the program by the court, commonly known as the FISA court because it was created by the Foreign Intelligence Surveillance Act.
Initially, he said, one of the judges on the 11-member panel supported the government’s position and ruled that individual warrants were not needed to intercept communication between two people overseas whose e-mails or calls happened to travel through data networks inside the United States.
But in a subsequent review, a second judge took a different position.
“The second judge looked at the same data and said, ‘Well, wait a minute. I interpret the law, which is the FISA law, differently,’ ” McConnell said.
The decision meant that the government had to get a court order to trace calls or e-mails that traveled on networks inside the United States, even if the parties at both ends were overseas.
The government obtained a temporary stay allowing it to continue intercepting e-mails and phone calls without individual warrants through May 31, McConnell said, as he began sounding alarms on Capitol Hill that a key piece of the nation’s counter-terrorism capabilities was about to be crippled.
Those warnings fueled a frantic, end-of-summer push in Congress to rewrite laws passed three decades ago, after U.S. intelligence agencies had been caught spying on student groups and other domestic targets. The emergency legislation, which is set to expire in six months, allowed the government to resume its eavesdropping operations without individual warrants.
But the changes, and the hurried atmosphere in which they were adopted, have prompted many Democrats to express misgivings about the revisions. They have pledged to revisit the issue next month after Congress returns from its August recess.
In defending the wiretapping program, McConnell went further than any public official has in describing its scope and the extent to which it sweeps up communications of people within U.S. borders.
“There’s a sense that we’re doing massive data mining,” he said, referring to the practice of searching for suspicious content by combing through calling data surrendered by telephone companies. “In fact, what we’re doing is surgical. A telephone number is surgical. So, if you know what number, you can select it out.”
McConnell’s statement suggests that the government, which has access to most major telecommunications networks inside the United States, pulls out for review only the contents connected to phone numbers that are already under suspicion for ties to terrorism or other foreign intelligence priorities.
Critics of the program have questioned whether that is indeed the case and what safeguards are protecting U.S. residents from abuse of privacy rights.
McConnell said the nation’s spy agencies obtained warrants any time they targeted someone inside U.S. borders. “It’s a manageable thing,” McConnell said. “On the U.S. persons side, it’s 100 or less.”
On the “foreign side,” he said, “it’s in the thousands.”
Because so many of these calls travel through networks in the United States, McConnell said, the FISA court ruling created a significant new burden: Putting together a FISA warrant required “about 200 man-hours to do one telephone number.”
McConnell said that he was generally satisfied with the revisions Congress passed but that he believed further changes were necessary to protect telecommunications companies from liability for sharing access to their networks with U.S. spy agencies -- particularly the National Security Agency, which eavesdrops on phone calls and e-mails around the globe.
McConnell rejected criticism that the Bush administration had used scare tactics to push for the FISA revisions or that he had misled congressional Democrats, who complained that he backed out of a deal on a more moderate legislative package.
Even as he disclosed new details about the espionage programs, McConnell made criticisms that the public debate has given Al Qaeda and other organizations insight into U.S. eavesdropping operations.
“The fact that we’re doing it this way means that some Americans are going to die,” he said. But because of the “claim, counterclaim, mistrust, suspicion” surrounding the program, he said, “the only way you could make any progress was to have this debate in an open way.”