Even at this late date, it’s not clear why FISA needs to be amended. The administration said it violated the law for years because it could not conduct the surveillance necessary to prevent terrorist attacks while complying with FISA’s warrant requirements. But in January 2007, Gonzales suddenly announced that the irresolvable conflict somehow had been resolved and that all anti-terrorist surveillance thenceforth would be conducted in compliance with FISA.
A few months later, what had been impossible and then briefly possible became impossible again, supposedly because of a secret ruling by the Foreign Intelligence Surveillance Court. According to the administration, a judge on the court interpreted FISA as requiring a warrant for surveillance of foreign-to-foreign communications that happen to pass through U.S. wires.
“International communications are on a wire, so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that,” Director of National Intelligence Michael McConnell told the El Paso Times in August. “If it were wireless, we would not be required to get a warrant....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.”
It’s hard to see how a judge could have interpreted FISA this way. But even if one did, the administration has never explained why this decision (which it inexplicably did not appeal) required Congress to authorize warrantless surveillance of communications that not only traverse U.S. wires but involve people in the United States.
Instead the administration has obscured the breadth of the powers granted by the Protect America Act. In the El Paso Times interview, McConnell falsely asserted that the communications at issue are “all foreign to foreign.”
The administration has contradicted itself even on the question of how urgently needed the FISA changes are. Last summer they were so crucial to national security that McConnell claimed pausing to debate the issue meant “some Americans are going to die.” More recently, Bush has threatened to let these absolutely essential powers lapse by vetoing extension bills that do not meet his specifications.
An administration that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot be trusted to exercise those powers in secret.