Director of National Intelligence Mike McConnell has previously said only about 100 Americans have been "targeted" for electronic surveillance, and he emphasized at a hearing here Tuesday that none of that eavesdropping has occurred without a court order. Doing so would be illegal, he added.
But when pressed by House of Representatives Judiciary Committee Chairman John Conyers (D-Mich.) and other Democrats to estimate how many Americans who weren't necessarily "targets" have had their communications scooped up through the government's surveillance efforts, McConnell couldn't say.
"I don't have the exact number," McConnell replied, adding, "It is a very small number considering that there are billions of transactions everyday." He said he would look into getting that number and brief the committee in a non-public session.
The sworn testimony from McConnell came as the Bush administration kicked off a new push in Congress for permanent expansion of warrantless-wiretapping powers, drawing skepticism from Democrats and more vocal sympathy from Republicans. McConnell is also scheduled to appear before the House Intelligence Committee on Thursday and the Senate Judiciary Committee next week. And President Bush plans to visit the National Security Agency's Maryland headquarters on Wednesday to get an update on how they have been using the temporary law, White House spokeswoman Dana Perino said.
Before leaving for the August recess and under intense pressure from the White House, Congress approved the, a highly contentious temporary law that amends a 1978 wiretapping law known as the Foreign Intelligence Surveillance Act (FISA).
The White House has been fighting for permanent legal changes because it argues recent interpretations of the earlier version of FISA have hamstrung efforts to snoop on foreign terrorists. Set to expire six months after its passage, the Protect America Act dropped a requirement that investigators obtain a secret warrant before intercepting phone conversations and e-mails that pass through the United States, provided that they "concern" foreigners.
The Bush administration says that's consistent with the intent of FISA, which was to allow surveillance of foreigners without a warrant. But civil liberties advocates and many Democrats say the changes have gone too far and are worded broadly enough to allow the government to monitor domestic phone calls and e-mails without a warrant.
There's generally no disagreement that listening in on conversations between foreigners doesn't require a warrant under U.S. law, but "the administration wrote their bill so broadly and loosely that 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," Conyers said Tuesday.
Committee Ranking Member Lamar Smith (R-Texas), by contrast, said the changes make sense and called for enactment of all the Bush administration's proposals, which date back to April. "Requiring a court order for every phone call from a foreign target to a person inside the United States is contrary to FISA and common sense," he said.
Republicans on the committee repeatedly attempted to demonstrate the importance of the legal changes. For instance, if Osama bin Laden was making a phone call to someone outside the country, say, from a hotel in Florida, then U.S. investigators wouldn't be allowed to snoop on his conversation without getting a warrant, McConnell confirmed in response to a question from Rep. Trent Franks (R-Ariz.).
If Congress reverts to the original interpretation of FISA, "we'd lose about two-thirds of our capability and we'd be losing steadily over time," McConnell said. (That conflicts with
McConnell and Assistant Attorney General Kenneth Wainstein also spoke again of the need to immunize telecommunications companies that "allegedly" assisted the government in their surveillance operations. The Protect America Act offers that immunity going forward but doesn't apply to relationships that may have existed before the law was passed in August.
But some Democrats questioned what exactly the telephone companies need protection from.
"If no one has done anything illegal, it's not clear to me why we need to immunize past behavior," said Rep. Zoe Lofgren (D-Calif.). "And it seems to me that at a minimum, if we are going to do that, we ought to know specifically what the behavior it is that we are immunizing."
McConnell said he would be willing to offer more details on that front in a "closed session."