Intelligence Chief Decries Constraints

By Walter Pincus
Washington Post Staff Writer
Wednesday, May 2, 2007

Court orders in January that brought President Bush's warrantless terrorist surveillance program under existing law have limited the intelligence that agencies can collect, Director of National Intelligence Mike McConnell told a Senate committee yesterday.

"We are actually missing a significant portion of what we should be getting," McConnell said during an unusual public session of the Select Committee on Intelligence on the administration's proposal to update the Foreign Intelligence Surveillance Act of 1978 (FISA).

The intelligence collection program was secretly instituted under presidential authority shortly after the Sept. 11, 2001, attacks and was disclosed by the news media in December 2005. It permitted warrantless intercepts of telephone calls and e-mails between the United States and locations overseas if one participant was believed to be a member of al-Qaeda or an associated terrorist organization.

In January, the administration agreed to bring the program under the oversight of the secret FISA court, which approves warrants in terrorism and espionage investigations. That reversed Bush's position that he had the authority to order the program on his own. In a January letter to some lawmakers, Attorney General Alberto R. Gonzales said the administration was satisfied the new arrangement would have the "speed and agility" to protect the nation from terrorists.

Yesterday, McConnell and other intelligence officials said that the new FISA oversight has been implemented. They justified the new proposal as necessary to expand the information that can be collected by the National Security Agency, which runs the surveillance program.

When Sen. Carl M. Levin (D-Mich.) asked McConnell whether the current FISA court orders that govern the interceptions "are not sufficient for what you want them to be," the intelligence chief replied: "We are missing things."

Sen. Christopher S. Bond (R-Mo.), the panel's vice chairman, said flatly that the NSA is missing "vital intelligence."

Senators on both sides of the aisle raised questions about the administration's proposed changes to existing laws. A key revision would shift the focus of warrants from the means of communication and where the interception is to take place to who the subject of the surveillance is.

Another provision that attracted interest would relieve telecommunication companies from liability for cooperating with the initial surveillance program or, under the proposed approach, if they were ordered by the attorney general to turn over customer information without a FISA court warrant.

Democrats on the committee made clear that they want a revised surveillance law that would prohibit future presidents from initiating another warrantless intercept program based on the constitutional authority to protect the nation, as Bush did.

"There is nothing in this bill that confines the president to work within FISA," said Sen. Dianne Feinstein (D-Calif.).

Lawmakers also raised questions about a provision that would allow the government to retain "significant intelligence information" taken in the search of a U.S. citizen's home if a FISA warrant permitting the search is later denied. FISA allows FBI agents to surveil a subject for a short period on an emergency basis before seeking a warrant, but if the warrant is denied, current law allows the retention only of information involving imminent death or harm.

The FISA court almost never turns down a warrant request. Data for 2006 show that it signed off on 2,176 warrants, the Associated Press reported yesterday. One application for a warrant was denied in part, and 73 required changes before being approved.

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