Revising FISA

REVISING FISA….Mike McConnell, director of national intelligence, is unhappy with the current state of the FISA statute, which was enacted 30 years ago to provide a legal framework for the use of eavesdropping by the federal government:

FISA was created to guard against domestic government abuse and to protect privacy while allowing for appropriate foreign intelligence collection. Technology and threats have changed, but the law remains essentially the same. If we are to improve our ability to protect the country by gathering foreign intelligence, this law must be updated to reflect changes in technology and the ways our adversaries communicate with one another.

McConnell’s op-ed is a masterpiece of vagueness, distinguished more by what it doesn’t say than by what it does. Most notably, in the course of 600 words he never says what kinds of changes he’d like to see in the law. In fact, he never so much as hints at it.

He also fails to mention that George Bush can recommend legislation to modify FISA anytime he wants. In the six years since 9/11 he hasn’t done so. This is an odd state of affairs if FISA is as antiquated as McConnell says. [UPDATE: This isn’t quite true. See below.]

He’s also disturbingly open-ended. “We cannot know how technology will advance in the next 30 years,” McConnell says. “Our job is to make the country as safe as possible by providing the highest possible quality intelligence available. We should not tie the nation’s security to a snapshot of outdated technology.” Suggesting that FISA should be updated after 30 years on the books is fair enough, but going on to suggest that it needs to be updated in such a wide ranging way that it will never need to be updated again is another thing entirely. That would almost inevitably produce a law so broad as to be virtually useless.

And then there’s this: “In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.” But what McConnell doesn’t say is that this happens only when (a) an American is on the other end of the line or (b) the conversation is being routed through a domestic switch and the only way for NSA to get hold of it is to monitor all the traffic, both domestic and international, going through the switch. That puts a different spin on things, doesn’t it?

I’m willing to consider changes to FISA. McConnell is right that it’s three decades old and could use an update to address changes in technology. But all he’s offering here is a pig in a poke, a deliberately hazy recommendation that the law be changed to allow the intelligence community to monitor just about anything it wants without any serious oversight at all. That’s just not going to fly anymore. If he wants to be taken seriously, he needs to tell us exactly what’s wrong with FISA and exactly how he wants to change it. Then we can sit down and talk.

UPDATE: Glenn Greenwald points out that, in fact, FISA was modified as part of the passage of the PATRIOT Act in October 2001. Since then, however, George Bush has turned down every opportunity to amend it further.