Doubts over whether intelligence law update was necessary in German arrests
Nick Juliano
Published: Tuesday September 11, 2007

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Attempting to convince Congress to make permanent updates to a US surveillance law, the nation's top intelligence official said the government's expanded spy powers contributed to German terror arrests this month. But some doubt whether the investigation hinged on the newly approved warrantless wiretapping authority.

Director of National Intelligence Mike McConnell credited updates to the Foreign Intelligence Surveillance Act, which were approved by Congress in August, with allowing the United States to obtain information that led to the arrests of three Islamic militants suspected of planning attacks in Germany.

"I am deeply skeptical about anything the DNI asserts these days--he's already shown his willingness to manipulate to get what he wants. And the fact is that under FISA as it existed for more than 30 years, before he gutted it last month, the NSA could monitor calls between two foreigners in foreign countries without warrants," Lisa Graves, deputy director of the Center for National Security Studies, told RAW STORY via e-mail, noting that the main impact of the expansion was to allow warrantless wiretapping of Americans' conversations with targets abroad. "In my view, McConnell has lost substantial credibility--he's Dick Cheney's pointman on rewriting U.S. surveillance laws to the detriment of our constitutional rights."

A government official who was briefed on the arrests cast doubt on McConnell's assessment. The official, who requested anonymity to discuss classified information, told the New York Times that information leading to the arrests was collected last year, before the law was updated.

Until Congress passed a temporary expansion of the FISA law -- just hours before lawmakers went on a month-long recess in early August -- intelligence agencies were required to seek warrants to monitor at least some phone calls and e-mails between foreign suspects when the communications were routed through the United States.

The update expires in five months, and McConnell's remarks "were an important part of the Bush administration's intensifying effort to make permanent the new law," reported Eric Schmitt in the Times.

German officials have backed the US official's account and said US intercepts of e-mail messages and telephone calls between Germany and Pakistan and Turkey last year tipped them off to the plot, the Times reported.

A German federal prosecutor, Monika Harms, said authorities were involved in an "intense, six-month investigation," the International Herald Tribune reported when the suspects were arrested.

At a hearing of the Senate Homeland Security and Governmental Affairs Committee Monday, Sen. Joseph Lieberman, the committee's chairman, asked McConnell whether "the newly adopted law facilitated (surveillance of the German suspects) during August?"

"Yes, sir, it did," McConnell said. "The connections to al Qaeda, the connections specifically to what's referred to as IJU, the Islamic Jihad Union, an affiliate of al Qaeda. Because we could understand it, we could help our partners through a long process of monitoring and observation. ... And so at the right time, when Americans and German facilities were being targeted, the German authorities decided to move."

When Congress returned after Labor Day, Democrats pledged to revisit the FISA updates they had passed, and many called for a permanent fix to include extra protections for Americans' civil liberties. Privacy and civil liberties advocates have said they fear that Congress will be unable to roll back any of the expanded powers granted to the Bush administration.

In his testimony, McConnell said "50 percent of our ability to track, understand and know about these terrorists" would be lost without the FISA expansion, and he called for liability protections for telecommunications companies that assist US spying efforts.