by Shane Harris
Not quite. Five months later, in May, those innovative orders came up for a planned review, but this time with another judge from the eleven-member panel. And unlike the first judge, who had given the administration the latitude it wanted, this one rejected a significant part of the arrangement that had been struck in January. Specifically, he told the administration that whenever it was monitoring communications passing through a piece of equipment in the United States, regardless of who was being targeted, FISA applied. Bush officials were shocked.
The judge had homed in on one of the clearest examples of how outdated the law had become. When FISA was written it didn’t envision the global telecom system of 2007, in which much of the world’s phone call, e-mail, and other telecom traffic moved over equipment based in the United States. A phone call or an e-mail from Pakistan to Turkey probably wound its way through New York. America was the world’s communications hub. That meant the NSA could monitor foreign communications without ever leaving home.
The administration thought it had every right to grab those calls and e-mails without a warrant, as it had been doing under the terrorist surveillance program. And officials had strong arguments in their favor. Some FISA experts, including those who had served in Democratic administrations, had said for years that the capture of purely foreign communications like this didn’t require a warrant. But now a judge had found otherwise. And when he issued his new orders, the intelligence community was cut off from what it considered one of its most dependable and useful streams of intelligence.
McConnell went to the Hill. In classified briefings during June and July, he explained the judge’s ruling to members of Congress. Sometimes in small meetings, and at least once to a packed house of more than three hundred members, McConnell said that foreign-to-foreign collection in the United States had been stopped. The intelligence harvest had plummeted. To explain how this had happened, McConnell would lay out a map of the world overlaid with red lines representing the “pipes” that moved phone and Internet traffic. They all converged on the United States, forming a thick red mass on both coasts. The country looked like a heart, with arteries trailing off into thin capillaries that fed the globe.
The terrorism early-warning system depended on access to those lines. There was no longer a question in McConnell’s mind that FISA had to be fixed immediately. “We’re in extremis,” he told lawmakers.
The judge had issued a thirty-day stay on his ruling, which bought the administration some time to mount a public campaign. On May 21, McConnell published an op-ed in the Washington Post. Without revealing the classified order, he laid out the basic problem: “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 other countries.”
Had McConnell publicly announced that the intelligence community could no longer monitor a huge portion of international communications, terrorists might have tried to exploit that gap. The debate over fixing FISA never questioned that assumption. But changing the law was never about the narrow question of foreign-to-foreign communications. It was about the balance of power, which, as far as many lawmakers were concerned, the Bush administration had abused. They weren’t about to be pressured into a hasty rewrite of the law in the face of dire warnings from the administration. They’d heard this kind of doomsaying before. The administration could always be counted on to exaggerate a threat when it wanted to have its way. The FISA debate was going to move, but slowly.
While the administration cajoled members of Congress, warning that they’d better pass a new law before terrorists struck again, American soldiers fell into the intelligence gap. On May 12, Sunni insurgents attacked an Army unit in central Iraq and captured three men. The NSA set out to locate them by homing in on the insurgents’ phone calls. Analysts thought they’d found the signals, but they had a problem: Lawyers determined that since some of those communications appeared to pass through telecom equipment based in the United States, the government needed a warrant to intercept them.
This was McConnell’s nightmare. It took three days for intelligence officials and Justice Department lawyers to come to some agreement on what the law allowed them to do. They debated the meaning of key parts of the statute and argued over whether the NSA had the authority to conduct the kinds of surveillance that its analysts felt would help locate the soldiers. Justice decided that Attorney General Gonzales had to personally approve surveillance of the insurgents before the NSA could move in.
FISA imagined scenarios just like this, cases when a life-and-death decision had to be made immediately and without normal approvals. Under the law, an agency could begin emergency surveillance and obtain a warrant a short time later. But the lawyers bickered over whether the agencies had met the necessary predicates. It was clear that while the law might come equipped with certain fail-safes, they were so complex and confusing that even the government’s own lawyers couldn’t agree on how to use them.
The body of one soldier turned up floating in the Euphrates River eleven days after he disappeared. The remains of the other two weren’t found for more than a year. Back at the CIA a senior official involved in counterterrorism operations received a report about the condition of the first soldier’s body. His captors had tortured him. He’d been burned, cut, and made to suffer.
It wasn’t widely known within Congress that the new problem with foreign collection had imperiled the search for the soldiers. When it finally did become public, some lawmakers were incensed that the shortcomings of the law might have cost the men their lives. But initially, McConnell failed to mention that the lawyers’ protracted deliberations had kept the clock running. The law had its problems. But so did the bureaucracy. Only after the DNI’s office was forced by Congress to turn over a timeline of the events did the true nature of the breakdown come to light. But by that time McConnell had already burned his bridges with the lawmakers he needed on his side.
Throughout the summer of 2007 the Bush administration pressured lawmakers to reach a compromise on FISA. There was talk of a rise in the number of Al Qaeda threats. A plot against Congress was even detected. Lawmakers were less moved by the administration’s cage rattling than by their own impending summer recess. Democrats were the party in power now, and if they left town without bringing legislation to the floor, they’d expose their weakest flank—national security policy—to withering assault from Republicans. The Democrats were already sensitive to claims that they’d gone soft in the war on terror. If there actually were an attack blamed on gaps in FISA, the Democrats might never recover. Republicans had already been hammering them for months to move on various bills. Now was the time, with the recess only days away.
On July 31, the top Republican in the House gave the Democrats an un-subtle push. Minority Leader John Boehner told Fox News that the FISA Court had handed down a ruling that prohibited the intelligence agencies from “listening in to two terrorists in other parts of the world where the communication could come through the United States.” The ruling itself was classified, and some Democrats tried to claim a tactical victory by asserting that Boehner had irresponsibly revealed secret information. “John should remember the old adage: Loose lips very much sink ships,” said Rahm Emanuel, the chairman of the House Democratic caucus. But plenty of members of Congress had already known about the administration’s legal predicament. The difference now was that the rest of the country knew it too. Democrats had another reason to move quickly.
The next day, McConnell and his staff pulled an all-nighter to get ready for a meeting with the Democratic leadership. The spy chief had three basic requirements for the new law. First, any surveillance of a U.S. person would require a warrant from the FISA Court. (No one in Congress was seriously arguing it should be otherwise.) Second, he wanted to solve the problem with foreign collections in the United States, making clear that the government didn’t need a warrant to monitor those communicat
ions that merely transited American equipment. These first two items were relatively uncontroversial. McConnell’s third demand would be harder to meet.
He wanted guarantees that any companies that had participated in the warrantless surveillance program—and any future surveillance under the new law—would be immune from civil prosecutions. There were already more than three dozen civil lawsuits pending against AT&T and some of the country’s biggest telecom providers, brought by journalists, activists, and phone company customers who claimed that the telecoms had violated their privacy rights in a broad campaign of illegal spying. McConnell knew that without the companies’ participation in surveillance the intelligence community couldn’t do its job. As in the mid-1990s, the spies could find themselves out of the wiretapping business if the companies refused to help them.
On the afternoon of August 2, Silvestre Reyes, the Democratic chairman of the House Intelligence Committee, joined the Senate majority leader, Harry Reid, and other top members of the party in the office of House Speaker Nancy Pelosi. They called McConnell on the phone and gave him their terms on new FISA legislation. They were prepared to allow warrantless surveillance, but it must be restricted to terrorism cases, they said. Also, the lawmakers wanted to set up surveillance guidelines that would determine which kinds of communications between a foreigner and a U.S. person needed a warrant. The Democrats believed they were giving the administration the powers it needed to fight terrorism while preserving some measure of oversight and privacy protections for Americans.
McConnell rejected their ideas. He said he wouldn’t preclude warrantless surveillance of spies and other foreign threats that didn’t fall into the category of “terrorist.” The whole point of rewriting FISA was to make the law more permissive, not more restrictive. McConnell rejected the guidelines too. Those were a nonstarter for the same reasons. That provision also bumped against the very premise of the terrorist surveillance program: If a foreign terrorist were communicating with someone inside the United States that communication was of foreign intelligence value. The government didn’t need a warrant to target the foreigner, regardless of whom he was talking to.
The Democrats had two choices—fight McConnell and deadlock or leave town without action. It was unlikely that they could marshal enough support for a counterplan, since the more conservative wing of the party, known as the Blue Dogs, was itching to vote and was inclined to give the administration the latitude McConnell said it needed. Reyes and the party leaders dropped the terrorism-only provision and the demand for new guidelines.
McConnell had never led political negotiations at this level with the nation’s top lawmakers squaring off against the administration. But here he was. And he was winning. He told the Democrats he’d call back in half an hour with a fresh version of the bill.
In the movie of McConnell’s short life in politics, this was the freeze-frame. The spy chief telling lawmakers he’d get right back to them. The Democrats believing that they’d still get a palatable law. But McConnell was never really suited to the role of high-stakes negotiator. He’d always had trouble sticking to a script, something his press aides learned painfully when he talked off the cuff during speeches. McConnell was never the most articulate speaker. He often truncated his sentences, omitting pivotal words that were necessary to complete the thought. Once he told a group of college students about how the intelligence community had beaten its enemies in the cold war: “We have worked to achieve deep penetration of those who wish us harm.”
McConnell’s remarks were rarely so cringe inducing. Sometimes his words were just indecipherable, as when he told a newspaper reporter about bringing the surveillance program before the FISA Court. “The FISA court ruled presented the program to them and they said the program is what you say it is and it’s appropriate and it’s legitimate, it’s not an issue and was had approval.” Sometimes the listener had to run the words back in his own head just to make sure he comprehended what the man meant. McConnell usually got away with this verbal clumsiness by playing up his homespun South Carolina roots and by reaching into a pocketful of colorful anecdotes about his time in the military. But when one was bargaining with the most powerful people in the Congress, who were already on the defensive, every word counted. Even the slightest misunderstanding could poison the entire negotiation and damage a man’s reputation.
Hours passed after McConnell hung up with the Democrats. Tired of waiting for his call, they phoned his office. McConnell’s assistant said he was on the phone with the White House. That was true, but it was probably too much information given the stakes. She might have stalled some other way. When McConnell finally spoke to the members he said he’d been on the phone with “the other side.” That too was an indelicate turn of phrase, and it put the Democrats on edge.
McConnell told them he’d been in combat in Vietnam, he’d been shot at, but that he’d never felt so much pressure in all his life. Years later McConnell would insist that he meant pressure from Congress. But Reyes, Reid, and the other Democrats thought he meant the White House. To them it was clear what was going on here. Mike McConnell, the supposedly freethinking, nonpartisan intelligence professional, was really a lackey for Bush and Cheney. That suspicion was confirmed when the Democrats looked at the new bill McConnell had sent over. It bore almost no resemblance to the compromise they thought they had struck earlier in the day. It seemed obvious that the White House had gotten hold of the legislation and changed it.
This new law would give extraordinary power to the attorney general to authorize warrantless surveillance. He would decide whom to monitor and under what circumstances. Decisions that had been the province of a federal judge for almost three decades would now reside with a man that many Democrats believed had lied to Congress. Lawmakers were still smarting from Gonzales’s earlier testimony about the surveillance regime, when he hedged his answers and coyly let on that there was more to the “president’s program” than what the president had acknowledged. It was unthinkable for the Democrats to give Gonzales carte blanche to monitor the global telecommunications system. Whatever assurances McConnell gave that U.S. persons would have warrant protections looked laughable in light of this new proposal.
McConnell was perplexed. The Democrats seemed to think that he was going to come back with a bill that didn’t reflect the administration’s positions. He didn’t think that he’d agreed to anything during the phone call. But the Democrats believed that McConnell had given them certain assurances. This document he handed them now was a breach of trust.
Was it possible the entire affair was a big misunderstanding? Given the high stakes, the rapid-fire pace, and McConnell’s own propensity for imprecision, that was entirely plausible. McConnell certainly felt so.
The negotiations broke down before midnight. The congressional recess drew closer. That night McConnell put out a public statement that offered one small concession. The new law would require that the attorney general and the DNI sign off on surveillances. But it wasn’t much of an olive branch. Congress must “urgently close the gap” in a law that “does not allow us to be effective,” he said. The next day President Bush paid a visit to FBI headquarters in downtown Washington. After meeting with counterterrorism and security officials, he spoke briefly to reporters and tightened the screws on his opponents. “We’ve worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk,” he said. “Time is short.” The administration had successfully jammed FISA through the opposition. The Democrats were outmaneuvered once again.
On August 4, about twenty top Democrats huddled in the Speaker’s office. This time they discussed how to handle a surveillance bill passed by their Senate colleagues the previous evening, before they left town. Dubbed the Protect America Act, it made legal most of what the administration had been doing for years in the shadows. It was the solution that the White House wanted. The Democratic leaders had no power to oppose it. The House voted decisiv
ely in favor of the bill, with the Blue Dog contingent making up a significant number of the yea votes.
To say that the Protect America Act had “updated” FISA, or had “fixed” the law, implied that it was a minor modification. But Congress had given the government unprecedented modern surveillance powers. The intelligence agencies would be able to obtain blanket authorizations—not warrants—to monitor whole groups of people, potentially even whole countries. Rather than review those surveillances on a case-by-case basis, the court would simply confirm that the administration had a reasonable basis to believe that the targets were of foreign intelligence value, and that the surveillance wasn’t intended to target Americans. The new law didn’t allow warrantless surveillance of Americans inside the United States, but that hardly mattered if one were trying to gauge just how much it differed from its predecessor. Thousands, potentially hundreds of thousands, of Americans’ communications would be swept up as the NSA monitored the global telecom system. The best assurance those people had that their information wouldn’t be misused now came from the government agents conducting the surveillance. It was up to them to decide whether the phone call or the e-mail had any “nexus to terrorism.” McConnell believed that those agents were good people, honest people. And certainly most of them were. But they were the Watchers. Who was watching them?
The Democrats never forgave McConnell. They’d forever see him as a double dealer. A day after the House passed the bill, Bush signed it into law. Democrats consoled themselves with the knowledge that the war was not finished. The lawmakers inserted a six-month sunset clause, which meant that the Democrats could regroup and come back with a new strategy. However, a little-noticed part of the legislation stated that all surveillances authorized by the attorney general and the DNI were good for one year. The law might expire in six months, but the watching would remain in effect, potentially for the rest of the Bush administration.