Wash. Post, CNN ignored McConnell's retraction on role of newly expanded FISA in German terror arrests


After reporting on National Intelligence Director Mike McConnell's claim that the recently approved law expanding the government's ability to eavesdrop on U.S. citizens contributed to arrests in Germany, The Washington Post and CNN have not subsequently reported that McConnell has since acknowledged that the newly passed law did not factor into the German arrests.

On September 11, The Washington Post and CNN reported that, during his September 10 Senate testimony, Director of National Intelligence Mike McConnell claimed that recently approved legislation expanding the government's authority to eavesdrop on U.S. citizens without warrants had aided the German government in its September 5 arrests of three people suspected of plotting terrorist attacks against U.S. and German targets. However, neither the Post nor CNN has noted that McConnell has since retracted that claim, even though both outlets reported his initial statements.

On August 6, President Bush signed into law the Protect America Act of 2007, which, as The New York Times reported, "broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants." According to the Times, the law, set to expire six months from its enactment, "gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court."

On September 10, during a hearing of the Senate Homeland Security and Governmental Affairs Committee, Sen. Joseph I. Lieberman (I-CT) said to McConnell, "[B]efore we broke for August we had quite a go-round about FISA, and we adopted legislation. I wanted to ask you to speak for a moment about that, and if you can in this open setting, there have been some press suggestions, media suggestions that the U.S. through your office was able to assist the German government in the apprehension of those plotting terrorist attacks against American targets in Germany." McConnell went on to claim that the new legislation assisted in the German arrests:

MR. McCONNELL: With the Foreign Intelligence Surveillance Act under consideration for updating, we found ourselves in a position of actually going backwards, losing capability, because of the interpretations of the law. And --

SEN. LIEBERMAN: Right, by courts.

MR. McCONNELL: Yes, sir. By the FISA Court looking at the requests it was actually taking us too much time, and because of the interpretations, we were losing ground. So the approach we took was to ask for basically three things.

First of all, do not require the intelligence community to obtain a warrant when we're targeting a foreigner, a terrorist in a foreign country. We had found ourselves in the position, based on the interpretation of the law, we were being asked to get warrants against terrorists operating in a foreign country. So we asked for relief for that.

The second thing, for those that -- private entities that assisted us, we needed to have some protection for them with regard to liability.

And the third thing, quite frankly, was in the interests of protecting civil liberties and the privacy of Americans we felt it was appropriate to be required, as we were in the old FISA legislation, to have a warrant for any time we target a U.S. person. That would include even a foreigner in this country suspected of being a terrorist. So we thought it had the right balance.

It was passed, as you well know, and we're very pleased with that. And we're better prepared now to continue our mission; specifically Germany, significant contributions. It allowed us to see and understand all the connections with --

SEN. LIEBERMAN: The newly adopted law facilitated that during August?

MR. McCONNELL: Yes, sir, it did.

Both the Post and CNN reported McConnell's claims the following day. From a September 11 Washington Post article:

Under questioning by senators, McConnell suggested that U.S. intelligence on the men was enhanced by a controversial measure approved by Congress last month. The law, signed by President Bush on Aug. 5, gave U.S. spy agencies greater freedom to eavesdrop on overseas calls without a warrant, even when those calls are routed through phone lines and cables on U.S. soil.

But other U.S. officials confirmed that the German cell was discovered last October, more than 10 months before the law was adopted. A spokesman for McConnell declined to elaborate further on his remarks. Surveillance of overseas communication has always been permitted under U.S. law.

From the September 11 edition of CNN's American Morning:

JOHN ROBERTS (co-host): Yeah, it took a long time, but finally coming back to life.

As we remember 9-11 today, the government is trying to prevent the next terror attack. Top counterterrorism officials testified before a Senate committee yesterday. Homeland Security Secretary Michael Chertoff says the government is better prepared to disrupt a terror plot now than it was six years ago.

CHERTOFF [video clip]: It is clear to me that we are much safer than we were prior to September 11, 2001. It's also clear to me that we have more work to be done, because, as you said, Mr. Chairman, the enemy's not standing still. They are constantly revising their tactics and adapting their strategy and their capabilities. And if we stand still or worse yet, if we retreat, we are going to be handing them an advantage that we dare not see them hold.

ROBERTS: And the director of national intelligence, Mike McConnell, also said eavesdropping on potential terrorists helped break up a major plot that targeted Americans at Ramstein Air Base and elsewhere in Germany.

However, as the Los Angeles Times reported on September 13, the validity of McConnell's claim was questioned almost immediately after the hearing, and that McConnell himself -- under questioning from reporters and pressure from congressional Democrats -- acknowledged that the newly passed law had not factored into the German arrests:

But the U.S. intercepts were given to the Germans over the last year or so, according to intelligence officials, which meant that many of them would have been obtained under an old version of FISA that McConnell and some other administration officials had said was inadequate.

McConnell acknowledged so himself after the hearing, when questioned about the timeline by reporters. He said the FISA law in general was responsible for the intercepts, not the recently passed version of the law, which many Democrats opposed as lacking controls.

McConnell also called Sen. Joe Lieberman (I-Conn.), the committee chairman, on Tuesday to "clarify his testimony," a senior intelligence official said Wednesday. The official spoke on the condition of anonymity because he was not authorized to discuss internal policy matters.

But several lawmakers pressed McConnell for a public clarification, in letters and calls to his office, according to the intelligence official.

One of them, Rep. Jane Harman (D-Venice), said in public statements Wednesday morning that McConnell was improperly acting as a political cheerleader for the new FISA law when his job demands impartiality -- and that he was getting his facts wrong in the process.

"Excuse me, those people were under surveillance for 10 months," she said, citing news reports. Harman, chairwoman of the intelligence panel of the House Committee on Homeland Security, also criticized McConnell for disclosing classified information about the surveillance effort to a Texas newspaper last month while Congress was debating revisions to the law. And she accused him of improperly lobbying Congress on the issue.

"Jane to Mike, please stop undermining the authority of your office," Harman said during a panel appearance before the Council on Foreign Relations in Washington.

McConnell released a public statement on September 12, obtained by ThinkProgress, in which he acknowledged that "information contributing to the recent arrests was not collected under authorities provided by the Protect America Act."

McConnell issued a public statement on September 12, obtained by the Think Progress blog, in which he acknowledged that "information contributing to the recent arrests was not collected under authorities provided by the Protect America Act."

Posted In
Justice & Civil Liberties, Crime
The Washington Post, CNN
John Roberts
American Morning
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