FISA revisions and German arrests

NY Times:

The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told senators on Monday.

But another government official said Mr. McConnell might have misspoken. Mr. McConnell said the information had been obtained under a newly updated and highly contentious wiretapping law, the Foreign Intelligence Surveillance Act. But the official, who has been briefed on the eavesdropping laws and the information given to the Germans, said that those intercepts were recovered last year under the old law. The official asked for anonymity because the information is classified.

The previous law required officials to seek warrants to monitor at least some phone calls and e-mail messages between foreign locations when they were collected from fiber-optic cable in the United States; the new law waived that requirement.

This distinction is important because Mr. McConnell’s remarks, on the eve of the sixth anniversary of the Sept. 11 attacks, were an important part of the Bush administration’s intensifying effort to make permanent the new law, which is scheduled to expire in about five months. Democrats in Congress have said that they want to write more safeguards for civil liberties into the law before renewing it.

German officials have said that American intercepts of e-mail messages and telephone calls between Germany and Pakistan and Turkey tipped them off to the plot last year.

...

Mr. McConnell said the ability to listen in on the plotters “allowed us to see and understand all the connections” they had with a breakaway cell of a Central Asian terrorist group, the Islamic Jihad Union, operating in Germany. “Because we could understand it, we could help our partners through a long process of monitoring and observation, realizing that the perpetrators had actually obtained explosive liquids,” he said.

When Mr. Lieberman, noticeably impressed, later restated what Mr. McConnell had told him — that the eavesdropping ability allowed under the updated surveillance law helped foil the purported plot in Germany — Mr. McConnell did not object.

Without the current law, Mr. McConnell said, the country would lose “50 percent of our ability to track, understand and know about these terrorists, what they’re doing to train, what they’re doing to recruit and what they’re doing to try to get into this country.”

Many foreign-to-foreign communications pass through telecommunication “switches” on American soil, where the intercepts take place.

...

What should be clear is that the terrorist could have evaded surveillance under the old law by using equipment with US switching or by copying a bogus US address on an email. If they were not doing that before the change in FISA it was just out of luck. What this story does not disclose is the role of the NY Times and its writers in undermining US national security by disclosing the terrorist surveillance program. While the modifications to FISA are a good band aid a better solution is to do away with the law altogether. Anyone who does not want us monitoring calls from al Qaeda into this country does not have the safety of our citizens as their highest priority.