The Director of National Intelligence, Mike McConnell, is seeking to persuade lawmakers to expand and update the Foreign Intelligence Surveillance Act at a difficult time.
McConnell made his case before the Senate's Select Intelligence Committee just weeks after the Justice Department's inspector general found out that the FBI abused its broad authority to investigate terrorism.
Democratic senators say the discovery of the FBI's abuse of special subpoenas, known as National Security Letters, had given them pause when it came to expanding any spying powers that the executive branch might have. And McConnell was coming before the committee to do exactly that.
"In the context of all of that, you got some uphill sledding with me," Sen. Sheldon Whitehouse (D-RI) told McConnell.
The Bush administration sent out the broad outlines of a new, updated FISA that included, among other things, an expansion of the kind of communications that spy agencies could tap without a court order. They want the law to be, in McConnell's words, "technology neutral" so that the intelligence community won't be caught out by advances in communications.
"The FISA legislation is not agile enough to handle the country's intelligence needs," McConnell told the committee. "Enacted nearly 30 years ago, FISA has not kept pace with the 21st century developments in communications technology. I think many Americans would be surprised at what the current law requires."
The FISA law was written in 1978, McConnell said, when most local calls came over hard lines, and international calls used satellites. To protect Americans from domestic spying, the law said that the intelligence community had to get special permission to listen to the so-called hard line phone calls. Now most local calls are wireless, and international calls are over fiber-optic cables but the law hasn't changed to reflect that. FISA is so outdated, it hobbles America's ability to track terrorists, McConnell said.
"Under the construct today, the way the definitions have played out and applied because of technology changes, we're actually missing significant portions of what we should be getting" from overseas phone calls, he said. "The changes proposed are intended to make FISA so that as communications technology develops – which it absolutely will – the language of the statute does not become obsolete."
Privacy groups say the administration wants more than just a technological update for FISA.
"This bill would redefine what is subject to judicial orders," said Lisa Graves, deputy director for the Center for National Security Studies. "It would allow the government free rein to spy on the content of Americans' international communications, and we can't let them do that."
Democrats and privacy groups focused on what they saw as the administration's pattern of allowing civil liberties and privacy rights to take a backseat in the war on terrorism. Republicans, however, gave McConnell an opportunity to show just how important FISA warrants have become in battling terrorists who seek to attack the United States.
"Just how important is FISA?" Sen. Kit Bond (R-MI) asked the National Intelligence chief.
"It is the most significant tool we have to target and be successful in preventing attacks," McConnell said. He declined to be more specific, saying it was classified.