Just when you thought it was safe to go on vacation…

Congress and the administration have been busy bees the past week, haggling over modifications to the Foreign Intelligence Surveillance Act. The new law effectively legalizes much of what the National Security Agency has been doing since 9/11 under the so-called Terrorist Surveillance Program. Intelligence agencies now can intercept communications from individuals outside the United States–including American citizens–without warrants. The significant element here is that now, the NSA and others don’t have to stop surveillance and obtain a warrant when the target who is outisde the United States communicates with someone inside the United States. That’s the big change. And while it’s important to emphasize that the government cannot target someone inside the country without a warrant–the target has to be overseas–the new law significantly broadens intelligence-gathering powers in a number of important ways.

Perhaps the most significant, and so far least-reported aspect, is that the new law doesn’t narrow these powers to collecting intelligence about terrorism. In fact, the words “terrorist” and “terrorism” never appear in the law at all. The operative term here is “foreign intelligence.” This new law should be read not just in the context of counterterrorism, but as a broader modification of the government’s eavesdropping and surveillance powers.

The story is still developing, and we’ll likely have to wait a while to understand the new law’s effects fully. But here are some quick pointers.

First, NPR’s Talk of the Nation addressed the issue yesterday in a half-hour segment. I joined a panel of guests including Sen. Bob Casey (D-Penn.), who voted for the new surveillance law, and Rep. Anna Eshoo (D-Calif.), who voted against it. Diane Rehm is also devoting her show this morning to the topic.

James Risen also had a piece in yesterday’s New York Times that looks at how the law broadens the intelligence agencies’ powers. This really got under the White House’s skin–recall that Risen was one of two reporters who revealed the NSA’s warrantless surveillance in December 2005–and yesterday the press office issued a rebuttal. Note that the White House doesn’t say Risen’s story is wrong, and that he does point out that the new law doesn’t allow warrantless surveillance of a target inside the United States.

One larger story here is how and why the Democrats acceded to much of what the administration was asking for with regards to “updating” FISA. Part of the explanation is pure math–Nancy Pelosi knew that the Dems didn’t have to votes to defeat the bill. But there is much to learn here about how the Democrats view themselves as a majority party on national security issues.

It’s also important to note that many credible experts are arguing this new law does not significantly enhance the government’s surveillance powers. We will hear a lot of debate on that point in the coming weeks, and it will frame the discussion when this new law comes up for reauthorization in six months.

I joined two members of Congress today to discuss the latest change to the Foreign Intelligence Surveillance Act.

No big surprise here, but an important admission from Mike McConnell, the Director of National Intelligence. In a letter to Arlen Specter (Penn.), the top Republican on the Senate Judiciary Committee, McConnell acknowledges that the president authorized the National Security Agency to undertake “various intelligence activities,” after the 9/11, aimed at preventing another terrorist attack. I and others have reported on some of these activities over the past year-and-a-half, but McConnell’s letter marks the first time any administration official has so publicly acknowledged that the NSA is doing more than just “wire tapping,” or intercepting phone calls.

Presumably, McConnell’s letter is meant to provide legal cover for Attorney General Alberto Gonzales, whose testimony about his 2004 nighttime visit to John Ashcroft’s hospital room left Specter and his colleagues wondering if Gonzales had told them the whole truth about internal disagreements over the NSA “program” at the Justice Department. Gonzales tried to tell Senators that there was no disagreement over the program that the president acknowledged back in December 2005, which McConnell now says was just the wiretapping component, or, in his words, “the targeting for interception without a court order of international communications of Al Qaeda and affiliated terrorist organizations coming into our going out of the United States.”

McConnell is asking members of Congress to change the law that governs such interceptions–the Foreign Intelligence Surveillance Act– and apparently there’s significant disagreement over whether it can be applied to totally “foreign” communications that still pass through cables in the United States.

McConnell’s letter to Specter can be viewed in light of his very public lobbying efforts, and not solely as a blocking maneuver for Gonzales. Putting it out there that the NSA is, in fact, undertaking other intelligence activities under presidential order strengthens his argument that the intelligence laws need significant overhaul, not just minor tweaking. Remember, McConnell is a former NSA director, and has strong opinions on adapting intelligence laws to the hunt for terrorists. McConnell also led Booz Allen Hamilton’s intelligence division–after leaving NSA–and was involved in the Defense Department’s Total Information Awareness program, another effort to track terrorist movements and anticipate their plots.

Bottom line: McConnell has been trying to “modernize,” if you like, the intelligence community for the past several years. He has been more public about these efforts than many senior intelligence officials, and will continue to be so. He’s not the spokesman for this effort just because he’s the DNI–this is a personal mission for McConnell, as well.

UPDATE: According to the AP, Democratic leaders are signaling that a deal on FISA might be imminent.

With all the recent attention on the National Security Agency’s surveillance program–particularly that it was the so-called “data mining” aspects that drew Alberto Gonzales and Andrew Card to John Ashcroft’s hospital room back in 2004–I thought it was a good time to recall a story I wrote last summer.

This story goes into considerable detail about the NSA program, as well as DARPA’s Total Information Awareness. It gives a lot of the shared history of these two programs, and it offers the views of some key senior intelligence officials.

Members of the House Intelligence Committee have been engaged in a boisterous debate the past few days over how to change the law that governs electronic surveillance. Republicans are calling for an overhaul backed by the Director of National Intelligence, and Democrats are pushing back, saying that the administration’s proposed changes would eliminate many of the current checks-and-balances on the intelligence agencies.

In the latest round, ranking member Pete Hoekstra (R-Mich.) took issue with Democrats’ position that the inelligence law does not need to be amended to allow monitoring of foreign persons who are not in the United States. At first glance, the Foreign Intelligence Surveillance Act would seem only to govern surveillance conducted on U.S. persons inside the United States. (That’s the Democrats’ contention, too.)

But the Republicans have a different view, which–if you closely read a letter Hoekstra sent yesterday to committee chairman Silvestre Reyes (D-Tx)–sheds more light on the particulars about how the government is conducting electronic surveillance.

“You claim that FISA does not require a court order for communications between foreign targets outside the United States. This does not fully or accurately state the law with respect to FISA, and your position would place intelligence community personnel at potential risk of criminal liability if they were to operate outside of FISA without clear legal authority.”

If they were to operate outside FISA without clear legal authority. How would intelligence community personnel operate outside FISA? Hoekstra explains:

“Not all of our intelligence is collected under the specific provision of law you mention, and in any event our personnel need clear and binding legal authority in order to obtain cooperation and to have full assurance that their activities are lawful.”

FISA isn’t the only provision that allows electronic surveillance. The president’s authorization of the National Security Agency’s warrantless surveillance program also allows it. In addition, Executive Order 12333 gives the intelligence agencies authorities to collect information inside the United States under specific circumstances. But key in on the last bit of Hoekstra’s comments: “in order to obtain cooperation and to have full assurance that their activities are lawful.”

Does Hoekstra mean cooperation from telecommunications companies? Quite possibly. Why is that important?

“Wiretapping” is no longer a matter of climbing up a telephone pole and putting a bug on the line. The government cannot intercept communications without access to telecom networks–i.e. “cooperation.”

The majority of the world’s telecom infrastructure is in the United States. We are a hub of global communications. Theoretically, a terrorist in Pakistan e-mailing another terrorist in Algeria could have his message routed through New Jersey. The Republicans seem to be arguing that, under FISA, intercepting that communication inside the United States violates the law, even though the parties to said e-mail reside in foreign countries. The question is, does it violate FISA to grab a “foreign” communication as it passes through our “domestic” infrastructure?

The telecom companies have asked for a a kind of legal immunity for cooperating with government surveillance. Congress has been debating that provision. Hokestra’s comments seem to reflect the companies’ anxiety that they might technically be violating FISA if they allow the government to intercept communications by foreign parties on equipment based in the United States.

We’ve seen threads of this theory before, and the debate is no secret. But the war of words between Democrats and Republicans over how to change FISA has been particularly hot this week. This latest salvo by Hokestra is a strong indication that this question over whether, or how, to allow surveillance of foreign persons “inside” the United States is a major sticking point in the FISA reform debate.

Sens. Joe Lieberman (D-Conn.), Susan Collins (R-Maine), and Hillary Clinton (D-N.Y.) have asked the Government Accountability Office for a detailed report on the case of Andrew Speaker, the Georgia man who was able to slip back into the United States, through Canada, even though federal health and security officials thought he was infected with an extremely drug-resistant strain of tuberculosis.

Lieberman, who chairs the Senate committee overseeing the Homeland Security Department, and his colleagues sent a letter yesterday to GAO chief David Walker, asking for a “thorough chronological account of the significant events and communications that occurred…” The incident “raises questions not only about events that transpired…but in the federal government’s overall approach to safeguarding our nation from public health threats before they reach our borders,” the Senators wrote.

Speaker’s case also raised serious questions about how the federal government has adapted to the specific nature of terrorists threats–namely, that terrorists do not behave rationally and frequently engage in unpredictable behavior. Speaker was no terrorist–and as it turns out, he had a less-serious form of TB than previously thought–but many of his evasive actions, to include entering the United States through Canada in an apparent attempt to avoid detection by U.S. authorities, shed a light on the government’s terrorism responses. At many points in the tale, officials seemed to think that Speaker would behave rationally and not try to slip past them.

The full text of the senators letter follows:

July 24, 2007

The Honorable David Walker, Comptroller General
U.S. Government Accountability Office
441 G Street, NW
Washington, DC 20548

Dear Mr. Walker,

The recent case involving Andrew Speaker’s putative extensively drug-resistant tuberculosis (XDR-TB) has exposed a disturbing picture of the federal government’s ability to respond to a known public health incident and protect our homeland security. Thankfully it appears unlikely that this incident has resulted in the infection of more individuals with TB, but we must determine exactly what went wrong and do all that we can to ensure this does not happen again. The miscommunication, insufficient coordination and the ultimate response on the part of the agencies involved are troubling.

We, like many others, are concerned by the public health threat posed by both XDR-TB and multidrug-resistant tuberculosis (MDR-TB), and we believe the events of the past few weeks highlight the lack of preparedness on the part of our government in responding to a public health incident. Although both XDR-TB and MDR-TB make up less than 2% of the over 13,000 cases of tuberculosis reported in the United States on an annual basis, they present a grave public health threat. In addition to the individual threat that is posed by drug-resistant TB, this incident goes to the heart of our nation’s response to serious public health threats.

Mr. Speaker’s ability to cross our borders raises questions not only about events that transpired at that inland port but in the federal government’s overall approach to safeguarding our nation from public health threats before they reach our borders.

We should never again have a situation where delays and failures in communication between the federal government, other domestic public health officials and relevant commercial entities lead to needless exposure and risk. We need to assure the American people that our government can respond in a coordinated manner to these types of public health incidents. This incident should serve as a wake-up call that we need to establish and exercise effective plans to deal with the travel of known public health threats.

To help us better understand this incident, we would like GAO to (1) review and describe the sequence of events, establishing a thorough chronological account of the significant events and communications that occurred, and (2) assess the sequence to answer the following questions:

* To what extent did responsible federal agencies and other key organizations–including CDC, DHS, DOT, and relevant state and local health departments, international health organizations, foreign governments, and airlines–have plans, protocols, agreements, and processes in place to provide for effective coordination and information sharing and for prompt notification and response to the incident?
* To what extent were these followed?
* What information systems, databases, and networks were used in responding to this incident? To what extent did they provide needed information in a timely manner?
* What lessons learned did the incident reveal about the systems, processes, and protocols used to respond and how are agencies integrating these lessons learned to prevent future such incidents? What quarantine protocols or procedures are applicable to similar incidents? How are agencies safeguarding civil liberties when implementing changes?

As you proceed with this study, we ask that GAO apprise us of any external impairment that could potentially delay its completion in a timely manner. If you have any questions regarding this request, please contact us or our staff.

Sincerely,

Joseph I. Lieberman
United States Senator

Susan M. Collins
United States Senator

Hillary Rodham Clinton
United States Senator

That’s what Senators want to know. Gonzales is testifying right now before the Judiciary Committee–not exactly his favorite audience–about a host of issues. But earlier, Senators grilled him over the famous nighttime visit Gonzales and then White House Chief of Staff Andy Card paid to John Ashcroft, back in March 2004, when the attorney general was gravely ill and sedated at George Washington University Hospital.

Ashcroft’s attorney general designate, Jim Comey, provided riveting blow-by-blow details of the event during his own testimony a few months ago, and told senators that he thought Gonzales and Card were trying to take advantage of Ashcroft’s weakened state in order to get him to sign-off on a reauthorization of the National Security Agency’s warrantless surveillance program.

No, no, no…big misunderstanding, Gonzales said this morning. “We went there because we thought it was important for [Ashcroft] to know where the congressional leadership was on this,” Gonzales told Senators. He said that lawmakers from both parties had urged him and Card to ensure that the NSA program–which Gonzales didn’t actually identify in his testimony–was re-approved before a pending expiration deadline. (As an aside, you could count on two hands the number of lawmakers who actually knew the program existed.) The way Gonzales tells it, he and Card were just there to bring Ashcroft up to speed on Congress’ thinking.

The senators are finding this hard to believe, given Comey’s account. He said that not only did the White House call over to Aschroft’s hospital room and inform his wife that Card and Gonzales were on the way–and Comey seems to recall that that call may have come from President Bush himself–but that when the two men showed up, they were carrying an envelope, in which we are to presume was a document requiring Ashcroft’s signature.

What’s more, Comey testified that Ashcroft raised himself up from his hospital bed and read Gonzales and Card the riot act, ticking off all the reasons why he wasn’t willing to reauthorize the warrantless surveillance. This was no friendly exchange. Comey said, “[Ashcroft] lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me…”And then, in a line that would make a Hollywood action writer blush, Ashcroft declared, “But that doesn’t matter, because I’m not the attorney general. There is the attorney general.” He pointed to Comey. This is edge-of-your seat material.

What happened next? Comey said, “The two men [Gonzales and Card] did not acknowledge me. They turned and walked from the room.”

Now, today, Gonzales insisted that he and Card hadn’t come to pressure Ashcroft into signing anything. “Clearly if he had been competent and understood the facts and had been inclined to do so, yes we would have asked him,” Gonzales added. “Andy Card and I didn’t press him. We said ‘Thank you’ and we left.”

Gonzales clarified this way: “We would not have sought nor did we intend to seek to get any approval from General Ashcroft if in fact he was not fully competent to make that decision.” Key phrase: “if in fact he was not fully competent.” Gonzales isn’t denying that he and Card went to the hospital to get Ashcroft’s approval. He’s just saying that they didn’t intend to seek it if he was not fully competent. At the very least, it seems that Gonzales and Card went to Ashcroft’s bed side to see how sick he really was. There’s no doubt about what they wanted, and according to Comey, they got it–the White House later reauthorized the program without the attorney general’s signature. It took the threat of resignation–by Comey, Ashcroft, and FBI Director Robert Mueller–to compel President Bush to order his staff to bring the NSA program in line with Comey’s and Ashcroft’s concerns.

White House spokesman Tony Snow told reporters this morning that President Bush has not ruled out military action in Pakistan’s tribal areas against Taliban and Al Qaeda forces. Aboard Air Force One, Snow said, “We never rule out any options, including striking actionable targets.” By actionable targets, Snow presumably means individuals or Al Qaeda holdouts that the United States knows about and can hit.

The full text of the exchange with a reporter follows:

Q Can I change the subject to Pakistan? Does the President have full confidence in Musharraf, particularly given the violence there from the Islamic —

MR. SNOW: Well, I think — look, President Musharraf has put his life on the line and has been a very important ally in the war on terror. It’s also clear that Taliban and al Qaeda, in the northwest territories and the federally administered tribal areas, have begun to put on operations that threaten the government of Pakistan itself, which is why President Musharraf, having tried one approach, in terms of dealing with the tribal leaders, is now going to have to be more aggressive and is being more aggressive moving forces into the region to deal with the security problems there.

Q Does the President rule out any U.S. military activity in Pakistan?

MR. SNOW: We never rule out any options, including striking actionable targets.

When asked, “Would the President seek Musharraf’s permission to strike an actionable [target]?” Snow refused to say one way or the other. “Those are matters that are best not discussed publicly,” he said.

This represents an increase in the U.S. pressure on Musharraf–which was already considerable–and effectively puts him on notice directly from the White House: If Musharraf can’t handle the Al Qaeda problem, the United States will.

Since the release of the new intelligence estimate on Al Qaeda Tuesday, the one that concluded the terrorist group has revitalized itself in the lawless hinterlands of Pakistan, intelligence analysts I talk to have been wondering why the administration chose to release the NIE now. Certainly the White House understood that its critics–and some of its supporters–would seize on the NIE’s key judgement that Al Qaeda is stronger today and is poised to attack the United States as a repudiation of the president’s war strategy, namely, that we should fight terrorists in Iraq so they don’t attack us at home.

A nascent and evolving theory is that the administration is signaling now, to Pakistani President Pervez Musharraf and the world, that the United States is more prepared than it has been in years to send American forces into Pakistan’s lawless tribal areas to do what Musharraf either cannot or will not–rout the resurgent Al Qaeda.

Consider some of the key plot points that have led to the current moment in the Pakistan narrative. In February, Defense Secretary Robert Gates made a surprise visit to Pakistan, ostensibly to ease the “war of words” between that country and Afghanistan over what to do with the troubled tribal areas. But Gates was also there to deliver a message to Musharraf–you need to do more to fix this problem.

About two weeks later, Vice President Dick Cheney flew to Islamabad to meet with Musharraf, taking with him the CIA’s deputy director, Stephen Kappes, an seasoned spy and longtime Asia hand who had served in Pakistan. This was not a cordial call. Musharraf’s intelligence services were, and still are, in shambles. Officials don’t know who is loyal to Musharraf and who is loyal to jihadits in Pakistan, and this limits their effectiveness. Musharraf clearly lacks the human intelligence to get close to Al Qaeda without seeing his own troops slaughtered. So, one has to conclude that Kappes was there to provide the Pakistani president with more than moral support. The CIA is giving him intelligence, likely helping him understand who in his own country is trying to kill him, and to help Musharraf deal with the tribal areas. (Apparently this strategy hasn’t been terribly effective, if the intelligence community’s own judgment is that Al Qaeda is strong again.)

At the same time Cheney and Kappes were meeting with Musharraf, senior intelligence officials were briefing reporters on the growing threat of Al Qaeda in Pakistan, telling them that the organization had replenished its middle ranks. Intelligence indicated that the foiled British planes bombing plot the previous year had an operational link to the resurgent group, they said.

Fast forward to this month. The New York Times reported that, in 2005, the Pentagon called off a clandestine U.S. strike in the tribal areas aimed at capturing Al Qaeda officials. Then Defense Secretary Donald Rumsfeld worried that the strike–which apparently had ballooned into a full-fledged invasion when military planners demanded security cover–would jeopardize U.S.-Pakistan relations. But in leaking this story two years later, the message to Musharraf from the Pentagon and the intelligence community was clear: We hesitated then, we won’t now.

That brings us to this week’s NIE, which put the official stamp on what we’ve known for months. A few days before its release, the intelligence community’s top analyst publicly briefed members of Congress on the substance of the Pakistan problem.

Taken together, this build-up in U.S. anxiety–first expressed in surprise visits by top officials, now playing out in congressional testimony and public intelligence documents–signals that the Bush administration is dispensing with its light-touch strategy. It was that approach that kept thousands of combat troops from descending into the tribal areas in 2005. This has been replaced by tough public rhetoric and an undercurrent of hostility.

One has to wonder if the administration thinks the time for words has past. Is the United States moving towards its own military solution to Al Qaeda in Pakistan? The administration has stayed off that course for fear it would so badly destabilize Musharraf that he would lose his grip on power, with disastrous consequences for American interests. Well, the country appears to be sliding into instability, so perhaps one objection has gone away. But if Al Qaeda really has re-charged its batteries, and is more capable of striking out from Pakistan today than it has been in years–which is now the official line–then the administration might think it has no choice but to strike, if Musharraf won’t.

It sounds implausible given the administration’s cautious strategy to date. But consider what would happen if an Al Qaeda cell linked to Pakistan mounts a devastating attack in the United States. The United States would respond with full force, a la Afghanistan in 2002. Is the administration prepared to wait for that moment? I think that you can read between lines of the past several months and conclude, “Probably not.”

My colleague at Government Executive magazine, Katherine McIntire Peters, has a good story about the exodus of senior officials in the Homeland Security Department’s upper ranks.

Senior Homeland Security Department employees left their jobs over the past two years at rates significantly higher than the average for other Cabinet-level departments, according to a report released Monday by the Government Accountability Office.

Attrition rates for Homeland Security’s Senior Executive Service positions or those requiring presidential appointment were 14.5 percent in 2005 and 12.8 percent in 2006, the report (GAO-07-758) stated. That’s more than twice the average attrition at all Cabinet-level departments of 7 percent and 6 percent during the same years.

Over the past several weeks, we’ve seen a procession of stories about leadership woes at DHS, which are intensified by the pending transition of power from the Bush administration to the next president, in January 2009. I wrote about this issue in National Journal last month. Then Congress and the Washington Post noted the preponderance of vacant posts in DHS’ upper echelons.

Katherine’s story on this latest GAO report sheds even more light on the problem. In the past two years, more than half of the senior employees at DHS headquarters in Washington “either resigned or transferred to another department,” she reports. In light of employee satisfaction surveys that put DHS at or near the bottom in most categories, one can imagine that a good number of these employees left not just because they got new jobs, but because they wanted out of DHS. “Executives at headquarters, the Transportation Security Administration and the Federal Emergency Management Agency had the highest attrition rates,” Katherine reports. Those three organizations, perhaps more than any others in the department, have suffered from low morale, bad publicity, and frequent turnover at the top.

Turnover was also higher than the government average among career, non-senior DHS employees–8.4 percent in 2005 and 7.1 percent in 2006. The overall average for federal agencies was 4 percent. Most of these numbers were accounted for by security screeners at airports, who make up more than one-third of the total DHS workforce. Factoring them out, DHS’ numbers for non-senior employees’ attrition fell below the federal average. Of course, the fact that there’s so much turnover among the people charged with keeping terrorists and bombs off of airplanes might give overseers some pause.