NEW YORK - The American Civil Liberties Union today condemned recent comments of Director of National Intelligence, Mike McConnell, regarding the administration's warrantless surveillance activities under the Foreign Intelligence Surveillance Act (FISA). The comments, made to the El Paso Times, continue a pattern under which government officials strategically and selectively disclose classified information in order to advance the administration's legislative agenda or broader political goals. Since McConnell's comments included specific references to previously classified court rulings from the Foreign Intelligence Surveillance Court (FISC), the ACLU also renewed its call for the release of those orders and legal opinions.
"This administration has a history of selectively releasing classified information in order to further its political goals, and it's difficult not to see Mr. McConnell's disclosures in this context," said Jameel Jaffer, the Director of the ACLU's National Security Project. "If this ostensibly sensitive information can be released now, why could it not be released two months ago, when the public and Congress desperately needed it? And what classified information will the administration be willing to release tomorrow if the political winds shift again?"
The ACLU noted that McConnell's disclosures relate to court orders that have been withheld in their entirety from the public. Earlier this month, the ACLU filed a motion with the FISC asking it to release the orders and legal opinions that, according to administration officials, necessitated the recent expansion of FISA. Last week, the FISC ordered the government to respond to the ACLU's motion by August 31.
"In a debate about whether the administration's surveillance powers should be expanded, the administration is not a disinterested party and its disclosures may be selective, incomplete, and self-serving," said Jaffer. "If the FISC's rulings can be made public without jeopardizing national security, they should be made public immediately."
McConnell told the El Paso Times that a May 31 FISC ruling required the government to get court warrants to monitor communications between people overseas if the conversation travels through a U.S. network. That ruling apparently played a large role in the recently passed legislation, but the legislation went far beyond addressing that particular concern.
In addition, McConnell talked about the length of time it takes to assemble FISA warrants and the number of people in the U.S. monitored under FISA warrants, and he confirmed that private telecom companies assisted in the administration's warrantless surveillance program. There are currently several lawsuits pending against those companies for such participation, but the government has claimed the lawsuits should not proceed due to "state secrets" concerns. McConnell reiterated his determination to lobby Congress as early as September to provide complete immunity for the telecom companies as well as to expand the administration's domestic spying authority even further.
In addition, just this week, the administration missed the second deadline for responding to congressional subpoenas requesting information about the government's spying program.
"It is outrageous that this administration has failed to turn over information critical to Congress and the public about its surveillance program while the National Intelligence Director is out giving interviews in which he reveals only what he wants to, when he wants to, and in the context he wants to, at his own discretion and accountable to no one," said Caroline Fredrickson, Legal Director of the ACLU Washington Legislative Office. "It is more vital than ever now, with incomplete and potentially slanted information out there, that Congress continue to relentlessly pursue these subpoenas. This selective declassification for political gain is unacceptable - it was appalling enough when Majority Leader Boehner went on TV with partial declassified information about the FISC decisions, but then for the supposedly non-partisan National Intelligence Director to do so is beyond the pale."
The ACLU also said that it was entirely inappropriate for McConnell to play the large role that he did in lobbying members of Congress to pass the recent legislation, threatening them that a possible future terrorist attack would be on their hands if they failed to do so.
"Many Democrats were assuredly under the incorrect assumption that the National Intelligence Director was a non-partisan figure providing unbiased information," said Fredrickson. "His recent behavior certainly makes one wonder."