Intelligence chief scolded for being 'disingenuous'

Policy watchers at the latest in a string of hearings about anti-terrorism surveillance might have experienced some deja vu Tuesday when the nation's top intelligence official appeared before the Senate Judiciary Committee.

Echoing testimony from his House Judiciary Committee last week, National Intelligence Director Michael McConnell told the panel that recent, temporary changes to the 1978 Foreign Intelligence Surveillance Act were vital in light of technological advances. Updates to electronic spying provisions that were rushed through Congress in August addressed deficiencies because "FISA was enacted before cell phones, before e-mail and before the Internet," he said.

When the law was originally enacted, McConnell said, "almost all local calls were on a wire and almost all international communications were in the air, but today, most overseas calls using wire and local calls pass through the air.

Committee Chairman Patrick Leahy interrupted McConnell's opening statement to complain about his recurring "disingenuous" references to the 1978 law. "It has been amended about 30 times since then," the Vermont Democrat said. "It has been dramatically changed."

McConnell said those updates did not go far enough and the latest modifications, which sunset in six months, should be made permanent. That statute allows the national intelligence director and attorney general to approve some spying without first getting warrants from a secret court created by the underlying law.

Leahy said the new law provides "no meaningful check" by the FISA court or Congress and "does not even require the government to have its own internal procedures" to protect Americans' privacy. He and other Democrats still favor a failed proposal that they believe would have addressed many of the administration's concerns.

Panel ranking Republican Arlen Specter of Pennsylvania said "congressional response to the administration's requests really depends largely on trust," and that relationship has been strained. He told McConnell he does not "want to wait until the last minute to make another hasty decision," as happened in August.

Massachusetts Democrat Edward Kennedy said FISA changes advocated by the White House still are not fully understood, so Congress cannot be expected to grant their permanence. McConnell offered to brief senators "wholly and completely" in a closed session.

Kennedy and Wisconsin Democrat Russell Feingold also pressed McConnell about the administration's immunity request for telecommunications firms that reportedly assist in eavesdropping. "If the warrantless surveillance program was legal, as claimed, what do carriers need immunity from?" Kennedy asked.

McConnell said the safeguards would be retroactive to counter multiple lawsuits brought against major telephone and Internet providers since the spying initiative was made public.

He also said he has recommended that the committee be given materials that provide "the appropriate level of insight" on the immunity issue but would not say whether he suggested handing over presidential authorizations and Justice Department opinions, which Leahy has requested.

A second panel of witnesses included former Justice Department intelligence official James Baker, attorney and intelligence expert Bryan Cunningham, Center for Democracy and Technology Policy Director James Dempsey, and national security consultant Suzanne Spaulding.